J-S49030-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                         Appellee

                    v.

ANTHONY DEJESUS,

                         Appellant                    No. 353 MDA 2015


          Appeal from the PCRA Order entered January 27, 2015,
            in the Court of Common Pleas of Lebanon County,
           Criminal Division, at No(s): CP-38-CR-0001098-2012


BEFORE: BENDER, P.J.E., ALLEN, and OLSON, JJ.

MEMORANDUM BY ALLEN, J.:                            FILED AUGUST 18, 2015

      Anthony DeJesus (“Appellant”) appeals from the order denying his

petition for post-conviction relief filed pursuant to the Post Conviction Relief

Act (“PCRA”). 42 Pa.C.S.A. §§ 9541-46. We affirm.

      The PCRA court summarized the pertinent facts and procedural history

as follows:

             [Appellant] was charged with one count of Criminal
         Attempt/Criminal Homicide, two counts of Aggravated
         Assault, and one count of Persons Not to Possess, Use,
         Manufacture, Control, Sell, or Transfer Firearms.     On
         September 27, 2012, [Appellant] filed a pretrial motion,
         where he raised suppression of evidence and discovery
         issues. A pretrial hearing was held on October 31, 2012.
         On December 18, 2012, President Judge John C. Tylwalk
         filed an Opinion denying the Motion to Suppress Evidence
         and granting the Motion for Discovery.

            A jury trial was held on March 6, 2013. The jury found
         [Appellant] guilty of all charges except for the criminal
         attempt/criminal homicide charge.        [Appellant] was
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           sentenced to 6 to 20 years of incarceration on the
           aggravated assault convictions and 5 to 10 years of
           incarceration on the persons not to possess firearms
           conviction. The sentences were to run consecutive. An
           appeal was filed to the Superior Court of Pennsylvania.
           One issue was raised on appeal where [Appellant]
           challenged the denial of the Motion to Suppress Evidence.
           On January 13, 2014, the Superior Court of Pennsylvania
           affirmed     [Appellant’s]   judgment     of    sentence.
           [Commonwealth v. DeJesus, 96 A.3d 1081 (Pa. Super.
           2013) (unpublished memorandum).]

              On December 4, 2014, [Appellant] filed a timely [PCRA]
           Petition[.]   [The PCRA court appointed counsel] to
           represent [Appellant].     The Commonwealth filed a
           response to the PCRA Petition on December 15, 2014. On
           January 22, 2015, [PCRA counsel] filed an Amended PCRA
           Petition. A PCRA hearing was held on January 27, 2015,
           At the conclusion of the hearing, this Court denied the
           PCRA Petition.

PCRA Court Opinion, 3/13/15, at 1-2 (footnotes omitted). This timely appeal

followed. Both Appellant and the PCRA court have complied with Pa.R.A.P.

1925.

        Appellant raises the following issues:

           1. Whether trial counsel was ineffective for failing to call
           key witnesses on [Appellant’s] behalf, whose proposed
           testimony and whereabouts were known to trial counsel
           prior to and during trial, and whose eye-witness [sic]
           testimony    would    have     directly    refuted      the
           Commonwealth’s allegations?

           2. Whether trial counsel was ineffective for failing to
           consult with [Appellant] regarding videotape evidence,
           which was used at trial?

           3. Whether trial counsel was ineffective for failing to
           thoroughly discuss [Appellant’s] appellate rights?

           4. Whether [the] trial court erred when it sentenced
           [Appellant] to a mandatory firearm enhancement

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         minimum, where such element is illegal in light of the
         holding in [Alleyne v. United States, 133 S.Ct. 2151
         (2013)]?

Appellant’s Brief at 4.

      This Court’s standard of review regarding an order dismissing a

petition under the PCRA is whether the determination of the PCRA court is

supported    by    the    evidence   of   record   and   is    free   of   legal   error.

Commonwealth v. Halley, 870 A.2d 795, 799 n.2 (Pa. 2005). The PCRA

court’s findings will not be disturbed unless there is no support for the

findings in the certified record. Commonwealth v. Carr, 768 A.2d 1164,

1166 (Pa. Super. 2001).

      Because Appellant’s first three issues challenge the stewardship of

prior counsel, we apply the following principles. Counsel is presumed to be

effective,   and    Appellant    has      the   burden    of    proving      otherwise.

Commonwealth v. Pond, 846 A.2d 699, 708 (Pa. Super. 2004).

