J-S95011-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                  IN THE SUPERIOR COURT OF
                                                    PENNSYLVANIA
                         Appellee

                    v.

DEMETRIOUS WELLS

                         Appellant                 No. 316 EDA 2016


            Appeal from the PCRA Order Dated January 5, 2016
           In the Court of Common Pleas of Philadelphia County
             Criminal Division at No: CP-51-CR-0006559-2008


BEFORE: STABILE, MOULTON, and MUSMANNO, JJ.

MEMORANDUM BY STABILE, J.:                        FILED MARCH 28, 2017

      Appellant Demetrious Wells appeals from the January 5, 2016 order of

the Court of Common Pleas of Philadelphia County (“PCRA court”), which

denied without a hearing his request for collateral relief under the Post

Conviction Relief Act (the “Act”), 42 Pa.C.S.A. §§ 9541-46. Upon review, we

affirm.

      The facts and procedural history of this case are undisputed.      As

recounted by a prior panel of this Court:

             On August 31, 2006, in the early morning hours, the body
      of [L.H.], a U.S. Army veteran, was found lying in the street at
      31st and Nevada Streets [in Philadelphia]. [L.H.] had been shot
      numerous times.      An investigation began immediately and
      revealed that in the hours prior to the shooting, [L.H.] had
      visited his mother and asked for $10.00 to buy something to eat.
      She did not give him any money and told him that he should use
      his own funds. After speaking to his mother, [the victim] rode
      his bike back to his neighborhood where he went to [a] MAC
      machine and withdrew $20.00.           [L.H.] was killed soon
      thereafter. When police found him, the $20.00 was missing.
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           The investigation went cold and remained so for some
     time. In December of 2006, police received a letter outlining
     who and how the crime was committed. Although the letter was
     signed, police ascertained that the letter had been written by
     someone other than the person who allegedly signed it.
     Fingerprint analysis eventually led police to Mark Clark-Allen who
     admitted having prepared the letter.

            Mr. Clark-Allen testified that he and [Appellant] were
     roommates on the day of the murder and that he was in bed
     when he heard shots outside his residence. Approximately ten
     or fifteen minutes after he heard the gunshots, he heard the
     voices of [Appellant] and two other males coming from the first
     floor of the residence.       [Appellant] and the males were
     discussing the robbery of [L.H.] and Clark-Allen heard them
     state that they had just robbed [L.H.] of $20.00 and a gun he
     was licensed to carry while [L.H.] stood outside of a take-out
     Chinese restaurant waiting for food he had ordered.

           The next morning, [Appellant] told Clark-Allen that
     following the robbery, [L.H.] followed him and the other two
     males home. Then, when [L.H.] knocked on the door, and asked
     that the gun be returned because it did not belong to him,
     [Appellant] related that he walked [L.H.] around the corner and
     shot him after [L.H.] charged at him.

           [Appellant] was arrested on January 21, 2008, following a
     domestic dispute unrelated to the instant matter. Following
     [Appellant’s] arrest, the police ascertained that [Appellant] was
     wanted for murder and, consequently, [Appellant] was
     transported to the Homicide Division of the Philadelphia Police
     Department where, after waiving his rights, he was interviewed
     and gave a statement concerning the incident.             In that
     statement, [Appellant] claimed that he shot [L.H.] with [L.H.’s]
     gun after getting ‘the jump’ on [L.H.] and stripping him of his
     weapon.

          Ballistic examination of evidence gathered at the scene
     and evidence taken from [L.H.]’s residence demonstrated that
     [Appellant] shot and killed [L.H.] with [L.H.’s] gun.

            An autopsy of [L.H.]’s body revealed that he died as a
     result of having been shot five times including in his head at
     close range. Some of the wounds he suffered were to his hand
     and arm thereby demonstrating that he had raised them in a
     futile effort to block the bullets. In addition, it was discerned that
     he was shot while trying to flee. The manner of death was
     homicide.

Commonwealth v. Wells, No. 1659 EDA 2009, unpublished memorandum,

at 1-3 (Pa. Super. filed October 19, 2010) (citing Trial Court Opinion,


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2/1/10, at 1-3), appeal denied, 19 A.3d 1051 (Pa. 2011). A jury convicted

Appellant of first degree murder and possessing instruments of crime

(“PIC”).    The trial court sentenced Appellant to life imprisonment on the

charge of murder and a concurrent two-and-one-half to five-year term of

imprisonment for the PIC conviction. Following the trial court’s denial of his

post-sentence motion, Appellant timely appealed to this Court. On appeal,

we affirmed the judgment of sentence. On March 30, 2011, our Supreme

Court denied Appellant’s petition for allowance of appeal.

       On March 28, 2012, Appellant pro se filed the instant PCRA petition.

The PCRA court appointed counsel, who, on September 8, 2014, filed an

amended petition, raising ineffective assistance of counsel claims.            In

particular, Appellant argued that his appellate counsel was ineffective for

failing to raise the denial of his suppression motion on direct appeal.        On

January 5, 2016, following a Pa.R.Crim.P. 907 notice, the PCRA court denied

Appellant relief for want of merit. Appellant timely appealed to this Court.

       On appeal,1 Appellant raises a single issue for our review:

       Did the Honorable PCRA [c]ourt err when it dismissed
       [Appellant’s] PCRA petition without holding a hearing where
       [Appellant] properly pled and would have been able to prove
       that he was entitled to relief?


____________________________________________


1
  “In reviewing the denial of PCRA relief, we examine whether the PCRA
court’s determination ‘is supported by the record and free of legal error.’”
Commonwealth v. Fears, 86 A.3d 795, 803 (Pa. 2014) (quoting
Commonwealth v. Rainey, 928 A.2d 215, 223 (Pa. 2007)).



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Appellant’s Brief at 3.

       Appellant argues that his appellate counsel was ineffective for failing to

pursue the denial of suppression of his statements on direct appeal.

Appellant asserts that the police obtained the statements in violation of his

right against self-incrimination.

       A PCRA petitioner is entitled to relief if he pleads and proves that prior

counsel    rendered      ineffective   assistance   of   counsel.   42   Pa.C.S.A.

§ 9543(a)(2)(ii). “To prevail on an [ineffectiveness] claim, a PCRA petitioner

must plead and prove by a preponderance of the evidence that (1) the

underlying legal claim has arguable merit; (2) counsel had no reasonable

basis for acting or failing to act; and (3) the petitioner suffered resulting

prejudice.” Commonwealth v. Reyes-Rodriguez, 111 A.3d 775, 780 (Pa.

Super. 2015) (en banc).         “A petitioner must prove all three factors of the

“Pierce[2] test,” or the claim fails.” Id.

       Instantly, despite Appellant’s argument that his ineffectiveness claim

meets the arguable merit prong of the Pierce test, his brief is bereft of any

discussion or argument with respect to the reasonable basis and prejudice

prongs.    As we recently emphasized, “[a] petitioner must prove all three

factors of the Pierce test, or the [ineffectiveness] claim fails. In addition,

on appeal, a petitioner must adequately discuss all three factors of the

____________________________________________


2
    Commonwealth v. Pierce, 527 A.2d 973 (Pa. 1987).



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Pierce test, or the appellate court will reject the claim.” Reyes-Rodriguez,

111 A.3d at 780 (emphasis added) (citing Fears, 86 A.3d at 804)). Thus,

given Appellant’s failure to discuss the reasonable basis and prejudice

prongs on appeal, we must reject his ineffectiveness claim.

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/28/2017




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