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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

CARLOS QUENTO MATHIS

                            Appellant                 No. 1381 WDA 2015


                  Appeal from the PCRA Order August 6, 2015
                  In the Court of Common Pleas of Erie County
              Criminal Division at No(s): CP-25-CR-0002715-2008


BEFORE: SHOGAN, J., OTT, J., and FITZGERALD, J.*

MEMORANDUM BY OTT, J.:                              FILED AUGUST 31, 2016

        Carlos Quento Mathis appeals from the order entered August 6, 2015,

in the Erie County Court of Common Pleas, dismissing his first petition for

collateral relief filed pursuant to the Post Conviction Relief Act (“PCRA”), 42

Pa.C.S. §§ 9541-9546. Mathis seeks relief from an aggregate term of 15 to

40 years’ imprisonment, imposed May 14, 2009, after a jury found him

guilty of, inter alia, robbery, kidnapping, and conspiracy.1    On appeal, he

challenges the ineffective assistance of trial counsel and the legality of his

sentence. For the reasons below, we affirm.


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*
    Former Justice specially assigned to the Superior Court.
1
    18 Pa.C.S. §§ 3701(a)(1)(ii), 2901(a)(2), and 903, respectively.
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       The facts and procedural history underlying this appeal are detailed in

the PCRA court’s July 14, 2015, opinion. See 7/14/2015, at 4-5. For our

purposes, we note Mathis and a group of individuals robbed the Jockey

Health Club during the early morning hours of August 3, 2008.                The co-

conspirators threatened the female employees at gunpoint and held them in

a second floor room.         The actors, inside the building, communicated via

speakerphone with the getaway driver, co-conspirator Kaytlin Kramer, who

was an employee at the club.             Kramer later provided the details of the

robbery to the police, and implicated Mathis.

       Mathis was subsequently convicted of robbery, conspiracy, kidnapping,

burglary, terroristic threats, theft, and receiving stolen property.2 As noted

above, he was sentenced to an aggregate term of 15 to 40 years’

imprisonment.       His 15-year minimum sentence was comprised of three

mandatory minimum five-year sentences imposed on the charges of

robbery, conspiracy, and kidnapping, for his use of a firearm during the

commission of those offenses. See 42 Pa.C.S. § 9712.

       A panel of this Court affirmed Mathis’s judgment of sentence on direct

appeal in May of 2011, and the Pennsylvania Supreme Court denied his

petition   for   allowance      of   appeal    on   December   27,   2012.      See


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2
  18 Pa.C.S. §§ 3701(a)(1)(ii), 903, 2901(a)(2), 3502, 2706, 3921, and
3925, respectively.




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Commonwealth v. Mathis, 30 A.3d 530 (Pa. Super. 2011), appeal denied,

60 A.3d 535 (Pa. 2012).            He subsequently filed this timely, first PCRA

petition on December 27, 2013. After the PCRA court mistakenly considered

the petition to be Mathis’s third, and dismissed it without appointing counsel,

a panel of this Court vacated the order and remanded the case for the

appointment of counsel.3 See Commonwealth v. Mathis, 120 A.3d 1057

(Pa. Super. 2015) (unpublished memorandum). Counsel was subsequently

appointed and filed a supplemental petition on June 30, 2015. On July 15,

2015, the PCRA court issued notice of its intent to dismiss the petition

without first conducting an evidentiary hearing pursuant to Pa.R.Crim.P.

907. Mathis did not respond to the court’s Rule 907 notice, and, on August

6, 2015, the PCRA court dismissed the petition.              This timely appeal

followed.4



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3
    Mathis’s first petition, filed in December of 2009, resulted in the
reinstatement of his direct appeal rights nunc pro tunc. His second petition,
filed in March of 2012, resulted in the reinstatement of his right to petition
the Supreme Court for allowance of appeal, nunc pro tunc. Consequently,
the present petition, although technically his third, was the first filed after
his judgment of sentence became final. See Commonwealth v. Mathis,
120 A.3d 1057 (Pa. Super. 2015) (unpublished memorandum at *2).
4
  On September 8, 2015, the PCRA court ordered Mathis to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
Mathis complied with the court’s directive, and filed a concise statement on
September 29, 2015.




