J-S40043-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA              :   IN THE SUPERIOR COURT OF
                                           :        PENNSYLVANIA
                                           :
              v.                           :
                                           :
                                           :
 CORNEILUS TAYLOR,                         :
                                           :
                    Appellant              :   No. 1399 EDA 2017

                Appeal from the PCRA Order March 28, 2017
   In the Court of Common Pleas of Delaware County Criminal Division at
                     No(s): CP-23-CR-0001566-2015


BEFORE:    LAZARUS, J., DUBOW, J., and PLATT*, J.

MEMORANDUM BY DUBOW, J.:                         FILED NOVEMBER 13, 2018

      Appellant, Cornelius Taylor, appeals pro se from the March 28, 2017

Order entered in the Delaware County Court of Common Pleas dismissing his

first Petition filed under the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§

9541-9546. After careful review, we affirm.

      The PCRA court set forth the underlying facts and we need not repeat

them in detail. See PCRA Court Opinion, filed 6/27/17, at 1-3. Briefly, on

February 2, 2015, Appellant, Lashon Royster (“Victim”), and a group of friends

that lived together drove from Philadelphia to Darby Borough Medical Center

to accompany Appellant’s fiancé, Mama Shirl, to a medical appointment.

Appellant’s niece, Tia Taylor, drove the vehicle. Appellant and the Victim got

in an argument in the waiting room. Upon leaving the medical appointment,

Appellant told the Victim that he was not allowed to drive back to Philadelphia

with the group and that he should find a new place to live. Appellant sat in

____________________________________
* Retired Senior Judge assigned to the Superior Court.
J-S40043-18



the back of the car and Mama Shirl sat in the front passenger seat. When the

Victim leaned in the car to help Mama Shirl buckle her seatbelt, Appellant

instructed Tia to drive away and threatened to kill the Victim. Tia began to

drive and Appellant reached over the seat and stabbed the Victim in the back

of the neck. While a struggle ensued between Appellant and the Victim, Tia

continued to drive and hit several other vehicles. Eventually, the vehicle came

to a stop.

      Officers Charles Shuler and Randall Kennedy from the Darby Borough

Police Department arrived at the scene. Officer Shuler followed the Victim to

the hospital where he took the Victim’s statement. Officer Kennedy remained

on the scene and spoke to a witness, Alexander Miller, who stated that the

man who stabbed the Victim, later identified as Appellant, was still in the

vehicle.     Officer Kennedy arrested Appellant, took him into custody, and

obtained a statement from Appellant. Appellant told Officer Kennedy that he

stabbed the Victim in the face and neck due to an argument that day and an

alleged previous     mistreatment of Mama Shirl by        the Victim.      The

Commonwealth charged Appellant with Attempted Criminal Homicide,

Aggravated Assault, and related charges.

      A jury trial commenced on September 22, 2015. The Commonwealth

presented testimony from the Victim, Alexander Miller, Officer Shuler, and

Officer Kennedy.      Appellant presented testimony from Tia Taylor.        On

September 23, 2015, the jury convicted Appellant of Aggravated Assault and




                                     -2-
J-S40043-18



Possession of an Instrument of Crime.1           The jury acquitted Appellant of

Attempted Criminal Homicide.

        On December 17, 2015, the trial court sentenced Appellant to an

aggregate term of eleven to twenty-two years’ incarceration. Appellant did

not file a Post-Sentence Motion or a Notice of Appeal.

        On July 8, 2016, Appellant filed a timely pro se PCRA Petition, his first,

alleging, inter alia, ineffective assistance of counsel and a violation of his

constitutional rights. The PCRA court appointed counsel who filed a Petition

to Withdraw and a Turner/Finley “no merit” letter.2 On March 2, 2017, the

PCRA court issued a Pa.R.Crim.P. 907 Notice of Intent to Dismiss Without a

Hearing and issued an Order granting PCRA counsel’s Motion to Withdraw. On

March 29, 2017, after considering Appellant’s pro se Response, the PCRA court

dismissed the PCRA Petition.

        Appellant timely appealed pro se. Both Appellant and the PCRA court

complied with Pa.R.A.P. 1925.

        Appellant raises the following four issues on appeal:

        1. Whether [] Appellant is entitled to relief on his claim of trial
           counsel’s ineffective assistance for failure to raise a self-
           defense claim?




____________________________________________


1   18 Pa.C.S. § 2702(a) and 18 Pa.C.S. § 907(a), respectively.

2Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988) and Commonwealth
v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).

                                           -3-
J-S40043-18


      2. Whether [] Appellant is entitled to relief on his claim of trial
         counsel’s ineffective assistance for failure to call fact and
         character witnesses on Appellant’s behalf at trial?

      3. Whether [] Appellant is entitled to relief on his claim of trial
         counsel’s ineffective assistance for failure to request a
         psychological evaluation?

      4. Whether Appellant[’s] sentence pursuant to [42 Pa.C.S. §
         9714] is unconstitutional [and] illegal.

Appellant’s Brief at 2 (some capitalization omitted).

      We review the denial of a PCRA Petition to determine whether the record

supports the PCRA court’s findings and whether its order is otherwise free of

legal error. Commonwealth v. Fears, 86 A.3d 795, 803 (Pa. 2014). This

Court grants great deference to the findings of the PCRA court if they are

supported by the record. Commonwealth v. Boyd, 923 A.2d 513, 515 (Pa.

Super. 2007).    We give no such deference, however, to the court’s legal

conclusions.    Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa. Super.

2012).

      To be eligible for relief pursuant to the PCRA, Appellant must establish,

inter alia, that his conviction or sentence resulted from one or more of the

enumerated errors or defects found in 42 Pa.C.S. § 9543(a)(2): a

constitutional violation; ineffective assistance of counsel; an unlawfully

induced plea; improper obstruction by governmental officials; a case where

exculpatory evidence has been discovered; an illegal sentence has been

imposed; or the tribunal conducting the proceeding lacked jurisdiction. See

42 Pa.C.S. § 9543(a)(2)(i)-(viii). Appellant must also establish that the issues

                                     -4-
J-S40043-18


raised in the PCRA petition have not been previously litigated or waived. 42

Pa.C.S. § 9543(a)(3).

      There is no right to a PCRA hearing; a hearing is unnecessary where the

PCRA court can determine from the record that there are no genuine issues of

material fact.   Commonwealth v. Jones, 942 A.2d 903, 906 (Pa. Super.

2008). “With respect to the PCRA court’s decision to deny a request for an

evidentiary hearing, or to hold a limited evidentiary hearing, such a decision

is within the discretion of the PCRA court and will not be overturned absent

an abuse of discretion.” Commonwealth v. Mason, 130 A.3d 601, 617 (Pa.

2015).

      In his first three issues, Appellant avers that his trial counsel was

ineffective.   The law presumes counsel has rendered effective assistance.

Commonwealth v. Rivera, 10 A.3d 1276, 1279 (Pa. Super. 2010). “[T]he

burden of demonstrating ineffectiveness rests on [A]ppellant.” Id. To satisfy

this burden, Appellant must plead and prove by a preponderance of the

evidence that: “(1) his underlying claim is of arguable merit; (2) the particular

course of conduct pursued by counsel did not have some reasonable basis

designed to effectuate his interests; and, (3) but for counsel’s ineffectiveness,

there is a reasonable probability that the outcome of the challenged

proceeding would have been different.” Commonwealth v. Fulton, 830 A.2d

567, 572 (Pa. 2003). Failure to satisfy any prong of the test will result in




                                      -5-
J-S40043-18


rejection   of   the   appellant’s     ineffective   assistance    of   counsel    claim.

Commonwealth v. Jones, 811 A.2d 994, 1002 (Pa. 2002).

       In his first issue, Appellant avers that his trial counsel was ineffective

for failing request a self-defense jury instruction. Appellant’s Brief at 6-7.

Appellant asserts that Tia Taylor testified that the Victim was aggressive and

that everyone was in danger. Id. at 7. Appellant argues that “[Tia] testified

to an event that would put any citizen into fear” and that trial counsel failed

to “present a defense that Appellant was in self-defense of himself, and/or

other.” Id. Our review of the record belies this claim.

       Trial counsel did, in fact, request two separate jury instructions

regarding    a   justification   defense,      including   both   justification   to   use

force/deadly force in self-defense and justification to use deadly force in

defense of others. The trial court denied these requests.3 N.T. Trial, 9/23/15,

at 21. Accordingly, Appellant’s assertion that trial counsel was ineffective for

failing to present a justification defense lacks arguable merit.

       In his second issue, Appellant claims that trial counsel was ineffective

for failure to call fact and character witnesses on Appellant’s behalf at trial.

