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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA             :     IN THE SUPERIOR COURT OF
                                         :           PENNSYLVANIA
                  v.                     :
                                         :
TYON STOKES,                             :          No. 2655 EDA 2016
                                         :
                       Appellant         :


                Appeal from the PCRA Order, July 26, 2016,
           in the Court of Common Pleas of Philadelphia County
             Criminal Division at No. CP-51-CR-0006083-2009


BEFORE: LAZARUS, J., MOULTON, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                 FILED AUGUST 09, 2017

     Tyon Stokes appeals pro se from the July 26, 2016 order entered in

the Court of Common Pleas of Philadelphia County which dismissed, without

a hearing, his petition filed pursuant to the Post-Conviction Relief Act

(“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. We affirm.

     The trial court set forth the following factual history:

                  On    March   15,   2003,     [appellant]   and
           Phillip Sheridan got into an argument over drug
           territory in West Philadelphia. [Appellant] observed
           Sheridan selling drugs on Chester Avenue between
           55th and 56th Streets.       [Appellant] approached
           Sheridan, warning him that [appellant] would kill him
           if Sheridan made another sale on the block.
           Sheridan failed to comply with [appellant’s] request
           and made another sale.         [Appellant] again told
           Sheridan he would kill him. Sheridan then began to
           approach      [appellant],    taunting    [appellant].
           [Appellant] told Sheridan they don’t fight out there
           and showed Sheridan his firearm.              Sheridan
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              continued walking towards [appellant], who pulled
              out his gun and fired several shots at Sheridan,
              striking him in the head, arm, leg, and abdomen,
              killing him.

Trial court opinion, 11/14/16 at 2-3.

        The trial court set forth the following procedural history:

              [Appellant] was convicted [in a jury trial] [1] of first
              degree murder and possessing [an] instrument of []
              crime.[2] [Appellant] was subsequently sentenced to
              life imprisonment without parole for the homicide
              bill, with no further penalty for possessing an
              instrument of a crime.

                     A timely appeal was filed with the Superior
              Court, which affirmed the judgment of sentence on
              March 6, 2014. [Appellant’s] petition for allowance
              of appeal was denied by the Supreme Court on
              September 17, 2014. [Appellant] filed his [PCRA
              petition] on February 13, 2015. New counsel was
              appointed who filed a Finley[Footnote 1] letter and
              motion to withdraw as counsel on May 19, 2016.
              Despite [appellant] filing a pro se response to the
              Rule 907 dismissal notice, the petition was dismissed
              on July 26, 2016. [Appellant] filed a pro se notice
              of appeal on August 19, 2016, and a pro se
              Statement of Matters Complained of on Appeal on
              September 23, 2016.

                    [Footnote 1]       Commonwealth v.
                    Finley, [] 550 A.2d 213 ([Pa.Super.]
                    1988) [(en banc]).

Id. at 1-2.

1
  The record reflects that appellant committed his crimes on March 15, 2003,
but was not arrested until November 15, 2008. The trial court appointed
defense counsel and granted various continuances. Prior to trial and as a
result of a conflict of interest, new counsel was appointed. The case was
then relisted for a jury trial.
2
    18 Pa.C.S.A. §§ 2502(a) and 907(a), respectively.


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      Appellant raises the following issues for our review:

             I.    Did the PCRA court err in considering
                   appellant’s 4th Amendment violation claim
                   without merit, wherein appellant argued:
                   counsel was ineffective for stipulating to the
                   alleged authorization employed to seize
                   [appellant’s] outgoing mail and for failing to
                   motion for suppression of letters seized as a
                   result[?]

             II.   Was PCRA counsel ineffective in failing to
                   argue the merits of trial counsel’s ineffective
                   assistance for a) stipulating to the truth of the
                   means by which the appellant’s outgoing mail
                   was seized and b) failing to preserve the
                   violation of U.S. [Constitutional] Amendment
                   IV that resulted?

Appellant’s brief at vii (full capitalization omitted).

      We limit our review of a PCRA court’s decision to examining whether

the record supports the PCRA court’s findings of fact and whether its

conclusions of law are free from legal error.       Commonwealth v. Mason,

130 A.3d 601, 617 (Pa. 2015) (citations omitted). We view the PCRA court’s

findings and the evidence of record in a light most favorable to the prevailing

party. Id.

