J-S40022-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
               v.                              :
                                               :
                                               :
    SIDNEY BURGESS,                            :
                                               :
                      Appellant                :   No. 1700 EDA 2016

                   Appeal from the PCRA Order May 27, 2016
              In the Court of Common Pleas of Philadelphia County
               Criminal Division at No.: CP-51-CR-0004901-2010

BEFORE: OTT, J., DUBOW, J., and STEVENS, P.J.E.*

MEMORANDUM BY DUBOW, J.:                                   FILED JULY 14, 2017

        Appellant, Sidney Burgess, appeals from the May 27, 2016 Order

entered in the Philadelphia County Court of Common Pleas dismissing his

first Petition filed under the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.

§§ 9541-9546. After careful review, we vacate the Order of the PCRA court,

vacate the Judgment of Sentence, and remand for resentencing consistent

with Alleyne v. United States, 133 S.Ct. 2151 (U.S. 2013).

        On December 2, 2010, a jury convicted Appellant of Possession of a

Controlled Substance with Intent to Deliver (“PWID”), Criminal Conspiracy,

and Possessing Instruments of Crime (“PIC”).1 On February 17, 2011, the

____________________________________________


*
    Former Justice specially assigned to the Superior Court.
1
  35 P.S. § 780-113(a)(30), 18 Pa.C.S. § 903, and 18 Pa.C.S. § 907,
respectively.
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trial court sentenced Appellant to an aggregate term of 5 to 10 years’

imprisonment.2 The trial court applied the mandatory minimum sentencing

provision set forth in 42 Pa.C.S. § 9712.1 (“Sentences for certain drug

offenses committed with firearms”).              This Court affirmed Appellant’s

Judgment of Sentence, Commonwealth v. Burgess, No. 687 EDA 2011

(Pa. Super. filed April 12, 2013), and our Supreme Court denied allowance

of appeal.     Commonwealth v. Burgess, No. 264 EAL 2013 (Pa. filed

August 23, 2013).        Appellant did not seek review by the U.S. Supreme

Court.     Appellant’s Judgment of Sentence, therefore, became final on

November 21, 2013. See 42 Pa.C.S. § 9545(b)(3); U.S. Sup. Ct. R. 13.

        Appellant filed the instant pro se PCRA Petition, his first, on April 22,

2014, raising, inter alia, an Alleyne claim.3         The PCRA court appointed

counsel, and counsel filed an Amended PCRA Petition on September 25,

2014.

        On April 25, 2016, the PCRA court filed a notice of its intent to dismiss

Appellant’s PCRA Petition without a hearing pursuant to Pa.R.Crim.P. 907.

On May 27, 2016, the PCRA court denied the Petition.
____________________________________________


2
 The trial court imposed no further penalty on the Criminal Conspiracy and
PIC convictions.
3
  In Alleyne, the U.S. Supreme Court held that, other than the fact of a
prior conviction, any fact that increases the penalty for a crime beyond the
prescribed statutory minimum must be submitted to a jury and proved
beyond a reasonable doubt. Alleyne v. United States, 133 S.Ct. 2151,
2160-61 (U.S. 2013).



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      Appellant filed a timely Notice of Appeal on June 1, 2016.              Both

Appellant and the PCRA court complied with Pa.R.A.P. 1925.

      Appellant presents three issues for our review:

      1. Did the [l]ower [c]ourt err in failing to find counsel ineffective
      for failing to object to and pursue on appeal the appearance of
      judicial bias that tainted the jury in the trial?

      2. Did the [l]ower [c]ourt err in failing to find that counsel was
      ineffective for failing to raise the issue of the mandatory
      sentences that the Appellant was subject to being
      unconstitutional at trial or on appeal?

      3. Did the [l]ower [c]ourt err in dismissing the PCRA Petition
      without holding an evidentiary hearing to determine counsel's
      ineffectiveness?

Appellant’s Brief at 9.

      We review the denial of a PCRA Petition to determine whether the

record supports the PCRA court’s findings and whether its Order is otherwise

free of legal error.      Commonwealth v. Fears, 86 A.3d 795, 803 (Pa.

