J-S62038-17


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,             :   IN THE SUPERIOR COURT OF
                                          :         PENNSYLVANIA
                  Appellee                :
                                          :
          v.                              :
                                          :
DAVID PRESBITERO PEREZ,                   :
                                          :
                  Appellant               :   No. 363 MDA 2017

                  Appeal from the PCRA Order February 6, 2017
                in the Court of Common Pleas of Lebanon County,
               Criminal Division, at No(s): CP-38-CR-0001021-2012

BEFORE:        STABILE, MOULTON, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.:                FILED NOVEMBER 09, 2017

      David Presbitero Perez (Appellant) appeals from the February 6, 2017

order that dismissed his petition filed pursuant to the Post Conviction Relief

Act (PCRA), 42 Pa.C.S. §§ 9541-9546. We affirm in part, vacate in part, and

remand for proceedings consistent with this memorandum.

      On Appellant’s direct appeal, this Court summarized the underlying

facts of the case as follows.

            Late in the evening of May 13, 2012, three masked men
      broke into an apartment located behind Francisco’s Pizza, at 375
      10th Street, Lebanon.    The men took personal property from
      three victims who were inside the apartment, including money, a
      wallet, and two iPods. The intruders told the victims to take off
      their pants, and threatened to kill them if they did or said
      anything.

            Jairo Madrigal, an employee of Francisco’s Pizza, was
      standing outside of the back door of the pizzeria smoking a
      cigarette when two masked men exited the apartment, and


*Retired Senior Judge assigned to the Superior Court.
J-S62038-17


     dragged him inside. Madrigal immediately recognized one of the
     masked men by voice as Appellant. Madrigal was familiar with
     Appellant’s voice, having known him for several years. Appellant
     told the other intruders that he would have to kill Madrigal, since
     Madrigal knew him. When asked by the intruders, Madrigal
     admitted that Francisco Sandoval was next door inside the
     pizzeria he owned. Appellant grabbed Madrigal, put a gun in his
     mouth, and forced him into the pizzeria. The other two intruders
     initially remained inside of the apartment with the other three
     victims.

           Sandoval was indeed inside his pizzeria, counting money
     from wire transfers processed through his adjoining business,
     Francisco’s Minimart. Appellant entered with the gun still in
     Madrigal’s mouth and told Sandoval to place all of the money
     and his wallet in a plastic bag. A co-conspirator aided Appellant
     in taking the money from Sandoval. Sandoval also recognized
     Appellant by voice.         Like Madrigal, Sandoval had known
     Appellant for several years. Sandoval testified that Appellant
     lived across the street, was a customer of Francisco’s Pizza—as
     recently as a week before the robbery— and frequently parked
     his car illegally in the pizzeria’s parking lot.

           According to the Commonwealth’s witness, Anthony Ortiz,
     Appellant later approached him on the street and admitted to the
     robberies. At the time of his testimony, Ortiz was facing charges
     for robbery and assault in an unrelated case.

           Following a jury trial, on March 5, 2013, Appellant was
     convicted of five counts of robbery, five counts of criminal
     conspiracy to commit robbery, and one count of terroristic
     threats. On April 17, 2013, the trial court sentenced Appellant
     to an aggregate of 11 to 25 years in prison.

Commonwealth v. Perez, 105 A.3d 31 (Pa. Super. 2014) (unpublished

memorandum at 1-3) (citation and footnotes omitted). This Court affirmed

Appellant’s judgment of sentence on June 11, 2014, and Appellant did not

seek review from our Supreme Court. Id.




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     Appellant pro se timely filed a PCRA petition on June 19, 2015.

Counsel was appointed, amended and supplemental petitions were filed, and

a hearing was held on October 24, 2016. The PCRA court denied Appellant’s

petition by order of February 6, 2017.       Appellant timely filed a notice of

appeal.

     Appellant presents this Court with 20 issues for our consideration.

Appellant’s Brief at 4-10. Before we begin, we note our standard of review:

           We review a ruling by the PCRA court to determine
     whether it is supported by the record and is free of legal error.
     Our standard of review of a PCRA court’s legal conclusions is de
     novo.

            To be entitled to PCRA relief, [a petitioner] must establish,
     by a preponderance of the evidence, his conviction or sentence
     resulted from one or more of the enumerated errors in 42
     Pa.C.S. § 9543(a)(2). These errors include a constitutional
     violation or ineffectiveness of counsel, which so undermined the
     truth-determining process that no reliable adjudication of guilt or
     innocence could have taken place. Additionally, [the petitioner]
     must show his claims have not been previously litigated or
     waived, and the failure to litigate the issue prior to or during trial
     ... or on direct appeal could not have been the result of any
     rational, strategic or tactical decision by counsel. 42 Pa.C.S.
     § 9543(a)(3), (a)(4). An issue is previously litigated if the
     highest appellate court in which [appellant] could have had
     review as a matter of right has ruled on the merits of the issue.
     42 Pa.C.S. § 9544(a)(2). An issue is waived if [the petitioner]
     could have raised it but failed to do so before trial, at trial, ... on
     appeal or in a prior state postconviction proceeding.

