J-S51034-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

MICHAEL P. KING,

                            Appellant                 No. 883 EDA 2015


                   Appeal from the PCRA Order March 13, 2015
              in the Court of Common Pleas of Philadelphia County
               Criminal Division at Nos.: CP-51-CR-0014200-2009
                             CP-51-CR-0014201-2009


BEFORE: GANTMAN, P.J., LAZARUS, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                               Filed October 5, 2016

        Appellant, Michael P. King, appeals pro se from the dismissal of his

first petition filed pursuant to the Post Conviction Relief Act (PCRA), 42

Pa.C.S.A. §§ 9541-9546.1 Specifically, he claims that the trial court erred in

denying his petition because the court advocated for the prosecuting

____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
   Appellant purports to appeal from the judgment of sentence, the trial
court’s denial of his post-sentence motion, this Court’s March 6, 2012
affirmation of the judgment of sentence, and from the August 8, 2012 order
of the Pennsylvania Supreme Court denying his petition for allowance of
appeal. (See Appellant’s Brief, at 2). However, Appellant’s issues concern
the PCRA court’s dismissal of his petition without a hearing and allege an
illegal sentence, and are cognizable under the PCRA. (See id. at 3); 42
Pa.C.S.A. § 9542. Therefore, we consider Appellant’s appeal to be from the
PCRA court’s March 13, 2015 order denying his PCRA petition.
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attorney and because it failed to cite authority explaining its reasons for

denying relief.    Appellant also challenges the legality of his sentence.   We

affirm.

       We take the factual and procedural history in this matter from the

PCRA court’s December 21, 2015 opinion and our review of the certified

record. On May 4, 2010, a jury convicted Appellant of aggravated assault,

criminal conspiracy, possession with the intent to deliver a controlled

substance, and fleeing or attempting to elude police. 2 On July 13, 2010, the

trial court sentenced Appellant to an aggregate sentence of not less than

twenty-three and one-half, nor more than forty-seven years of incarceration.

(See N.T. Sentencing, 7/13/10, at 25).

       Appellant timely appealed, and this Court affirmed the judgment of

sentence on March 6, 2012.            (See Commonwealth v. King, 3287 EDA

2010, unpublished memorandum (Pa. Super. filed March 6, 2012)).              Our

Supreme Court denied Appellant’s petition for allowance of appeal on August

8, 2012. (See Commonwealth v. King, 48 A.3d 442 (Pa. 2012)).




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2
  See 18 Pa.C.S.A. §§ 2702(a)(1), 903, 35 P.S. 780-113(a)(30), and 75
Pa.C.S.A. § 3733(a), respectively. Appellant’s conviction stemmed from his
July 24, 2009, shooting of Gregory Smith. After the shooting, Appellant and
his co-defendant, Jamar Stamps, led the police on a chase through the
streets of Philadelphia, upon conclusion of which police discovered nearly
two pounds of marijuana in the bed of the truck that Appellant was driving.
(See PCRA Court Opinion, at 2-10).



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       On September 4, 2012, Appellant timely filed his first PCRA petition.

The PCRA court appointed counsel who filed an amended petition on

February 3, 2014. On July 7, 2014, Appellant filed a request to proceed pro

se, which the trial court granted on September 26, 2014, following a

Grazier3 hearing.       Appellant then filed supplemental claims to his PCRA

petition on October 23, 2014. The Commonwealth filed a motion to dismiss

Appellant’s petition on January 29, 2015. Appellant filed objections to the

Commonwealth’s motion on February 5, 2015.

       On February 13, 2015, the PCRA court issued notice of its intent to

dismiss Appellant’s petition pursuant to Rule of Criminal Procedure 907(1).

Appellant did not respond, and the trial court dismissed his petition as

meritless on March 13, 2015.           (See Order, 3/13/15).   This timely appeal

followed.4

       Appellant raises three issues for our review:

       1. [Whether t]he PCRA court’s notice to dismiss Appellant’s
       PCRA petition without a hearing was based on the adoption of
       the Commonwealth’s [m]otion to [d]ismiss in advocacy for the
       prosecuting attorney[;] thus[], denying Appellant his rights to
       [p]rocedural and substant[ive] [d]ue [p]rocess of [l]aw under
       the Fifth and Fourteenth Amendments to the United States
____________________________________________


3
    Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).
4
  Appellant filed a timely notice of appeal on March 23, 2015. Pursuant to
the PCRA court’s order, he filed a timely concise statement of errors
complained of on appeal on April 3, 2015. See Pa.R.A.P. 1925(b). The
PCRA court entered its opinion on December 21, 2015. See Pa.R.A.P.
1925(a).



