J-S24023-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                 IN THE SUPERIOR COURT OF
                                                    PENNSYLVANIA
                          Appellee

                     v.

ODLEY LOUIS,

                          Appellant                No. 1125 MDA 2015


                 Appeal from the PCRA Order June 1, 2015
               In the Court of Common Pleas of Berks County
            Criminal Division at No(s): CP-06-CR-0000776-2010


BEFORE: GANTMAN, P.J., BOWES, AND MUSMANNO, JJ.

MEMORANDUM BY BOWES, J.:                             FILED MAY 16, 2016

     Odley Louis appeals pro se from the June 1, 2015 order denying him

PCRA relief. We vacate the June 1, 2015 order and Appellant’s February 14,

2012 judgment of sentence. We remand for the appointment of counsel and

re-sentencing.

     On October 23, 2009, Reading Police Officer Christopher A. Cortazzo

stopped Appellant’s vehicle because it had tinted passenger windows that

prevented him from seeing inside it and because Appellant changed lanes

without signaling.   Based upon Appellant’s nervousness, hand movements,

and failure to produce a driver’s license, Officer Cortazzo conducted a pat

down search of Appellant and discovered a large chunk of solid crack cocaine

weighing 48.1 grams. On February 2, 2012, a jury convicted Appellant of

possession of a controlled substance with intent to deliver (“PWID”) and
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possession of a controlled substance. The trial court found Appellant guilty

of summary traffic offenses relating to the lane change without a traffic

signal and the tinted windows.

      The matter proceeded to sentencing on February 14, 2012. Appellant

was sentenced on the PWID conviction to a mandatory minimum sentence of

five years imprisonment and a mandatory fine of $30,000 due to the weight

of the drugs and a prior conviction of PWID in 2002.          N.T. Sentencing,

2/14/12, at 7, 12; 18 Pa.C.S. § 7508(a)(3)(ii) (relating to mandatory

minimum sentence for possession of cocaine).         The two summary traffic

offenses were dismissed at sentencing.

      On appeal, we affirmed.       Commonwealth v. Louis, 63 A.3d 838

(Pa.Super. 2012) (unpublished memorandum).            We rejected Appellant’s

contentions that the traffic stop and pat down search were unconstitutional

and that the trial court improperly precluded Appellant from presenting

certain evidence on those issues.      On November 15, 2013, our Supreme

Court denied allowance of appeal. Commonwealth v. Louis, 80 A.3d 775

(Pa. 2013).

      Appellant filed a timely PCRA petition on May 23, 2014. He raised two

positions.    First, pre-trial and trial counsel were ineffective for failing to

obtain a copy of the dashboard camera videotape of his traffic stop from

Officer Cortazzo’s cruiser in order to disprove the officer’s claim that

Appellant’s vehicle had passenger windows that were tinted so heavily that

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the officer could not view inside. Appellant also averred that his sentence

was illegal and void under Alleyne v. United States, 133 S.Ct. 2151, 2155

(2013), wherein the United States Supreme Court held that “[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.” Pursuant to

Alleyne, the defendant has a constitutional right to have a jury decide the

existence of any fact, other than a prior conviction, beyond a reasonable

doubt if that fact triggers application of a mandatory minimum sentence. In

his PCRA petition, Appellant maintained that he was entitled to be sentenced

without application of the mandatory minimum sentence outlined in 18

Pa.C.S. § 7508 in that the weight of the drugs that he possessed for

purposes of application of § 7508 was determined at sentencing by the court

by a preponderance of the evidence, in derogation of Alleyne.

        Counsel was appointed, but was permitted to withdraw pursuant to

Commonwealth            v.   Turner,       544   A.2d   927   (Pa.   1988),   and

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

Counsel concluded that Alleyne was not applicable retroactively in this post-

conviction setting and that the contents of a videotape, if one existed, would

merely have been cumulative to pictures of Appellant’s vehicle admitted into


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1
    On appeal, Appellant does not raise any issue pertaining to the withdrawal.



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evidence.   The PCRA court issued notice of its intent to dismiss the PCRA

petition without a hearing as required by Pa.R.Crim.P. 907.

     Appellant filed responses both to PCRA counsel’s petition to withdraw

and the Pa.R.Crim.P. 907 notice.      As to the no-merit letter, Appellant

averred that counsel erred in concluding that he was not entitled to re-

sentencing since § 7508 was unconstitutional and void pursuant to Alleyne

and Superior Court case law interpreting that decision. In response to the

Pa.R.Crim.P. 907 notice, Appellant re-iterated the same position and

observed that this Court held § 7508 unconstitutional in a case where the

weight of the drugs was determined by the sentencing court rather than at

trial. Commonwealth v. Thompson, 93 A.3d 478 (Pa.Super. 2014); see

also Commonwealth v. Mosley, 114 A.3d 1072 (Pa.Super. 2015).

Appellant additionally claimed that, since Alleyne was decided on June 17,

2013, while his direct appeal was still pending, he was entitled to have it

applied herein. In neither document did Appellant argue that PCRA counsel

was ineffective concerning her analysis of the suppression issue.