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       In his first issue, Mathis asserts trial counsel was ineffective for failing

to request a continuance when counsel entered his appearance on the first

day of trial. Mathis explains that, prior to trial, he had been represented by

Bruce Sandmeyer, Esq., who complained of late discovery in January of

2009, and filed a notice of alibi in March of 2009.            However, on May 11,

2009, the first day of jury selection, Kevin Kallenbach, Esq., entered his

appearance on Mathis’s behalf.          Mathis claims “it is unfathomable that an

attorney can be assigned and competently represent an individual on

charges like these – four felony and three misdemeanor 1 charges, on such

short notice.”5     Mathis’s Brief at 5.         In particular, Mathis contends trial

counsel was ineffective in failing to pursue an alibi defense, failing to obtain

cell phone tower records to show the location of his phone during the

robbery, failing to obtain prison phone records, and failing to review the

inventory list of items seized from Kaytlin Kramer’s truck “for possible

suppression and/or cross-examination of police in their testimony.” Id. at 6.

       When reviewing an order dismissing a PCRA petition, we must

determine whether the PCRA court’s findings of fact are supported by the

record,    and    whether      its   legal     conclusions   are   free   from   error.

Commonwealth v. Spotz, 84 A.3d 294, 311 (Pa. 2014). “Great deference


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5
  The record reveals that Mathis’s first attorney, Sandmeyer, was retained.
However, the record does not reveal whether Kallenbach was also retained
or appointed.



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is granted to the findings of the PCRA court, and these findings will not be

disturbed    unless   they     have   no   support     in   the     certified   record.”

Commonwealth v. Carter, 21 A.3d 680, 682 (Pa. Super. 2011) (citation

omitted).

       “[T]o prove counsel ineffective, the petitioner must show that: (1) his

underlying claim is of arguable merit; (2) counsel had no reasonable basis

for his action or inaction; and (3) the petitioner suffered actual prejudice as

a result.” Spotz, supra, 84 A.3d at 311. Moreover, “[c]ounsel is presumed

to have rendered effective assistance, and, if a claim fails under any

required element …, the court may dismiss the claim on that basis.”

Commonwealth v. Reid, 99 A.3d 470, 481 (Pa. 2014) (quotation omitted).

       Here, Mathis’s claim focuses on counsel’s failure to request a

continuance when he first entered his appearance on the morning of jury

selection.   Although Mathis insinuates counsel had inadequate time to

prepare for trial, he is not entitled to relief based on mere supposition.

Rather, in order to establish prejudice, Mathis must plead and prove that a

continuance would have “materially aided counsel in rebutting the testimony

of the Commonwealth’s witness[es.]” Commonwealth v. Goins, 495 A.2d

527,   531    (Pa.    1985),   superseded    by      statute   on     other     grounds,

Commonwealth v. Moran, 636 A.2d 612 (Pa. 1993), cert denied, 511 U.S.

1152 (1994).

       To that end, Mathis asserts trial counsel failed to (1) properly pursue

an alibi defense; (2) obtain cell phone tower records to show where Mathis’s

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phone was located at the time of the robbery; (3) obtain Kramer’s prison

phone records to demonstrate her post-arrest contact with Mathis; and (4)

review the list of items seized from Kramer’s truck “for possible suppression

and/or cross-examination of police in their testimony.” Mathis’s Brief at 6.

Based upon our review of the record, the parties’ briefs, and the trial court’s

opinions, we find Mathis is entitled to no relief on these claims.