Commonwealth v. Cousar, 154 A.3d 287, 296 (Pa. 2017) (internal

citations and quotation marks omitted).




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      All but one of Appellant’s issues raise a claim of ineffective assistance

of trial counsel. Appellant’s Brief at 4-10. Accordingly, the following legal

principles apply to our review.

      Pursuant to guarantees found in the Sixth Amendment to the
      United States Constitution and Article I, § 9 of the Pennsylvania
      Constitution, a defendant is entitled to the right to effective
      counsel. This right is violated where counsel’s performance so
      undermined the truth-determining process that no reliable
      adjudication of guilt or innocence could have taken place. In
      Pennsylvania, courts apply a three-pronged test for analyzing
      whether trial counsel was ineffective…. The [] test requires a
      PCRA petitioner to prove: (1) the underlying legal claim was of
      arguable merit; (2) counsel had no reasonable strategic basis for
      his action or inaction; and (3) the petitioner was prejudiced—
      that is, but for counsel’s deficient stewardship, there is a
      reasonable likelihood the outcome of the proceedings would have
      been different. If a petitioner is unable to prove any of these
      prongs, his claim fails.

Commonwealth v. Simpson, 112 A.3d 1194, 1197 (Pa. 2015).

      The argument section of Appellant’s brief for each of his 19 claims of

ineffective assistance of counsel follows the same pattern. The above three-

prong test is cited; reference is made to Appellant’s testimony at the PCRA

hearing while the testimony of trial counsel is completely ignored; the claim

that counsel had no reasonable basis for failing to do what Appellant testified

that he wanted to be done is stated without any reference to counsel’s

testimony or the PCRA court’s factual findings; and the following bald

assertion of prejudice is repeated verbatim:

            Moreover, Appellant must prove that he was prejudiced by
      the attorney’s decisions. Prejudice can be described as whether,
      but for the arguably ineffective act or omission, there is a


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      reasonable probability that the outcome would have been
      different. Commonwealth v. Polston, 616 A.2d 677 (Pa.
      Super. 1992). In the instant case, Appellant avers that the
      outcome of his case would have been different if it were not for
      Trial Counsel’s clear ineffectiveness.

Appellant’s Brief at 20, 26, 31-32, 34-35, 37, 41, 45, 47-48, 51, 53-54, 56-

57, 59, 62, 64-65, 67, 69-70, 73, 76.

       Thus, Appellant asks us to grant him relief by utterly ignoring all

evidence offered at the PCRA hearing that was not favorable to Appellant’s

position, as well as the PCRA court’s findings and rationale 1 – something this

Court cannot and will not do. See, e.g., Commonwealth v. Koehler, 36

A.3d 121, 131 (Pa. 2012) (“The scope of review is limited to the findings of

the PCRA court and the evidence of record, viewed in the light most

favorable to the prevailing party at the PCRA court level.”).    Furthermore,

our Supreme Court has made it clear that “boilerplate allegations and bald

assertions of no reasonable basis and/or ensuing prejudice cannot satisfy a

petitioner’s burden to prove that counsel was ineffective.” Commonwealth


1 For example, regarding Appellant’s claim that trial counsel should have
called Brenda Perez as a witness at trial, the PCRA court found that Ms.
Perez was not credible, that counsel did interview her prior to trial and
determined that her alibi testimony did not place Appellant with her during
the time of the incidents at issue, and that “the substance of her testimony
was so easily impeachable that her testimony could not possibly have
impacted the outcome of trial.” PCRA Court Opinion, 2/6/2017, at 10-12.
Appellant does not address these factual determinations, let alone offer
argument as to why they are the result of an abuse of discretion. We
discern similar deficiencies as to each and every one of Appellant’s
ineffective-assistance-of-counsel claims.



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v. Paddy, 15 A.3d 431, 443 (Pa. 2011). Accordingly, Appellant has failed to

meet his burden to convince this Court that the PCRA court erred in rejecting

any of his 19 claims of trial counsel’s ineffectiveness. Commonwealth v.

Miner, 44 A.3d 684, 688 (Pa. Super. 2012) (“It is an appellant’s burden to

persuade us that the PCRA court erred and that relief is due.”).

      Appellant’s remaining claim is that his sentence is illegal under

Alleyne v. United States, 133 S.Ct. 2151 (2013) (holding that a fact which

triggers the imposition of a mandatory minimum sentence is an element of

the crime and must, therefore, be determined beyond a reasonable doubt by

a jury).   Appellant’s Brief at 14-16.        Appellant claims that his sentence

includes a mandatory term under 42 Pa.C.S. § 9712 (“Sentences for

offenses   committed     with   firearms”),    which   this   Court   held   to   be

unconstitutional under Alleyne in Commonwealth v. Valentine, 101 A.3d

801 (Pa. Super. 2014).