             In order for Appellant to prevail on a claim of ineffective
         assistance of counsel, he must show, by a preponderance of
         the evidence, ineffective assistance of counsel which, in the
         circumstances of the particular case, so undermined the
         truth-determining process that no reliable adjudication of
         guilt    or    innocence     could    have     taken     place.
         Commonwealth v. Kimball, 555 Pa. 299, 724 A.2d 326,
         333 (1999).        Appellant must demonstrate: (1) the
         underlying claim is of arguable merit; (2) that counsel had
         no reasonable strategic basis for his or her action or
         inaction; and (3) but for the errors and omissions of
         counsel, there is a reasonable probability that the outcome
         of the proceedings would have been different. Id. The
         petitioner bears the burden of proving all three prongs of
         the test. Commonwealth v. Meadows, 567 Pa. 344, 787
         A.2d 312, 319-20 (2001).

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Commonwealth v. Johnson, 868 A.2d 1278, 1281 (Pa. Super. 2005). In

assessing a claim of ineffectiveness, when it is clear that appellant has failed

to meet the prejudice prong, the court may dispose of the claim on that

basis alone, without a determination of whether the first two prongs have

been met. Commonwealth v. Travaglia, 661 A.2d 352, 357 (Pa. 1995).

Counsel cannot be deemed ineffective for failing to pursue a meritless claim.

Commonwealth v. Loner, 836 A.2d 125, 132 (Pa. Super. 2003) (en banc),

appeal denied, 852 A.2d 311 (Pa. 2004).

      Appellant first claims that trial counsel was ineffective for failing to call

several eyewitnesses to testify in his defense. See Appellant’s Brief at 9-11.

In order to establish that trial counsel was ineffective for failing to

investigate   and/or   call   a   witness   at   trial,   a   PCRA   petitioner   must

demonstrate:

        (1) the witness existed; (2) the witness was available; (3)
        trial counsel was informed of the existence of the witness or
        should have known of the witness’s existence; (4) the
        witness was prepared to cooperate and would have testified
        on appellant’s behalf; and (5) the absence of the testimony
        prejudiced appellant.


Commonwealth v. Hall, 867 A.2d 619, 629 (Pa. Super. 2005) (citation

omitted).

      Here, the PCRA court summarized the testimony from the evidentiary

hearing as follows:




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            At the PCRA hearing, [Appellant] testified that there
         were three witnesses who would have testified at trial that
         they [along with Appellant] were present at the incident,
         there was already an argument when they arrived, and
         they did not have a gun on them. [Trial counsel] testified
         that to his knowledge, [Appellant] never gave him the
         name of the three witnesses. [Trial counsel] did not have
         the names of these individuals in his file. [Trial counsel]
         testified that [Appellant’s] purpose of having them called
         to testify that a fight was already [occurring] at the scene
         and they did not have a gun on them would contradict
         [Appellant’s] defense that he was not present at the scene
         at the time of the incident.

PCRA Court Opinion, 3/13/15, at 6 (footnote omitted).

      The PCRA court then explained its rationale for denying Appellant post-

conviction relief:

            This claim lacks arguable merit. On October 16, 2012,
         Appellant filed a Notice of Alibi Defense. The notice states
         that Appellant was at 11 North Ninth Street, Apt. 3,
         Lebanon, PA on the date and time of the incident. The
         notice also sets forth two individuals, who both have the
         same address, who may be called to support the alibi
         claim. [Appellant’s] grandmother testified at the jury trial
         that Appellant was at home that night. [Appellant’s] aunt
         testified at the jury trial that [Appellant] was at home that
         night. [Appellant] himself testified at the jury trial that he
         was at home that night.

            Appellant, his grandmother, and his aunt all testified
         that Appellant was at home the night of the incident. Now
         Appellant is claiming that there are three witnesses who
         would have testified that he actually was at the scene of
         the crime, but a fight was already [occurring] upon their
         arrival, and they did not have a gun on them. These two
         theories contradict one another. Appellant has always
         maintained that he was not at the scene of the crime that
         night. Now, Appellant is claiming he actually was there.
         [Appellant] even states in his pro se PCRA Petition, “When
         my witnesses and I got to the scene, there were already
         two parties their [sic] having words.” The only value

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         obtained from Appellant’s instant PCRA claim is it suggests
         the trial witnesses, including [Appellant] himself,
         committed perjury at the jury trial. Therefore, we cannot
         find [trial counsel] ineffective for failing to call these
         individuals at trial since they would have contradicted
         [Appellant’s] defense that he was at home at the time of
         the incident.

