J-S05011-15

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,              : IN THE SUPERIOR COURT OF
                                           :      PENNSYLVANIA
                     Appellee              :
                                           :
             v.                            :
                                           :
DONTE TAYLOR,                              :
                                           :
                     Appellant             : No. 85 WDA 2014

                  Appeal from the PCRA Order December 5, 2013,
                     Court of Common Pleas, Allegheny County,
                  Criminal Division at No. CP-02-CR-0018805-2006

BEFORE: DONOHUE, SHOGAN and STABILE, JJ.

MEMORANDUM BY DONOHUE, J.:                       FILED FEBRUARY 18, 2015

       Appellant, Donte Taylor (“Taylor”), appeals from the order entered on

December 5, 2013 by the Court of Common Pleas, Allegheny County,

denying his petition for relief pursuant to the Post-Conviction Relief Act

(“PCRA”).1    For the reasons set forth herein, we affirm the PCRA court’s

order.

       A prior panel of this Court provided the following summary of the facts

and procedural history:

             On July 2, 2006, Detective Edward Fallert, Detective
             Mark Goob, and Sergeant Jason Snyder of the
             Pittsburgh Police were patrolling Creswell Street, in
             Pittsburgh, in an unmarked car and in an undercover
             capacity. At approximately 12:27 a.m., they
             observed [Taylor] and another man sitting alone on
             a wall; [Taylor] was holding a potato chip bag.
             (Notes of testimony, 2/24–25/10 at 110.) As the


1
    42 Pa.C.S.A. §§ 9541-46.
J-S05011-15


          officers approached, [Taylor] crumpled the bag and
          put it down to his side. [Taylor] then tossed the bag
          onto the ground. (Id. at 112.) At this point, the
          officers, having viewed what just transpired, got out
          of their vehicle and identified themselves as police
          officers.

          Detective Fallert testified that based on his training
          and experience, he was aware that drug dealers
          sometimes conceal drugs in potato chip bags or iced
          tea cartons. (Id. at 18.) They typically hide them at
          a nearby location and retrieve them when they need
          to make a sale. Detective Fallert picked up the
          potato chip bag and discovered that it contained 68
          bags of crack cocaine and 55 bags of heroin. (Id. at
          21, 38.) The chip bag also contained a bag of rice
          which, Detective Fallert explained, is commonly used
          to absorb water to prevent heroin from getting wet.
          (Id. at 22.) According to Detective Fallert, the
          packaging of the drugs was consistent with drugs
          that are packaged for sale. (Id. at 42–43.) Thus,
          based on his training and experience, he believed
          the potato chip bag contained something illegal
          based on “[t]he way [Taylor] acted with it.” (Id. at
          19.) At this point, [Taylor] was placed under arrest.
          (Id. at 23.) A search of [Taylor’s] person revealed
          $127 and a cell phone; no paraphernalia was
          recovered. (Id. at 24.) The Commonwealth also
          presented the expert testimony of Detective Anthony
          Scarpine. Detective Scarpine testified that a
          hypothetical set of facts, identical to those recited
          above, led him to conclude that the drugs were
          packaged and possessed with intent to sell them.
          (Id. at 150, 152–153, 159.)

          [Taylor] testified at trial and stated that Ernest
          Turner [(“Turner”)] handed him the potato chip bag
          as they were sitting on the wall. (Id. at 165–166.)
          [Taylor] looked inside the bag and observed the
          drugs. (Id. at 166.) [Taylor] explained that he did
          not want the bag and only held it for a few seconds
          before the police apprehended him. (Id. at 166–




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             168.) [Taylor] averred that he did not intend to take
             the drugs or to sell the drugs.

             Thereafter,    [Taylor]   was    convicted    of    the
             aforementioned charges. On May 19, 2010, [Taylor]
             was sentenced to a term of imprisonment of not less
             than three nor more than six years for the conviction
             of possession with intent to deliver heroin, and a
             consecutive sentence of five to ten years'
             imprisonment for the conviction of intent to deliver
             cocaine; the simple possession convictions merged
             for sentencing purposes. Post-sentence motions were
             filed on June 1, 2010 and denied by the trial court on
             July 8, 2010. This appeal followed, and the trial court
             issued on [sic] opinion on January 19, 2011.

Commonwealth v. Taylor, 33 A.3d 1283, 1284-85 (Pa. Super. 2011).

     Finding no basis upon which to reverse, this Court affirmed Taylor’s

judgment of sentence.       Id. at 1289.    On January 18, 2012, Taylor filed a

petition for allowance of appeal to our Supreme Court, which denied the

petition on June 14, 2012.

     On March 8, 2013, Taylor filed a pro se petition for relief pursuant to

the PCRA and a memorandum in support thereof. The PCRA court appointed

Christopher Urbano (“Attorney Urbano”) as counsel to assist Taylor with

filing an amended PCRA petition. On June 28, 2013, Attorney Urbano filed a

“no-merit”   letter   and   petition   to   withdraw   as   counsel   pursuant   to

Pennsylvania v. Finley, 481 U.S. 551 (1987), and Commonwealth v.