      First, Mathis did present an alibi defense at trial.      Jillian Krastins,

Mathis’s girlfriend at the time of trial, testified that Mathis was with her in

her apartment on the evening of August 2, 2009, and did not leave until

approximately 6:00 a.m. the next morning when Kramer came looking for

him. See N.T., 5/13/2009, at 30-35. Mathis corroborated his whereabouts

with his own testimony.        See id. at 57-65.    Nevertheless, he does not

explain how his alibi would have been more credible had counsel requested a

continuance.

      Moreover, with regard to Mathis’s cell phone records, the PCRA court

noted the records were subpoenaed by the Commonwealth, entered into

evidence   at   trial,   and   corroborated   Kramer’s   testimony    that   she

communicated with Mathis during the robbery while she waited in the

getaway car. See PCRA Court Opinion, 2/14/2014, at 11. Although Mathis

contends counsel was ineffective for failing to obtain the cell phone tower

records in order to determine where Mathis’s phone was located at the time




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of the calls,6 the PCRA court concluded this claim had no merit because, in

contravention of Pa.R.Crim.P. 902(D),7 Mathis “failed to attach the ‘cell

phone tower records’ to his petition and has additionally failed to attach

documentation or an affidavit stating that such records were available at the

time of the trial.” Id. at 12. We agree. Without some proof that the cell

phone tower records would have established he was not at the club at the

time of the robbery, Mathis has failed to demonstrate how he was prejudiced

by counsel’s failure to obtain the records.

        Mathis also asserts counsel was ineffective for failing to obtain

Kramer’s prison phone call records to impeach her testimony. He does not

explain, however, what these records would have contained, or how they

could have been used to impeach Kramer.          Accordingly, Mathis has again

failed to demonstrate how this issue has arguable merit, or how he was

prejudiced by counsel’s omission. Indeed, absent some showing regarding



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6
  At trial, Mathis conceded he spoke with Kramer on his cell phone on the
night of the robbery, but claimed he was in Krastins’ apartment when he did
so. N.T., 5/13/2009, at 61-64.
7
    Rule 902 provides, in relevant part:

        (D) The defendant shall attach to the petition any affidavits,
        records, documents, or other evidence which show the facts
        stated in support of the grounds for relief, or the petition shall
        state why they are not attached.

Pa.R.Crim. P. 902(D).



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the relevance of these records, we will not find counsel ineffective for failing

to request a continuance prior to trial.

       Further, with regard to Mathis’s contention that trial counsel was

ineffective for failing to review the inventory list of items seized from

Kramer’s truck, we again find his unsubstantiated insinuation that the

inventory list might contain something exculpatory is not a basis for relief.

Moreover, Mathis failed to include this specific claim in either his pro se or

amended      PCRA    petition.      For   that   reason,   it   is   waived.     See

Commonwealth v. Elliott, 80 A.3d 415, 430 (Pa. 2013) (holding petitioner

waived claim on appeal; it was not raised in PCRA petition and petitioner did

not obtain permission to amend his petition to include the claim), cert.

denied, 135 S.Ct. 50 (U.S. 2014). Accordingly, we conclude Mathis is not

entitled to relief on his first issue.

       Next, Mathis argues trial counsel was ineffective for failing to request a

more    specific    corrupt      source   jury   instruction,   considering     “[t]he

Commonwealth’s case was largely predicated upon the testimony of Kaytlin

Kramer, [his] former girlfriend” and accomplice. Mathis’s Brief at 7. Mathis

emphasizes that Kramer had “much to gain by being a witness for the

Commonwealth.”       Id.   Indeed, he notes “[i]n exchange for her testimony

she was offered reduced charges and a diminished sentence.”               Id.   While

Mathis recognizes the trial court did provide a corrupt source instruction, he




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claims the court’s charge “did not adequately cover the situation, especially

due to the personal relationship he had with Ms. Kramer.”8 Id.

         Our review of the certified record, and in particular the court’s charge,

reveals the trial court provided the jury with a corrupt source instruction

taken     almost   verbatim     from    Pennsylvania      Standard   Suggested   Jury

Instructions (Criminal) 4.01. See N.T., 5/13/2009, at 176-177. Mathis does

not explain how the charge was inadequate, or what more the trial court

should have told the jury.         Accordingly, he is entitled to no relief on this

claim.