2014).    To be eligible for relief pursuant to the PCRA, Appellant must

establish, inter alia, that his conviction or sentence resulted from one or

more of the enumerated errors or defects found in 42 Pa.C.S. § 9543(a)(2).

Appellant must also establish that the issues raised in the PCRA petition

have not been previously litigated or waived. 42 Pa.C.S. § 9543(a)(3). An

allegation of error “is waived if the petitioner could have raised it but failed

to do so before trial, at trial, during unitary review, on appeal[,] or in a prior

state postconviction proceeding.” 42 Pa.C.S. § 9544(b).




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      A PCRA petitioner is not automatically entitled to an evidentiary

hearing. Commonwealth v. Miller, 102 A.3d 988, 992 (Pa. Super. 2014).

The PCRA court may decline to hold a hearing if the petitioner’s claim is

patently frivolous and has no support either in the record or in other

evidence.     Id.   The reviewing court on appeal must examine each issue

raised in the PCRA petition in light of the record before it in order to

determine if the PCRA court erred in its determination that there were no

genuine issues of material fact in controversy and in denying relief without

conducting an evidentiary hearing.      Id.; see also Commonwealth v.

Roney, 79 A.3d 595, 604 (Pa. 2013) (applying abuse of discretion standard

to review of PCRA court’s denial of petition without a hearing).

      In his first two issues, Appellant avers that he received ineffective

assistance of trial counsel. The law presumes counsel has rendered effective

assistance.    Commonwealth v. Rivera, 10 A.3d 1276, 1279 (Pa. Super.

2010). “[T]he burden of demonstrating ineffectiveness rests on Appellant.”

Id.   To satisfy this burden, Appellant must plead and prove by a

preponderance of the evidence that: “(1) his underlying claim is of arguable

merit; (2) the particular course of conduct pursued by counsel did not have

some reasonable basis designed to effectuate his interests; and, (3) but for

counsel’s ineffectiveness, there is a reasonable probability that the outcome

of the challenged proceeding would have been different.” Commonwealth

v. Fulton, 830 A.2d 567, 572 (Pa. 2003). Failure to satisfy any prong of the


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test will result in rejection of the appellant’s ineffective assistance of counsel

claim. Commonwealth v. Jones, 811 A.2d 994, 1002 (Pa. 2002).

      Appellant first contends the court made two comments in front of the

jury that “demonstrated a judicial bias[,]” and trial counsel was ineffective

for failing to object, to move for a mistrial, or to seek the trial judge’s

recusal. Appellant’s Brief at 17.

      The two comments are as follows: (1) after defense counsel repeatedly

asked whether the police checked certain evidence for fingerprints and the

officer repeatedly responded that checking that type of evidence was not

proper police procedure, the trial court interjected “it’s not police procedure.

We’re not the FBI,” at which point defense counsel moved on to a different

line of questioning; and (2) after defense counsel repeatedly asked the same

officer whether, after Appellant told him that the drug money belonged to

him, the officer obtained that same confession in a written statement, the

trial court replied to the Commonwealth’s objection by stating that “he made

the statement.” N.T., 11/30/10, at 157-61.

      “A party seeking recusal bears the burden of producing evidence to

establish bias, prejudice, or unfairness[,] which raises a substantial doubt as

to the jurist’s ability to preside impartially.” Commonwealth v. Watkins,

108 A.3d 692, 734 (Pa. 2014) (citations omitted).        “If the appellate court

determines that the party alleging judicial bias received a fair trial, then the

allegation of judicial bias is not borne out.” Commonwealth v. Travaglia,


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661 A.2d 352, 367 (Pa. 1995). “[S]imply because a judge rules against a

defendant does not establish any bias on the part of the judge against that

defendant.” Id.

       In rejecting this claim, the PCRA court opined that the trial court’s

statements attempted to move the trial along by cutting off defense

counsel’s    repetitive    questioning,        and   that   the   statements   did   not

demonstrate judicial bias. PCRA Court Opinion, filed 11/30/16, at 4-8. We

agree with the PCRA court’s analysis.

