J-S69001-17



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA


                   v.

JULIAN BRYANT

                        Appellant                   No. 995 WDA 2016


                 Appeal from the PCRA Order April 25, 2016
             In the Court of Common Pleas of Allegheny County
            Criminal Division at No(s): CP-02-CR-0010073-2011


BEFORE: BOWES, RANSOM, JJ. and STEVENS, P.J.E.*

MEMORANDUM BY BOWES, J.:                      FILED NOVEMBER 16, 2017

     Julian Bryant appeals pro se from the April 25, 2016 order denying

him PCRA relief. We affirm.

     Appellant was convicted by a jury of attempted murder and two counts

of aggravated assault based upon the following events:

           On the afternoon of June 18, 2011, the defendant, Julian
     Bryant, fired six shots, wounding Kareem "Moose" Howard. The
     victim, Mr. Howard, sustained three gunshot wounds to his
     buttocks, one to his arm, one to his hip, and one to his ear. The
     incident occurred at approximately 1:20 p.m. near the
     intersection of Frankstown Avenue and North Homewood in the
     City of Pittsburgh, Allegheny County, Pennsylvania.

           [Appellant] had known Mr. Howard for approximately five
     years. The two were good friends. Mr. Howard referred to
     [Appellant] as "Juls" or "bro.;" Mr. Howard was involved with
     [Appellant’s] sister, Lateesha Bryant, and is the father of two of
     her children.


* Former Justice specially assigned to the Superior Court.
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            On the day of the incident, Mr. Howard testified that
      [Appellant] crossed the street to approach him and appeared
      "raged." [Appellant] then opened fire on him at a distance of
      "not quite" 20 feet after Mr. Howard had pulled a gun on Ms.
      Bryant during a dispute over the custody of their children.

            Witness John Turner, the owner of a barbershop near the
      incident, heard a number of shots fired and then saw Mr.
      Howard, whom he knew, laying on the ground. Mr. Howard was
      shot four (4) times, falling to the ground, and in attempting to
      escape, was shot another two times while crawling away. Fired
      at point blank range, one shot came close to Mr. Howard's head,
      breaking an earring that he was wearing and damaging the ear.
      While crawling away, Mr. Howard picked up a Smith and Wesson
      9mm semi-automatic pistol and returned fire in the direction of
      the fleeing [Appellant]. As a result of the incident, Mr. Howard
      was hospitalized for about eleven days, spending the first four in
      a coma. Among other injuries, he sustained a fractured pelvis,
      severe damage to the nerves of his right leg, and had to undergo
      three surgeries.

            While en route to the scene of the incident, Detective
      Robert Shaw testified that at approximately 2:24 p.m. he
      received a report that a man had been hospitalized with a
      gunshot wound to the leg. The man in the hospital was
      [Appellant]; the 9mm bullet in his leg matched the Smith and
      Wesson pistol allegedly used by Mr. Howard upon returning fire.

Trial Court Opinion, 12/2/13, at 2-3 (footnote and record citations omitted).

      On October 29, 2012, Appellant was sentenced to twenty to forty

years imprisonment, and, on appeal, we affirmed.         Commonwealth v.

Bryant, 106 A.3d 159 (Pa.Super. 2014) (unpublished memorandum).

Appellant filed a timely PCRA petition, counsel was appointed, and counsel

moved to withdraw pursuant to Commonwealth v. Turner, 544 A.2d 927

(Pa. 1988); Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988).

The PCRA court issued notice of its intent to dismiss the PCRA petition

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without a hearing, allowed counsel to withdraw, and denied PCRA relief. This

appeal followed. Appellant raises two averments in one paragraph: “Did the

courts Err when they invoked the mandatory minimum? Was the petitioner

sentenced illegally due to the Mandatory Minimum?         Should the Petitioner

have been sentenced with a deadly weapon enhancement, when the

petitioner was found not guilty of possessing or using the deadly weapon he

was charged with?” Appellant’s brief at 2.

      Initially, we observe, “Our standard of review of a PCRA court's

dismissal of a PCRA petition is limited to examining whether the PCRA

court's determination is supported by the record evidence and free of legal

error.”   Commonwealth v. Whitehawk, 146 A.3d 266, 269 (Pa.Super.

2016).    Appellant’s statement of questions involved raises two positions:

first, that he was illegally sentenced to a mandatory minimum sentence;

and, second, the trial court should not have used the deadly weapon matrix

of the sentencing guidelines since Appellant was found not guilty of

possession of the gun that he used to shoot the victim.

      Appellant’s first allegation is premised on the United States Supreme

Court’s decision in Alleyne v. United States, 133 S.Ct. 2151 (2013). In

Alleyne, the Court held that, under the Sixth Amendment’s right to a jury

trial, facts that invoke the application of a mandatory minimum sentence

must be submitted to a jury and found beyond a reasonable doubt.

However, Alleyne is not retroactive and cannot be applied in this PCRA

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setting. Commonwealth v. Washington, 142 A.3d 810, 811 (Pa. 2016)

(holding that Alleyne does not apply retroactively “to attacks upon

mandatory     minimum     sentences     advanced    on     collateral   review”).

Additionally, as the PCRA court delineated clearly in its opinion and as the

record confirmed, while the Commonwealth invoked a mandatory minimum

sentence, such a sentence was not actually imposed. The sentencing court

imposed a standard range guideline sentence under the deadly weapon

enhancement matrix of the sentencing guidelines.         Thus, Alleyne was not

violated herein.    Commonwealth v. Ziegler, 112 A.3d 656 (Pa.Super.

2015) (where mandatory minimum sentencing statute was invoked but

defendant was sentenced to a higher term of imprisonment under guidelines

involving use of deadly weapon, the sentence was not based upon the

unconstitutional mandatory minimum sentencing statute and the sentence

was not illegal).

      Appellant’s second position is that, given that he was acquitted of

possession of a firearm, the deadly weapon matrix of the guidelines should

not have been used. This issue is not preserved for appeal as it was never

raised in the PCRA petition or at any point in the PCRA proceedings.

Pa.R.A.P. 302(a) (“Issues not raised in the lower court are waived and

cannot be raised for the first time on appeal.”).

      Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/16/2017




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