PCRA Court Opinion, 3/13/15, at 6-7 (citations omitted).

      Our review of the record supports the PCRA court’s conclusions.

Although the PCRA court did not make a specific credibility determination as

to whether trial counsel knew of the witnesses, the court clearly found that

the absence of their testimony did not prejudice Appellant because the

testimony would have contradicted Appellant’s alibi defense presented at

trial. Thus, because Appellant has failed to establish all of the Hall factors,

see supra, his first ineffectiveness claim fails.

      In his second issue, Appellant asserts that trial counsel was ineffective

for failing to consult with him regarding videotape surveillance evidence from

nearby security cameras that the Commonwealth provided in discovery.

According to Appellant, “[he] continually requested Trial Counsel to allow

[him] to review the video that was recorded from the alleged crime scene.

In an effort to assist in his own defense, [Appellant] wished to review the

video so as to discuss any and all inconsistencies with Trial Counsel.”

Appellant’s Brief at 12.

      The PCRA court first summarized the pertinent testimony from the

PCRA hearing:




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             At the PCRA hearing, [Appellant] asserted that he told
         [trial counsel] of a videotape, but [trial counsel] told him
         he could not play the video, and they would still have to
         prove who was on the video. [Appellant] claimed that the
         video was played during trial, and this was the first time
         he saw the video.         However, Appellant asked [trial
         counsel] to see the video prior to trial. [Trial counsel] did
         not recollect if [Appellant] ever requested the video.

PCRA Court Opinion, 3/13/15, at 7.

      The   PCRA   court   then   explained   its   reasons   for   rejecting   this

ineffectiveness claim:

             Once again, we cannot find [trial counsel] ineffective.
         At trial, a video was played from the bar establishment of
         the night of the incident, and Officer Keith Ulrich testified
         that Appellant was displayed on the video. Despite the
         video and the police officer’s testimony, [Appellant] still
         maintained that he was at home with his grandmother and
         aunt the night of the incident. Therefore, it was for the
         jury to weigh the probative value of the video and to
         evaluate the credibility of the witnesses. The finder of fact
         is free to believe all, part, or none of the evidence. The
         fact finder makes credibility determinations. It was up to
         the jury to decide if [Appellant] was at home the night of
         the incident. The jury was free to believe the video
         evidence, and it was free to reject the testimony that
         Appellant was home that night.          The fact that [trial
         counsel] may or may not have consulted with [Appellant]
         about this videotape prior to trial does not mean that the
         outcome of the trial would have been different. Rather, it
         only suggests that had Appellant seen a video that
         depicted himself not at home that night, then he would
         have been more likely to change his account of his
         whereabouts that night for trial. This is not grounds to
         find trial counsel ineffective.

PCRA Court Opinion, 3/13/15, at 7-8 (citations omitted).




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      Once again, our review of the record supports the PCRA court’s

conclusion that Appellant failed to establish prejudice.         Travaglia, supra.

Indeed, when he testified at trial, Appellant challenged Officer Ulrich’s

testimony that Appellant was the person depicted in the video based on the

officer’s description of certain body tattoos. See N.T., 3/16/13, at 119-20.

As stated by the PCRA court, the fact that Appellant may now believe that an

alibi was not his strongest defense, does not render trial counsel’s assistance

ineffective. See Commonwealth v. Fisher, 813 A.2d 761, 767 (Pa. 2002)

(reiterating “[s]peculation by hindsight that a different strategy might

possibly    have   been   successful    is    not   the   test   which   establishes

ineffectiveness of counsel”). Thus, Appellant’s second issue fails.

      In his third and final claim of ineffectiveness, Appellant contends that

trial counsel was ineffective “for failing to thoroughly discuss his appellate

rights.”   Appellant’s Brief at 15.    According to Appellant, trial counsel was

ineffective because he failed to communicate with Appellant, and thus failed

to raise “many claims he wished . . . to pursue on his appeal.” Id. at 18.

      The PCRA court first discussed the pertinent testimony presented at

the PCRA hearing:

              At the PCRA hearing, [Appellant] testified that trial
           counsel stated that he was only appealing the case
           because he was obligated and Appellant was making him
           do it. [Appellant] indicated that [trial counsel] told him
           the appeal was basically worthless, and [trial counsel] did
           not discuss what issues [Appellant] wanted to raise on
           appeal. [Trial counsel] testified that he did file an appeal
           and concise statement [of errors complained of on appeal]
           on behalf of [Appellant], but [trial counsel] suffered an

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         injury, and [new appellate counsel] was appointed. [Trial
         counsel] testified that had he remained on appeal, he
         would have filed a no-merit letter. [Trial counsel] testified
         that he did raise the pretrial issue on appeal.

