J-S06038-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                      IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                            Appellee

                       v.

ROBERT GRAHAM,

                            Appellant                   No. 2163 MDA 2014


                 Appeal from the PCRA Order December 1, 2014
               In the Court of Common Pleas of Lycoming County
              Criminal Division at No(s): CP-41-CR-0000877-2010


BEFORE: PANELLA, J., MUNDY, J., AND STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.:                       FILED JANUARY 28, 2016

        Appellant Robert Graham files this pro se appeal from the order

entered by the Court of Common Pleas of Lancaster County denying

Appellant’s petition pursuant to the Post Conviction Relief Act (“PCRA”).1

Appellant raises numerous claims of ineffectiveness of counsel.        As all of

Appellant’s claims are waived or meritless, we affirm.

        In the early morning hours of June 22, 2009, a man in dark sunglasses

and a hooded camouflage sweatshirt held up the Uni-Mart convenient store

on West Fourth Street in Williamsport.         Brandishing a firearm, the robber

ordered the clerk to open the register, grabbed $117 in cash, threatened to

shoot the clerk, and demanded she open the store safe.           When the clerk

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1
    42 Pa.C.S. §§ 9541-9546.



*Former Justice specially assigned to the Superior Court.
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informed the robber that she was unable to open it, the perpetrator stole

five cartons of cigarettes and fled the scene.

       In their subsequent investigation of the robbery, officers were able to

obtain latent fingerprints from the cash drawer and two other cartons of

cigarettes.   After the fingerprints were sent to a Pennsylvania State Police

laboratory, Sergeant Floyd Bowen determined that one of the fingerprints on

the cash drawer matched Appellant’s left thumbprint.         Approximately ten

months after the robbery, the Uni-Mart clerk contacted police after she

recognized Appellant in a newspaper photo as the individual who robbed her.

       Appellant was charged with two counts of robbery,2 theft by unlawful

taking,3 receiving stolen property,4 terroristic threats,5 and possessing an

instrument of crime.6       Appellant filed a pretrial motion, requesting a Frye

hearing7 to challenge the admissibility of the Commonwealth’s expert

testimony with respect to the latent fingerprints found in this case. The trial

court denied this pretrial motion.

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2
  18 Pa.C.S. § 3701(A)(1)(ii) (threaten immediate serious bodily injury); 18
Pa.C.S. § 3701(A)(1)(iv) (threaten immediate bodily injury).
3
  18 Pa.C.S. § 3921(a).
4
  18 Pa.C.S. § 3925(a).
5
  18 Pa.C.S. § 2706(a)(1).
6
  18 Pa.C.S. § 907(a).
7
   The Frye test, the standard which governs the admissibility of
scientifically-adduced expert evidence in Pennsylvania courts, was first
announced in Frye v. United States, 293 F. 1013 (D.C. Cir. 1923), and was
adopted by the Pennsylvania Supreme Court. See Commonwealth v.
Topa, 471 Pa. 223, 369 A.2d 1277 (1977).



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      Appellant proceeded to a jury trial and was convicted of all the

aforementioned offenses. The trial court imposed an aggregate sentence of

eleven to twenty-two years imprisonment. Appellant filed a post-sentence

motion, which the trial court denied.       On October 30, 2013, this Court

affirmed Appellant’s judgment of sentence.           See Commonwealth v.

Graham, 1714 MDA 2012 (Pa. Super. unpublished memorandum filed Oct.

30, 2013).

      On January 8, 2014, Appellant filed a pro se PCRA petition. The PCRA

court appointed counsel, who subsequently filed a “no merit” letter pursuant

to Commonwealth v. Turner, 518 Pa. 491, 544 A.2d 927 (1998) and

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

court notified Appellant of its intent to dismiss his petition without a hearing

pursuant to Pennsylvania Rule of Criminal Procedure 907 and granted

counsel’s petition to withdraw.    In response, Appellant filed an amended

petition raising additional issues.    After further review, the PCRA court

dismissed the petition without a hearing. This pro se appeal followed.

      Appellant raises the following seven issues for our review on appeal:

      1) Whether PCRA counsel was ineffective for failing to file [an]
      amended PCRA petition raising layered ineffectiveness of counsel
      reaching back to trial counsel’s ineffectiveness for failing to raise
      prosecutorial misconduct due to the Commonwealth’s failure to
      turn over all relevant and admissible evidence pertaining to the
      method used to conduct AFIS/IAFIS searches?

      2) Whether PCRA counsel was ineffective for failing to raise all
      prior [counsels’] ineffectiveness reaching back to trial counsel’s
      ineffectiveness for failing to request [an] interlocutory appeal of


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     [the] trial court’s denial of [a] Frye hearing, where [a] hearing
     was determinative of methodology used to identify Appellant’s
     partial thumbprint on [a] cash drawer by IAFIS search, without
     this evidence cause would not have existed to arrest Appellant?