       The PCRA court’s Opinion appropriately addressed this allegation of

ineffectiveness. It is axiomatic that counsel cannot be ineffective for failing

to raise a meritless issue. Fears, supra at 804. The record supports the

PCRA court’s determinations, and the PCRA court’s decision is free of legal

error. Thus, Appellant fails to satisfy the first prong of the ineffectiveness

test, and he is not entitled to relief on this issue.

       In his second issue, Appellant contends trial counsel was ineffective for

failing to challenge the legality of his sentence.                We need not address

Appellant’s specific arguments because we are required to vacate Appellant’s

Judgment of Sentence on grounds not raised by Appellant.4                            See

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4
  Appellant stated in his Brief “[w]e are, in effect, challenging counsel’s
ineffectiveness rather than the illegal sentence itself.” Appellant’s Brief at
22. Appellant did the opposite in the lower court: Appellant did not present
an ineffectiveness claim in his pro se PCRA Petition or counsel’s Amended
PCRA Petition, he instead chose to challenge only the legality of sentence.
(Footnote Continued Next Page)


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Commonwealth v. Watley, 81 A.3d 108, 118 (Pa. Super. 2013) (en banc)

(“Legality of sentence questions are not waivable and may be raised sua

sponte by this Court.”).

      The certified record indicates that in 2011, the trial court imposed a

mandatory minimum sentence pursuant to 42 Pa.C.S. § 9712.1 for

Appellant’s PWID conviction. This Court affirmed the Judgment of Sentence

on direct appeal.       While Appellant’s Petition for Allowance of Appeal was

pending in our Supreme Court, the United States Supreme Court decided

Alleyne v. United States, __ U.S. __, 133 S.Ct. 2151, 186 L.Ed.2d 314

(2013), holding that any fact increasing the mandatory minimum sentence

for a crime is considered an element of the crime to be submitted to the

fact-finder and found beyond a reasonable doubt.       In Commonwealth v.

Newman, 99 A.3d 86, 98 (Pa. Super. 2014) (en banc), appeal denied, 121

A.3d 496 (Pa. 2015), this Court held that pursuant to Alleyne, 42 Pa.C.S. §

9712.1 is no longer constitutional.

      Generally, an Alleyne claim does not apply retroactively to cases on

collateral review. See Commonwealth v. Washington, 142 A.3d 810, 820

(Pa. 2016). However, in Commonwealth v. Ruiz, 131 A.3d 54 (Pa. Super

                       _______________________
(Footnote Continued)

Thus, Appellant waived this ineffectiveness claim.    See 42 Pa.C.S. §
9544(b); see also Commonwealth v. Brown, 767 A.2d 576, 584-85 (Pa.
Super. 2001). Nevertheless, Appellant’s waiver does not preclude our
review because this Court may raise this issue sua sponte. See Watley,
supra at 118.



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2015), this Court recognized that an Alleyne claim constitutes a non-

waivable challenge to the legality of a sentence and may be raised for the

first time in a timely-filed PCRA petition if the petitioner’s judgment of

sentence was not final when Alleyne was decided. See Ruiz, supra at 60–

61.

       Here,    Appellant’s     Petition   for   Allowance   of   Appeal   with   the

Pennsylvania Supreme Court was not denied until August 23, 2013.

Alleyne was decided on June 17, 2013. Because Appellant’s Judgment of

Sentence was not final when Alleyne was decided and he timely filed this

PCRA Petition, Alleyne is applicable to Appellant’s case retroactively. See

Ruiz, supra at 60–61. Thus, Appellant is entitled to resentencing without

consideration of the mandatory minimum sentencing provision set forth in

42 Pa.C.S. § 9712.1.5

       Order vacated.      Judgment of sentence vacated.          Case remanded for

resentencing consistent with this memorandum. Jurisdiction relinquished.




____________________________________________


5
   In his third issue, Appellant contends that the PCRA court erred in
dismissing his PCRA Petition without conducting an evidentiary hearing.
Based on our discussion supra, we conclude that the PCRA court did not
abuse its discretion in dismissing Appellant’s first two ineffectiveness claims
without an evidentiary hearing because they presented no genuine issues of
material fact and lacked merit. See Miller, 102 A.3d at 992.



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/14/2017




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