Turner, 544 A.2d 927 (Pa. 1988).            The PCRA court held a hearing on

December 5, 2013.       At the conclusion of the hearing, the PCRA court

granted Attorney Urbano’s motion for leave to withdraw and denied Taylor’s



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PCRA petition. Taylor filed a timely notice of appeal and concise statement

of matters complained of on appeal pursuant to Rule 1925(b) of the

Pennsylvania Rules of Appellate Procedure to this Court on January 8, 2014.2

On appeal, Taylor raises the following issues for our review:

            (1) Did the PCRA court commit reversible error in
            denying [Taylor] PCRA relief on clear claims of trial
            counsel’s ineffective assistance during pre-trial and
            trial[]?

            (2) Did the PCRA court commit reversible error in
            not finding PCRA counsel rendered ineffective
            assistance for failing to present appellant‘s claim of
            discretionary aspects of sentence grounded on new
            case law that overruled prior commonwealth case?

Taylor’s Brief at 4.

      Our standard of review of an order denying PCRA relief is whether the

record supports the PCRA court's findings of fact, and whether the PCRA

court's determination is free of legal error.   Commonwealth v. Phillips,

31 A.3d 317, 319 (Pa. Super. 2011) (citing Commonwealth v. Berry,

877 A.2d 479, 482 (Pa. Super. 2005)), appeal denied, 42 A.3d 1059 (Pa.




2
  We note that Taylor’s notice of appeal was not docketed until January 8,
2014, and therefore, would appear to be untimely. However, “the prisoner
mailbox rule provides that a pro se prisoner’s document is deemed filed on
the date he delivers it to prison authorities for mailing.” Commonwealth v.
Chambers, 35 A.3d 34, 38 (Pa. Super. 2011) (citing Commonwealth v.
Jones, 700 A.2d 423, 425 (Pa. 1997)). In this case, Taylor’s appeal is
dated December 27, 2013 and the envelope in which Taylor mailed his
appeal to the Allegheny County clerk of courts is postmarked December 31,
2013.    Accordingly, we conclude that Taylor delivered his appeal on
December 31, 2013, which complies with the timeliness requirement.


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2012). A PCRA petitioner must establish the claim by a preponderance of

the evidence. Commonwealth v. Gibson, 925 A.2d 167, 169 (Pa. 2007).

      For his first issue on appeal, Taylor alleges that trial counsel, Giuseppe

Rosselli (“Attorney Rosselli”) provided ineffective assistance.    To this end,

Taylor presents three sub-issues for our review: whether Attorney Rosselli

(1) failed “to conduct meaningful pre-trial investigation into co-defendant []

Turner’s willingness to accept full responsibility for the sole possession of the

[d]rugs”; (2) inadequately prepared Taylor to testify at the suppression

hearing; and (3) provided ineffective assistance by stipulating to the use of

the testimony at the suppression hearing for use at trial. Id. at 7-13.3

      “Our longstanding test for ineffective assistance of counsel derives

from the standard set by the United States Supreme Court in Strickland v.

Washington, 466 U.S. 668 (1984).” Commonwealth v. Clark, 961 A.2d

80, 85 (Pa. 2008). The test for ineffective assistance of counsel requires the

petitioner to meet a three-prong test: (1) underlying the petitioner’s

allegation of ineffectiveness, there is a claim of arguable merit; (2)

petitioner’s counsel had no reasonable strategic basis for proceeding as he

did; and (3) the petitioner was prejudiced by counsel’s ineffectiveness. Id.


3
   Taylor also states in his brief that Attorney Rosselli provided ineffective
assistance by failing to file a motion in limine to exclude the drugs from use
at trial and by failing to conduct a colloquy to ensure that he knew the
benefits of a jury trial. Taylor’s Brief at 10-12. We observe, however, that
Taylor raises these issues for the first time on appeal, and therefore, the
issues are waived. See Pa.R.A.P. 302(a) (“Issues not raised in the lower
court are waived and cannot be raised for the first time on appeal.”).


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Failure to meet any one of the three prongs is fatal to petitioner’s claim of

ineffectiveness. Id.

      First, Taylor argues that Attorney Rosselli failed to conduct a

meaningful investigation into Turner’s willingness to accept full responsibility

for possessing the drugs.      Id. at 7.    The PCRA court determined that

Attorney Rosselli did not render ineffective assistance of counsel because he

could not ethically contact Turner without contacting his counsel first, he

determined that Turner would not be a beneficial witness because Taylor

would still be liable under the concept of constructive possession, and he did

not have knowledge that Turner was willing to testify on behalf of the

defense.      PCRA Court Opinion, 7/19/14, at 5.      The PCRA court further

concluded that the outcome of the trial would not have changed if Turner

had testified because “the evidence was clearly sufficient to convict

[Taylor].” Id. at 5-6.

      After reviewing the record, we conclude that the record supports the

PCRA court’s conclusion that Attorney Rosselli did not render ineffective

assistance.     In reaching our conclusion, we find the third prong of the

Strickland test to be dispositive.