     3) Whether PCRA counsel was ineffective for failing to raise
     direct appeal counsel’s ineffectiveness for failing to properly
     develop prejudicial effect of the denial of Frye hearing on direct
     appeal, which prejudiced Appellant on direct appeal to a denial of
     effective assistance of counsel?

     4) Whether PCRA counsel was ineffective for failing to raise in
     [an] amended PCRA petition all prior counsel’s ineffectiveness
     reaching back to trial counsel’s failure to argue and/or properly
     argue [a] Batson claim, where the Commonwealth did not have
     [a] race neutral basis for striking [the] only African American
     (Black) juror?

     5) Whether the PCRA court erred as a matter of law and abused
     [its] discretion and obstructed [Appellant’s] access to meaningful
     PCRA proceedings, where the PCRA court denied indigent [pro]
     se [Appellant] necessary transcripts of [the] September 6, 2011
     telephone hearing transcripts of Appellant’s expert witness?

     6) Whether the PCRA court erred as a matter of law and abused
     [its] discretion in denying [Appellant] leave to amend [his] PCRA
     petition or conduct a hearing regarding conflict of PCRA counsel
     appointed, where [Appellant] presented evidence of conflict of
     interest of PCRA counsel prior to dismissal of PCRA petition?

     7) Whether the PCRA court erred as a matter of law and abused
     its discretion sentencing Appellant to both mandatory minimum
     and maximum sentences in violation of Appellant’s Sixth
     Amendment right to trial by jury as announced in Apprendi v.
     New Jersey, clarified in Alleyne v. U.S., where the sentencing
     enhancement statute’s elements was not found by a jury, thus
     making Appellant’[s] sentence illegal, illegality of sentence
     cannot be waived?


Appellant’s Brief, at i (renumbered and reordered for ease of review).




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      Our standard of review regarding an order dismissing a petition under

the PCRA is whether the determination of the PCRA court is supported by the

evidence of record and is free of legal error. Commonwealth v. Ford, 44

A.3d 1190, 1194 (Pa. Super. 2012). In order to be eligible for PCRA relief,

the petitioner must prove by a preponderance of the evidence that his

conviction or sentence resulted from one or more of the enumerated

circumstances found in 42 Pa.C.S.A. § 9543(a)(2), which includes the

ineffective assistance of counsel.

      “It is well-established that counsel is presumed effective, and to rebut

that presumption, the PCRA petitioner must demonstrate that counsel's

performance was deficient and that such deficiency prejudiced him.”

Commonwealth v. Koehler, 614 Pa. 159, 36 A.3d 121, 132 (2012) (citing

Strickland v. Washington, 466 U.S. 688, 687-91 (1984)). To prevail on

an ineffectiveness claim, the petitioner has the burden to prove that “(1) the

underlying substantive claim has arguable merit; (2) counsel whose

effectiveness is being challenged did not have a reasonable basis for his or

her actions or failure to act; and (3) the petitioner suffered prejudice as a

result of counsel's deficient performance.” Commonwealth v. Sneed, 616

Pa. 1, 17, 45 A.3d 1096, 1106 (2012) (quoting Commonwealth v. Pierce,

567 Pa. 186, 786 A.2d 203, 213 (2001)). The failure to satisfy any one of

the prongs will cause the entire claim to fail. Id.

      In his first claim, Appellant argues that all prior counsel were

ineffective in failing to preserve a claim that the prosecution did not turn

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over all relevant evidence pertaining to the methodology used by the

Commonwealth’s expert in its fingerprint analysis. This issue is waived as

Petitioner failed to raise this particular challenge before the PCRA court in his

amended     petition    in   response   to    the   notice   to   dismiss.      See

Commonwealth v. Rigg, 84 A.3d 1080, 1085 (Pa. Super. 2014) (finding

the appellant waived claims raised for the first time on collateral appeal

when the appellant did not seek leave to amend his PCRA petition to add or

preserve the claims).

      In his second and third issues, Appellant claims PCRA counsel should

have raised the ineffectiveness of prior counsel in failing to successfully

challenge the trial court’s decision to deny his pretrial motion for a Frye

hearing in which Appellant sought to examine the accuracy of the

prosecution’s methodology in analyzing fingerprint evidence.                 Both of

Appellant’s claims fail as this Court determined on direct appeal that

Appellant did not meet his burden of showing the trial court abused its

discretion in denying his motion. Specifically, this Court found Appellant did

not demonstrate the methods used by the prosecution expert were not

generally accepted in the scientific community and or that he was prejudiced

by the lack of a hearing when Appellant was allowed to present his own

expert testimony to challenge the weight of the testimony offered by the

prosecution expert.      Accordingly, we conclude that Appellant’s proposed

ineffectiveness claims would not have been successful in light of our

previous decision.