      The PCRA court rejected Appellant’s Alleyne claim on the basis that

our Supreme Court has held that Alleyne does not apply retroactively to

cases on collateral review.      PCRA Court Opinion, 2/6/2017, at 9 (citing

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

mandatory minimum sentences imposed in 1998 were not subject to

collateral attack based upon Alleyne)).

      The PCRA court misconstrued to Alleyne’s “retroactive” application in

the PCRA context.    As the Commonwealth correctly concedes, if Appellant


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has received a mandatory minimum sentence rendered invalid under

Alleyne, Alleyne’s holding would apply to Appellant because it was decided

before Appellant’s direct review concluded.     Commonwealth’s Brief at 28

(citing Commonwealth v. Newman, 99 A.3d 86, 90 (Pa. Super. 2014) (en

banc) (“[Newman’s] case was still pending on direct appeal when Alleyne

was handed down, and the decision may be applied to [Newman’s] case

retroactively.”).

      The legal issue before us is simple: if the trial court when sentencing

Appellant applied a statute, such as 42 Pa.C.S. § 9712, that provided for

application of a mandatory minimum sentence upon fact-finding that was not

an element of the crime,2 Appellant’s sentence must be vacated and

resentencing without consideration of any such statute must take place.

See, e.g., Commonwealth v. Ferguson, 107 A.3d 206, 216 (Pa. Super.

2015). If no mandatory minimum statute was considered, no relief is due.

      However, the factual question of whether Appellant did receive a

mandatory minimum sentence cannot be resolved upon the record before

us.   The record shows that the Commonwealth filed notice of its intent to

seek “any and all applicable mandatory sentences.”        Sentencing Hearing

2 The fact that the jury was asked to determine whether Appellant or an
accomplice used a firearm does not solve an Alleyne problem if a
mandatory minimum was applied in Appellant’s sentencing. See Valentine,
101 A.3d at 812 (holding that the offending sections of 42 Pa.C.S. § 9712
were not severable, and “the trial court lacked the authority to allow the jury
to determine the factual predicates” of the statute).



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Notice, 3/5/2013.    Yet, no mandatory minimum statute is cited at the

sentencing hearing or in the written sentencing order. The sentencing court

did mention a “sentence that must be applied,” but did so in the context of

“enhancements” related to Appellant’s use of a gun.3 N.T., 4/17/2013, at 8.

On the “mandatory sentence” section of the court commitment form, the

“no” box is checked.      Court Commitment, 5/20/2013, at 1.           But the

presentence investigation report, in providing standard, aggravated, and

mitigated “ranges” for Appellant’s convictions, lists a single number (60

months) for many counts, and ranges (e.g., 60-72 months, or 3-14 months)




3  The Commonwealth indicates that, rather than a mandatory minimum
statute, it was the deadly weapon enhancement sentencing guidelines that
were applied in Appellant’s case. Commonwealth’s Brief at 28. If the
Commonwealth is correct, Alleyne would not entitle Appellant to relief. See
Commonwealth v. Ali, 112 A.3d 1210, 1226 (Pa. Super. 2015), reversed
on other grounds, 149 A.3d 129 (Pa. 2015) (“By their very character,
sentencing enhancements do not share the attributes of a mandatory
minimum sentence that the Supreme Court held to be elements of the
offense that must be submitted to a jury. The enhancements do not bind a
trial court to any particular sentencing floor, nor do they compel a trial court
in any given case to impose a sentence higher than the court believes is
warranted. They require only that a court consider a higher range of
possible minimum sentences. … Thus, Alleyne has no application to the
enhancements.”); Commonwealth v. Buterbaugh, 91 A.3d 1247, 1270
n.10 (Pa. Super. 2014) (en banc) (same). It is the non-binding nature of
sentencing guidelines that leaves us unpersuaded by the Commonwealth’s
argument that, even if Appellant has received a mandatory minimum, the
sentence was fair because the mandatory minimum fell within the standard
range sentence suggested by the guidelines. Commonwealth’s Brief at 28-
29.



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for others. Presentence Investigation Report, 3/31/2015,4 at 7. From the

information we have, this does not appear to correspond to the sentencing

guidelines for the applicable crimes under the basic, deadly weapon

possessed, or deadly weapon used sentencing matrix.

     Because we cannot determine whether Appellant received an illegal

sentence, we vacate that portion of the PCRA court’s order that denied

Appellant relief on his Alleyne claim, and remand for the PCRA court to

make the factual determination of whether any mandatory minimum

sentence was applied at Appellant’s April 17, 2013 sentencing.

     Order affirmed in part and vacated in part. Case remanded for further

proceedings consistent with this memorandum. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 11/9/2017




4The report is dated April 1, 2013, but was not filed or docketed until March
31, 2015, after it was requested by Appellant.



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