      To be entitled to PCRA relief, the defendant bears the burden of

establishing, by a preponderance of the evidence, that his conviction or

sentence resulted from one or more of the circumstances enumerated in

42 Pa.C.S.A. § 9543(a)(2), which include ineffectiveness of counsel that “so

undermined the truth-determining process that no reliable adjudication of



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guilt or innocence could have taken place.”      42 Pa.C.S.A. § 9543(a)(2)(i)

and (ii); see also Mason, 130 A.3d at 618 (citations omitted).

      Here, appellant’s claims assert ineffective assistance of trial counsel

and PCRA counsel.

            Counsel is presumed effective, and in order to
            overcome that presumption a PCRA petitioner must
            plead and prove that: (1) the legal claim underlying
            the ineffectiveness claim has arguable merit;
            (2) counsel’s action or        inaction   lacked any
            reasonable basis designed to effectuate petitioner’s
            interest; and (3) counsel’s action or inaction resulted
            in prejudice to petitioner. With regard to reasonable
            basis, the PCRA court does not question whether
            there were other more logical courses of action
            which counsel could have pursued; rather, [the
            court] must examine whether counsel’s decisions
            had any reasonable basis.          Where matters of
            strategy and tactics are concerned, [a] finding that a
            chosen strategy lacked a reasonable basis is not
            warranted unless it can be concluded that an
            alternative not chosen offered a potential for success
            substantially greater than the course actually
            pursued.    To demonstrate prejudice, a petitioner
            must show that there is a reasonable probability
            that, but for counsel’s actions or inactions, the result
            of the proceeding would have been different. Failure
            to establish any prong of the [] test will defeat an
            ineffectiveness claim.

Mason, 130 A.3d at 618 (internal quotation marks and citations omitted).

      Appellant complains that trial counsel was ineffective for failing to

move to suppress prison correspondence from appellant to an inmate

housed at another state correctional institution (“SCI”) and for entering into

a stipulation at trial with respect to the outgoing-mail procedure followed at

SCI Fayette and that SCI Fayette intercepted four outgoing incriminating


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letters written by appellant because seizure of the letters violated his

constitutional rights.   Appellant further complains that PCRA counsel was

ineffective for failing to raise trial counsel’s ineffectiveness in this regard.

Appellant’s claim lacks arguable merit.

      In Commonwealth v. Moore, 928 A.2d 1092 (Pa.Super. 2007), this

court addressed the issue of whether a prisoner has a constitutional right to

privacy in his non-privileged prison mail under the Fourth Amendment of the

United States Constitution and Article 1, Section 8 of the Pennsylvania

Constitution, recognizing that:

            [a]lthough prison walls do not separate inmates from
            their constitutional rights, because of the unique
            nature and requirements of the prison setting,
            imprisonment carries with it the circumscription or
            loss of many significant rights . . . to accommodate a
            myriad of institutional needs . . . chief among which
            is internal security. Prisoners have used the mail to
            transport contraband into and out of prison, to
            discuss and participate in ongoing criminal activity,
            and to coordinate escape plans. An unrestricted
            privacy interest in non-privileged mail would assist
            criminal objectives by facilitating the transmission of
            information. On the other hand, prisoners must
            appreciate the inherent loss of privacy in a prison,
            where security and surveillance obviate any
            legitimate expectation of privacy.

Id. at 1102 (quotation marks and internal citations omitted).         This court

then held that a “[prisoner] has no constitutional right to privacy in his

non-privileged mail.”     Id.     Therefore, appellant’s claim that he had a

constitutional right to privacy in his non-privileged prison correspondence

lacks arguable merit.


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     Order affirmed.3

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 8/9/2017




3
  Appellant filed a reply brief in this matter wherein he requested that this
court “consider the [Commonwealth’s] brief barred from consideration, as it
is untimely filed.” (Appellant’s reply to Commonwealth’s brief as appellee,
6/13/17 at 2.) This court, however, entered an order on June 7, 2017 that
granted the Commonwealth’s third application for an extension of time to file
its brief and accepted the Commonwealth’s brief filed May 31, 2017 as
timely filed. (Order of court, 6/7/17.) Therefore, we deny appellant’s
request.


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