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      Constitution and [A]rticle 1, [S]ection 9, of the Pennsylvania
      Constitution[?]

      2. [Whether t]he PCRA [c]ourt failed to cite controlling legal
      authority and failed to provide a full explanation of the reasons
      for denying PCRA relief and/or adopting the district attorney’s
      [m]otion to [d]ismiss[?]

      3. [Whether t]he trial court err[ed] in [im]posing an illegal
      sentence[?]

(Appellant’s Brief, at 3) (some argument omitted).

            As a prefatory matter, although this Court is willing to
      construe liberally materials filed by a pro se litigant, pro se
      status generally confers no special benefit upon an appellant.
      Accordingly, a pro se litigant must comply with the procedural
      rules set forth in the Pennsylvania Rules of the Court. This Court
      may quash or dismiss an appeal if an appellant fails to conform
      with the requirements set forth in the Pennsylvania Rules of
      Appellate Procedure. Pa.R.A.P. 2101.

Commonwealth v. Lyons, 833 A.2d 245, 251-52 (Pa. Super. 2003),

appeal denied, 879 A.2d 782 (Pa. 2005) (case citations omitted).      “In the

instant case, the defects in Appellant’s brief are substantial. . . .

Nonetheless, in the interest of justice we address the arguments that can

reasonably be discerned from this defective brief.” Id. at 252.

      Appellant’s first two issues address his claim that the court erred in

denying his PCRA petition. (See Appellant’s Brief, at 4-8). Our standard of

review concerning denial of a PCRA petition is well-settled.

             This Court examines PCRA appeals in the light most
      favorable to the prevailing party at the PCRA level. Our review
      is limited to the findings of the PCRA court and the evidence of
      record[.] Additionally, [w]e grant great deference to the factual
      findings of the PCRA court and will not disturb those findings
      unless they have no support in the record. In this respect, we
      will not disturb a PCRA court’s ruling if it is supported by
      evidence of record and is free of legal error. However, we afford

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        no deference to its legal conclusions. [W]here the petitioner
        raises questions of law, our standard of review is de novo and
        our scope of review is plenary.

Commonwealth v. Henkel, 90 A.3d 16, 20 (Pa. Super. 2014), appeal

denied, 101 A.3d 785 (Pa. 2014) (citations and quotation marks omitted).

        In his first issue, Appellant claims that the trial court erred by

“adopt[ing] the Commonwealth’s [m]otion to [d]ismiss in advocacy for the

district attorney[.]”    (Appellant’s Brief, at 6).   He argues that “[t]he

supporting case-law used by the district attorney does not support the

Commonwealth’s counter argument and should not have been adopted by

the court as grounds to deem Appellant[’s] [PCRA] petition as meritless.”

(Id. at 4). We disagree.

        Appellant challenges the Commonwealth’s citation of cases refuting his

argument that his trial counsel was ineffective for not objecting to the

court’s instruction to the jury wherein it referred to Mr. Smith as the victim.

(See id. at 4 (citing Commonwealth’s motion to dismiss PCRA petition,

1/29/15, at 9)).     However, Appellant has failed to demonstrate that the

PCRA court ever relied on these cases.         Instead, he offers conclusory

allegations, without any supporting citation to the record, that the PCRA

court erred by adopting the Commonwealth’s motion to dismiss. (See id. at

5-6).    Thus, he has failed to allege that the PCRA court’s ruling was not

supported by the record or contained legal error. See Henkel, supra at 20.

        Moreover, to the extent that Appellant is arguing that the PCRA court

erred in denying his petition because his counsel was ineffective for not


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objecting to the court’s instruction, (see generally Appellant’s Brief at 4-6),

his argument would not merit relief.

      To obtain relief under the PCRA based upon a claim that counsel was

ineffective, a petitioner must establish by a preponderance of evidence that

counsel’s ineffectiveness “so undermined the truth-determining process that

no reliable adjudication of guilt or innocence could have taken place.”      42

Pa.C.S.A. § 9543(a)(2)(ii).