Appellant’s Brief at 8. Appellant argues that trial counsel failed to investigate


____________________________________________


3 Appellant has waived any claim that the trial court abused its discretion in
denying trial counsel’s request for self-defense jury instructions, as the
appropriate time to raise that issue was on direct appeal. See Fulton, supra
at 571 (Pa. 2003) (“An issue is waived for purposes of the PCRA if the
petitioner could have raised it but failed to do so before trial, at trial, during
unitary review, [or] on appeal[.]”); 42 Pa.C.S. § 9544(b).

                                           -6-
J-S40043-18


or interview potential witnesses from the crime scene. See id. at 8. Appellant

fails to identify who these witnesses are, and, therefore, Appellant’s claim

lacks arguable merit.

      For an appellant to be entitled to relief on a claim of ineffectiveness of

counsel for failure to call a witness, the appellant must demonstrate that: (1)

the witness existed, was available, and willing to cooperate; (2) counsel knew

or should have known of the witness; and (3) the absence of the witness's

testimony prejudiced the appellant. Commonwealth v. Birdsong, 24 A.3d

319, 334 (Pa. 2011).

       Instantly, Appellant fails to name any of the witnesses to whom he is

referring.   Without disclosing the identity of the witnesses, Appellant cannot

establish that the witnesses actually existed, were available, and were willing

to cooperate. Accordingly, Appellant’s claim that counsel was ineffective for

failing to call certain fact and character witnesses lacks arguable merit.

      In his third issue, Appellant avers that trial counsel was ineffective for

failing to request a psychological evaluation.    Appellant’s Brief at 8.    This

averment is factually inaccurate. The PCRA court explains, and our review of

the record reveals, that trial counsel did request both a psychological and

psychiatric evaluation prior to sentencing.   See N.T. Trial, 9/23/15, at 75.

Both evaluations were completed, presented to the court, and considered by

the court prior to sentencing.       See N.T. Sentencing, 12/17/15, at 8.

Accordingly, this issue is devoid of arguable merit.


                                     -7-
J-S40043-18


      In his fourth and final issue, Appellant asserts that his sentence is illegal.

Appellant’s Brief at 9.   Appellant avers that the trial court sentenced him

pursuant to 42 Pa.C.S. § 9714, and that there are pending cases in the

Pennsylvania Supreme Court dealing with the “illegality” of Section 9714.

Therefore, Appellant requests to be re-sentenced pending the outcome of

those cases. Id. at 9-10.

      As an initial matter, we recognize that a legality of sentencing issue is

reviewable under the PCRA and cannot be waived.              Commonwealth v.

Jones, 932 A.2d 179, 182 (Pa. Super. 2007). As such, even though Appellant

raises this issue for the first time in his Brief, we will address it, bearing in

mind our well-settled standard of review. As issues relating to the legality of

a sentence are questions of law, our standard of review is de novo and our

scope of review is plenary. Commonwealth v. Kline, 166 A.3d 337, 340–

41 (Pa. Super. 2017), appeal denied, 176 A.3d 236 (Pa. 2017).

      Appellant correctly asserts that the trial court sentenced him to an

aggregate term of eleven to twenty-two years’ incarceration pursuant to

Section 9714, which, in relevant part, imposes a mandatory minimum

sentence of 10 years’ incarceration for any person who has previously been

convicted of a crime of violence.       See 42 Pa.C.S. § 9714(a)(1).         While

Appellant argues that Section 9714 is unconstitutional, and therefore illegal,

Appellant’s argument is incorrect. In Alleyne, 570 U.S. 99, 112-13 (2013),

the Supreme Court of the United States held, inter alia, that the Sixth


                                       -8-
J-S40043-18


Amendment requires that any fact – other than a prior conviction – that

increases a mandatory minimum sentence for an offense must be submitted

to the jury and proven beyond a reasonable double. Moreover, this Court has

specifically held that Section 9714, which increases mandatory minimums

based     on   prior   convictions,   is   not   unconstitutional   under   Alleyne.

Commonwealth v. Reid, 117 A.3d 777, 785 (Pa. Super. 2015). Accordingly,

the trial court did not sentence Appellant under an unconstitutional statute

that renders his sentence illegal. There is nothing in the record to support

Appellant’s argument that his sentence is illegal and, thus, Appellant is not

entitled to relief.

        Because Appellant failed to meet his burden of establishing that trial

counsel was ineffective, or that his sentence is illegal, he is not entitled to

relief under the PCRA.        Accordingly, the PCRA court did not err when it

dismissed Appellant’s PCRA Petition.

        Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/13/18




                                           -9-