PCRA Court Opinion, 3/13/15, at 8.

      The PCRA court then explained why Appellant’s claim was without

merit:

            Once again, we find that [trial counsel] was not
         ineffective. [Trial counsel] perfected an appeal to the
         Superior Court where he raised the pretrial ruling.
         However, he could not continue representation due to an
         injury. Thereafter, [new appellate counsel] took over. The
         Superior Court affirmed the judgment of sentence. This
         does not rise to the level of ineffectiveness.

Id.

      We agree.      A review of the record reveals that “due to the

unavailability of [trial counsel],” the trial court appointed new appellate

counsel by order entered May 7, 2013.       We note that Appellant does not

challenge the effectiveness of new appellate counsel, who completed

Appellant’s appeal process.

      In his final issue, Appellant asserts that the trial court imposed an

illegal sentence upon him based on the United States Supreme Court’s

recent ruling in Alleyne v. United States, 133 S.Ct. 2151 (2013).        In

Alleyne, the high court held that “[m]andatory minimum sentences increase

the penalty for a crime . . . . [so] any fact that increases the mandatory

minimum is an ‘element’ [of the crime] that must be submitted to the jury.”

Alleyne, 133 S.Ct. at 2155.


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       According to Appellant:

              In light of the holding in Alleyne, supra, [Appellant]
          avers that his sentence is illegal as no factfinder
          determined beyond a reasonable doubt whether [he]
          utilized a firearm in the course of the alleged assault.
          Since the [alleged] [sic] use of a firearm in the course of
          the alleged assault was deemed a “sentencing factor”
          rather than an “element” of the crime, the imposition of
          the five (5)-year mandatory minimum sentence for
          Aggravated Assault under 18 [Pa.C.S.A.] § 2702(a)(4)
          violated [Appellant’s Due Process rights.

             Since [Appellant’s] right to due process has been
          violated, [Appellant’s] rights should be reinstated.

Appellant’s Brief at 20.

       Initially, because an issue involving the alleged illegality of a sentence

can be raised at any time, we reject the Commonwealth’s assertion that

Appellant waived this issue by failing to raise it in his Pa.R.A.P. 1925(b)

statement.      See Commonwealth’s Brief at 7.         However, our review of

Appellant’s claim is impeded because a transcript of Appellant’s sentencing

hearing is not in the certified record.        See generally Commonwealth v.

Preston, 904 A.2d 1 (Pa. Super. 2006) (en banc).1

       Nevertheless, a review of the record before us contradicts Appellant’s

Alleyne claim.        In Appellant’s sentencing memorandum, trial counsel


____________________________________________


1
   Although not obligated to do so, we communicated with the county
prothonotary and were informed that the sentencing hearing was never
transcribed.




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stated:    “[T]he offense gravity score to be assigned to Count Two

[(aggravated assault)] is 10.       With a prior record score of four, the

sentencing guidelines applicable to Count Two are 66 to 78 months.”

Sentencing Memorandum, 3/28/13, at 4. In a footnote, trial counsel further

stated:   “As a result of [Appellant’s] prior record score, the sentencing

guidelines exceed the mandatory minimum otherwise applicable under 42

[Pa.C.S.A. §] 9712.” Id.

      The trial court imposed a minimum sentence of 72 months upon

Appellant for his aggravated assault conviction.     Thus, our review of the

record supports the Commonwealth’s averment that Appellant “was not

sentenced to a ‘mandatory sentence’”, but “was sentenced firmly within the

standard range of the sentencing guidelines.” Commonwealth’s Brief at 7.

Finally, although it appears the trial court included a weapons enhancement

to the applicable sentencing guidelines, this fact does not invoke the

application of Alleyne.     See Commonwealth v. Buterbaugh, 91 A.3d

1247, 1270 n.10 (Pa. Super. 2014) (en banc).

      For the foregoing reasons, the PCRA court correctly concluded that

Appellant’s three claims of trial counsel ineffectiveness did not entitle him to

post-conviction relief.   Additionally, because our review of the record does

not support Appellant’s illegal sentence claim, we affirm the PCRA court’s

denying relief.

      Order affirmed.

      Judge Bender joins the memorandum.

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     Judge Olson concurs in the result.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/18/2015




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