      In Pennsylvania, counsel is presumed effective, and a defendant
      bears the burden of proving otherwise. In order to be entitled to
      relief on a claim of ineffective assistance of counsel, the PCRA
      petitioner must plead and prove by a preponderance of the
      evidence that (1) the underlying claim has arguable merit; (2)
      counsel whose effectiveness is at issue did not have a
      reasonable basis for his action or inaction; and (3) the PCRA
      petitioner suffered prejudice as a result of counsel’s action or
      inaction. . . .

Commonwealth v. Steele, 961 A.2d 786, 796 (Pa. 2008) (citations

omitted).

      Here, Appellant has failed to plead and prove any of the three prongs

of ineffectiveness. Upon review, viewing the evidence of record in the light

most favorable to the Commonwealth as prevailing party, we agree with the

PCRA court that Appellant has not met his burden of establishing ineffective

assistance of counsel, and we conclude that he is not entitled to relief. See

Henkle, supra at 20; Steele, supra at 796.           Appellant’s first issue is

meritless.

      In his second issue, Appellant argues that the PCRA court erred by

failing to cite legal authority or provide a full explanation of its reasons for

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denying PCRA relief.      (See Appellant’s Brief, at 7-8).      Specifically, he

contends that the court advocated for the Commonwealth by adopting its

motion to dismiss, and it did not comply with Pennsylvania Rule of Appellate

Procedure 2119. (See id.). We disagree.

      Pennsylvania Rule of Criminal Procedure 907 provides that, with

respect to petitions for post-conviction collateral relief,

      (1) the judge shall promptly review the petition, any answer by
      the attorney for the Commonwealth, and other matters of record
      relating to the defendant’s claim(s). If the judge is satisfied
      from this review that there are no genuine issues concerning any
      material fact and that the defendant is not entitled to post-
      conviction collateral relief, and no purpose would be served by
      any further proceedings, the judge shall give notice to the
      parties of the intention to dismiss the petition and shall state in
      the notice the reasons for the dismissal. The defendant may
      respond to the proposed dismissal within 20 days of the date of
      the notice.     The judge thereafter shall order the petition
      dismissed, grant leave to file an amended petition, or direct that
      the proceedings continue.

Pa.R.Crim.P. 907(1).

      In this case, the PCRA court properly issued notice of its intent to

dismiss Appellant’s petition as meritless. (See Notice, 2/13/15). Appellant

failed to respond to the proposed dismissal, and the court thereafter ordered

the petition dismissed.     (See Order, 3/13/15).       Thus, we conclude that

Appellant has not met his burden to demonstrate that the court’s decision

was not supported by the record or contained legal error.         See Henkel,

supra at 20. Moreover, we note that the requirements of Rule 2119—that

briefs should contain argument followed by citation to and discussion of



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pertinent authorities, and include references to the place in the record where

matters referred to appear—apply to the content of briefs submitted by the

parties, not judicial decisions. See Pa.R.A.P. 2119. Appellant’s second issue

is meritless.

       Finally, in his third issue, Appellant challenges the legality of his

sentence.5 (See Appellant’s Brief, at 9). Appellant’s argument is unfocused

and meandering; however, it appears that he claims that he was sentenced

to an unconstitutional mandatory minimum sentence.           (See id.).   We

disagree.

       Appellant’s claim is belied by the record. After a hearing on July 13,

2010, the trial court sentenced Appellant to a period of incarceration of not

less than ten nor more than twenty years for aggravated assault; not less

than ten nor more than twenty years on criminal conspiracy; not less than

two and one-half nor more than five years on PWID; and not less than one

nor more than two years on eluding arrest. (See N.T. Sentencing, at 24-

25).    The court imposed its sentence on all counts consecutive to one

another. (See id.). Appellant was not sentenced to a mandatory minimum

on any count. (See id.). Thus, Appellant’s third claim is frivolous.

       Order affirmed.


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5
  Appellant failed to include a legality of sentence claim in his Rule 1925(b)
statement of errors. However, legality of sentence claims are non-waivable.
See Commonwealth v. Jones, 932 A.2d 179 (Pa. Super. 2007).



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/5/2016




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