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         In his fourth claim, Appellant contends that trial counsel failed to

present a proper Batson claim8 alleging that the Commonwealth did not

have a race neutral reason for striking the only African-American potential

juror.    This Court rejected Appellant’s Batson claim on direct appeal as we

reasoned that the trial court’s determination that the prosecution offered a

credible, race-neutral reason for exercising a peremptory challenge to strike

the juror was supported by the record.           We cannot find that counsel is

ineffective in failing to raise a meritless argument.       Commonwealth v.

Treiber, ---Pa.---, 121 A.3d 435, 445 (Pa. 2015) (“counsel cannot be

deemed ineffective for failing to raise a meritless claim”).

         In his fifth claim, Appellant contends that the lower court improperly

denied his requests for transcripts of the testimony of his expert witness

given via telephone. The PCRA court noted that it (1) denied Appellant’s pro

se requests which were made before his PCRA petition was filed and (2)

forwarded to Appellant’s appointed counsel requests Appellant made while

he was represented by counsel. After Appellant appealed to this Court, he

filed an application for relief seeking the same transcript.    On January 30,

2015, this Court granted the application and ordered the trial court to



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8
  Batson v. Kentucky, 476 U.S. 79, 85 (1986) (emphasizing that the
prosecution denies a defendant equal protection of the law when it “puts him
on trial before a jury from which members of his race have been
purposefully excluded”).



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provide copies of the transcript he requested along with the record

inventory.

      After reviewing the particular transcript he requested, Appellant claims

in his appellate brief that the PCRA court’s denial of his transcript requests

and its failure to transcribe other parts of his trial constitute due process

violations which prevented him from effectively seeking a meaningful appeal.

Appellant asserts that his trial transcripts are deficient because the closing

arguments of trial counsel and the prosecutor were never transcribed.

      With regard to the transcript that Appellant specifically requested,

Appellant does not acknowledge the PCRA court’s explanation that his

transcript requests were not properly made.         Even after receiving the

desired transcript after filing a motion in this Court, Appellant does not

explain how his delay in reviewing this particular transcript prejudiced him or

prevented him from presenting a meaningful appeal.            With respect to

Appellant’s claim that other transcripts are incomplete, we note that

Appellant never requested any of these transcripts and emphasize that the

burden to produce a complete record for appellate review rests solely with

the appellant.   “Our law is unequivocal that the responsibility rests upon the

appellant to ensure that the record certified on appeal is complete in the

sense that it contains all of the materials necessary for the reviewing court

to perform its duty.”     Commonwealth v. Preston, 904 A.2d 1, 7 (Pa.

Super. 2006). No further review of this claim is warranted.




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      In his sixth claim, Appellant contends the PCRA court should have

conducted a hearing to assess a conflict of interest of his appointed counsel

before dismissing his PCRA petition.     However, Appellant never articulated

any specific conflict, but merely disagreed with appointed counsel’s

assessment of Appellant’s case in her Turner/Finley letter.     As the PCRA

court determined that all of Appellant’s claims in his amended petition were

meritless, it was proper for the PCRA court to allow counsel to withdraw and

inform Appellant that he could proceed pro se or retain private counsel.

      Lastly, Appellant claims the trial court illegally imposed mandatory

minimum and maximum sentences in violation of Alleyne v. United States,

---U.S.---, 133 S.Ct. 2151 (U.S. 2013) and Apprendi v. New Jersey, 530

U.S. 466 (1998).       Appellant received a ten year mandatory minimum

sentence as he had been previously convicted of a crime of violence. As a

defendant’s minimum sentence cannot exceed one-half the maximum

sentence, the trial court imposed the statutory maximum of twenty years

imprisonment for first degree robbery.

      Although Apprendi and Alleyne provide that any fact which increases

the penalty for a crime must be submitted to a jury and proven beyond a

reasonable doubt, the United States Supreme Court has carved out an

exception to this rule for prior convictions. Alleyne, 133 S.Ct. at 2160, n.1

(citing Almendarez-Torres v. United States, 523 U.S. 224 (1998));

Apprendi, 530 U.S. at 490.        Accordingly, Appellant’s challenge to the

legality of his sentence has no merit.

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      For the foregoing reasons, we conclude that the PCRA court properly

found that Appellant is not entitled to collateral relief under the PCRA.

      Order affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/28/2016




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