     Appellant’s PCRA petition was denied on June 1, 2015, and this appeal

followed.   Appellant’s brief contains a lengthy and obtuse statement of

issues involved in this appeal. Appellant’s brief at 5-6. That statement can

be distilled into two positions: 1) his first five issues pertain to whether

Appellant is entitled to be re-sentenced without application of the mandatory

minimum sentence; and 2) his sixth and final averment is that suppression

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counsel and trial counsel should have obtained the dashboard camera

videotape of the traffic stop to refute the testimony of Officer Cortazzo that

Appellant had tinted windows on his vehicle that were opaque. We address

the contentions in reverse order since Appellant would be entitled to a new

trial rather than merely resentencing if his first position were found to be

meritorious.

      Initially, we observe that, “Our standard of review of an order granting

or denying relief under the PCRA requires us to determine whether the

decision of the PCRA court is supported by the evidence of record and is free

of legal error.”   Commonwealth v. Melendez-Negron, 123 A.3d 1087,

1090 (Pa.Super. 2015) (citation omitted). Appellant avers that suppression

and trial counsel rendered ineffective assistance.       “To plead and prove

ineffective assistance of counsel a petitioner must establish: (1) that the

underlying issue has arguable merit; (2) counsel's actions lacked an

objective reasonable basis; and (3) actual prejudice resulted from counsel's

act or failure to act.”    Commonwealth v. Stewart, 84 A.3d 701, 706

(Pa.Super. 2013) (en banc). The failure to meet any of these aspects of the

ineffectiveness test results in the claim failing. Id.

      Herein, as PCRA counsel observed, the record contains pictures of

Appellant’s truck, which had windows on either side of the rear passenger

seats that are tinted so darkly that one cannot view inside the vehicle.

Hence, any videotape made of the traffic stop would have been cumulative

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to the pictures submitted by Appellant.         Thus, prior counsel were not

ineffective in this respect.

      However, we do conclude that Appellant is entitled to relief under

Alleyne. Our decision in Commonwealth v. Ruiz, 131 A.3d 54 (Pa.Super.

2015), is controlling.         The defendant therein was denied PCRA relief

pursuant to a timely-filed PCRA petition. On appeal, the defendant, who was

sentenced under a mandatory minimum ruled unconstitutional by this Court

pursuant to Alleyne, claimed to be entitled to be re-sentencing under

Alleyne and our decision.         We agreed with that contention, vacated the

judgment of sentence, and remanded for resentencing.

      The Ruiz Court concluded that Ruiz was entitled to be re-sentenced

since he filed a timely PCRA petition and since Alleyne had been decided

when his judgment of sentence was not final, as defined by the PCRA.

Specifically, Ruiz did not file a direct appeal, but Alleyne was issued within

the thirty-day window for filing one.

      In Ruiz, we specifically distinguished Commonwealth v. Riggle, 119

A.3d 1058 (Pa.Super. 2015), which held that a PCRA petitioner is not

entitled to retroactive application of the Alleyne decision. The Ruiz Court

concluded that Riggle was inapplicable because Alleyne was issued after

Riggle’s sentence was final, as defined by the PCRA.         In so doing, we

observed that in Commonwealth v. Newman, 99 A.3d 86 (Pa.Super.

2014) (en banc), we held that Alleyne applies to any case pending on direct

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appeal when Alleyne was filed. See Schriro v. Summerlin, 542 U.S. 348,

351 (2004) (“When a decision of this Court results in a ‘new rule,’ that rule

applies to all criminal cases still pending on direct review.”).2

         Our conclusion in Ruiz was that, if a defendant’s direct appeal was

pending when Alleyne was filed, the defendant is entitled to relief pursuant

to a timely PCRA petition since an Alleyne claim is a non-waivable challenge

to the legality of sentence, which is cognizable under the PCRA.              See

Newman, supra at 90 (“challenge to a sentence premised upon Alleyne . .

. implicates the legality of the sentence,” and such a challenge cannot be

waived); Commonwealth v. Beck, 848 A.2d 987, 989 (Pa.Super. 2004)

(“Issues concerning the legality of sentence are cognizable under the

PCRA.”). Under Ruiz, a defendant is entitled to relief pursuant to Alleyne if

the defendant’s judgment of sentence was still pending on direct review, as

determined by reference to § 9545(b)(3) of the PCRA, when Alleyne was

filed.

         We find Ruiz controlling.      Appellant’s judgment of sentence was still

pending on direct review when Alleyne was issued.              Section 9545(b)(3)

states, “For purposes of this subchapter, a judgment becomes final at the
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2
   Alleyne is a new rule of law in that it overruled existing Supreme Court
precedent that provided that any fact necessary to trigger application of a
mandatory minimum sentence did not have to be submitted to a jury and
proven beyond a reasonable doubt. See Harris v. United States, 536 U.S.
545 (2002); McMillan v. Pennsylvania, 477 U.S. 79 (1986).



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conclusion of direct review, including discretionary review in the Supreme

Court of the United States and the Supreme Court of Pennsylvania, or at the

expiration of time for seeking the review.” 42 Pa.C.S. § 9545(b)(3).   Our

Supreme Court denied allowance of appeal from our affirmance of

Appellant’s judgment of sentence on November 15, 2013.        Alleyne was

issued on June 17, 2013, while Appellant’s direct appeal was pending, and

he therefore is entitled to application of Alleyne, Thompson, and Moseley.

      The June 1, 2015 PCRA order and the February 14, 2012 judgment of

sentence are vacated. Case remanded for resentencing.     Counsel is to be

appointed to Appellant for purposes of the new sentencing hearing.

Jurisdiction relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/16/2016




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