         In his final issue, Mathis challenges the sentence imposed by the trial

court.     Specifically, he contends:          (1) his sentence is illegal pursuant to

Alleyne v. United States, 133 S.Ct. 2151 (U.S. 2013); (2) the imposition

of a consecutive mandatory minimum sentence on the charge of conspiracy

“runs in opposition to the intent of 42 Pa.C.S.A. [§] 9716 and subsequent

provisions[;]”9 and (3) counsel was ineffective for failing to object to the

consecutive mandatory minimum sentences.                  See Mathis’s Brief at 8-12.

We again find no relief is warranted.




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8
    Kramer was Mathis’s girlfriend at the time of the crime.
9
    Mathis’s Brief at 11.




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        With regard to Mathis’s contention that his sentence is illegal,10 we

note that, in Alleyne, the United States Supreme Court held “[a]ny fact

that, by law, increases the penalty for a crime is an ‘element’ that must be

submitted to the jury and found beyond a reasonable doubt.”                   Alleyne,

supra, 133 S. Ct. at 2155. In interpreting that decision, the courts of this

Commonwealth have determined that our mandatory minimum sentencing

statutes, including Section 9712, are unconstitutional where the language of

those statutes “permits the trial court, as opposed to the jury, to increase

the defendant’s minimum sentence based upon a preponderance of the

evidence” standard.         Commonwealth v. Newman, 99 A.3d 86, 98 (Pa.

Super. 2014) (en banc), appeal denied, 121 A.3d 247 (Pa. 2015);

Commonwealth           v.   Valentine,         101   A.3d   801   (Pa.   Super.   2014)

(invalidating 42 Pa.C.S. § 9712), appeal denied, 124 A.3d 309 (Pa. 2015).

        However, recently, in Commonwealth v. Washington, ___ A.3d

___, ___, 2016 WL 3909088, at *8 (Pa. July 19, 2016), the Pennsylvania

Supreme Court definitively held that “Alleyne does not apply retroactively

to cases pending on collateral review.”              The Court found Alleyne did not

meet either criteria for the retroactive application of a new constitutional law

outlined in Teague v. Lane, 489 U.S. 288 (1989) (plurality), in that it was

neither “substantive in character, [nor a] watershed rule[] of criminal


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10
     PCRA counsel raised this claim in Mathis’s supplemental petition.



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procedure.” Washington, supra, ___ A.3d at ___, 2016 WL 3909088, at

*2 (citations and internal punctuation omitted).             Moreover, the Court also

declined to “recognize an independent state-level retroactivity jurisprudence

grounded on fairness considerations.” Id. at ___, 2016 WL 3909088, at *7.

       In the present case, Mathis’s judgment of sentence was final on March

27, 2013, 90 days after the Pennsylvania Supreme Court denied his petition

to appeal, and Mathis failed to petition the United States Supreme Court for

a writ of certiorari. See 42 Pa.C.S. § 9545(b)(3). See also U.S.Sup.Ct.R.

13.    Accordingly, Mathis’s sentence was final at the time Alleyne was

decided in June of 2013, and, pursuant to the holding of Washington,

supra, he is not entitled to relief from his Section 9712 sentences.

       With regard to Mathis’s other sentencing claims, we find they are

waived    for   our   review.       Mathis     did   not   challenge   either   counsel’s

ineffectiveness for failing to object to the imposition of three consecutive

mandatory sentences, or the court’s imposition of a consecutive sentence on

the count of conspiracy in either his pro se or supplemental PCRA petitions.

See Elliott, supra.         Accordingly, we may not consider these claims on

appeal.11

       Order affirmed.


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11
  We note neither of these claims involve the legality of Mathis’s sentence.
See Commonwealth v. Miller, 102 A.3d 988, 995 (Pa. Super. 2014)
(noting this Court may raise a legality of sentencing claim sua sponte).



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/31/2016




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