              To satisfy the prejudice prong of [the Strickland]
              test when raising a claim of ineffectiveness for the
              failure to call a potential witness at trial, our
              Supreme Court has instructed that the PCRA
              petitioner must establish that: (1) the witness
              existed; (2) the witness was available to testify for
              the defense; (3) counsel knew, or should have



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              known, of the existence of the witness; (4) the
              witness was willing to testify for the defense; and (5)
              the absence of the testimony of the witness was so
              prejudicial as to have denied the defendant a fair
              trial.

Commonwealth v. Wantz, 84 A.3d 324, 331 (Pa. Super. 2014) (citing

Commonwealth v. Sneed, 45 A.3d 1096, 1108-09 (Pa. 2012)).

      In this case, Taylor failed to establish that Turner was available or

willing to testify for the defense. Taylor did not call Turner to testify at the

PCRA hearing to establish that Turner would have testified on behalf of the

defense at Taylor’s trial. Moreover, Taylor failed to provide the PCRA court

with an affidavit from Turner indicating that he would have testified at

Taylor’s trial. This Court has held that “we will not grant relief based on an

allegation that a certain witness may have testified in the absence of an

affidavit to show that the witness would, in fact, testify[.]” Commonwealth

v. Hall, 867 A.2d 619, 631 (Pa. Super. 2005) (quoting Commonwealth v.

Days, 718 A.2d 797, 803 (Pa. Super. 1998)). Accordingly, we conclude that

Taylor failed to prove that Turner was willing to testify, and consequently,

failed to satisfy the prejudice prong of the Strickland test.4

      Next,    Taylor   argues   that   Attorney   Rosselli   provided   ineffective

assistance by inadequately preparing him to testify at the suppression


4
  Although the basis of our decision differs from that of the PCRA court, “if
the court’s decision is correct, we can affirm on any ground.”
Commonwealth v. Price, 876 A.2d 988, 994 (Pa. Super. 2005) (quoting
Commonwealth v. Miller, 787 A.2d 1036, 1038 (Pa. Super. 2001), appeal
denied, 798 A.2d 1288 (Pa. 2002)).


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hearing. Taylor’s Brief at 11. Taylor states that he “was not prepared for

the questioning of the District Attorney who elicited information that made it

appear that [he] was in possession of the [c]ontrolled substances and

allowed for the improper inference to be made[.]” Id.

      At the PCRA hearing, Attorney Rosselli testified that he personally

prepared Taylor for trial and believed that he was prepared. N.T., 12/5/13,

at 13. The PCRA court determined that Attorney Rosselli “credibly testified

that he, indeed, prepared [Taylor] to testify at the suppression hearing.” It

is well established that “[t]he Commonwealth and this Court are bound by

the   preliminary   credibility     determinations   of   the   PCRA    court.”

Commonwealth v. Stewart, 84 A.3d 701, 711 (Pa. Super. 2013). Thus,

absent any evidence establishing the contrary to be true, we conclude that

the record supports the PCRA court’s conclusion that Attorney Rosselli

adequately prepared Taylor for trial.

      Third, Taylor contends that Attorney Rosselli erred by stipulating to the

use of the testimony at the suppression hearing for use at trial.      Taylor’s

Brief at 12. Taylor states that Attorney Rosselli’s stipulation “caused unfair

prejudice to [] Taylor as he was unable to confront and cross examine

[Turner] … about the statements made to [p]olice and utilized in the [t]rial

against [] Taylor.” Id. at 12-13.

      At the PCRA hearing, Attorney Rosselli testified that he stipulated to

the use of the testimony of the detectives from the suppression hearing at



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trial because the suppression hearing was held on the same day as the non-

jury trial. N.T., 12/5/13, at 15. Attorney Rosselli stated that “[b]ecause it

was a non-jury trial[,] I felt most of the testimony, if not all of it, would have

just been repetitive.” Id. at 13. Attorney Rosselli provided that he did not

see any need to recall the police officers that testified during the suppression

hearing because he “believe[d] the testimony from the suppression hearing

covered everything that [he] wanted to address on cross examination.” Id.

at 14. Finally, Attorney Rosselli stated that it was his “common practice to

stipulate to the Commonwealth’s testimony from a suppression hearing

when [he proceeded] non-jury[.]” Id. at 16.

      The PCRA court concluded that stipulating to the use of testimony is a

common practice and that “[t]he record is devoid of any prejudice to

[Taylor].”    PCRA Court Opinion, 7/19/14, at 7.      We agree with the PCRA

court that the stipulation did not prejudice Taylor. Attorney Rosselli had the

opportunity to cross-examine the police officers during the suppression

hearing.     See N.T., 2/24/10, at 26-40, 52-64, 70-73.       Moreover, Taylor’s

claim that “he was unable to confront and cross examine [Turner] … about

the statements made to [p]olice and utilized in the [t]rial against []

Taylor[,]” is without merit, as we previously determined that he failed to

establish that Turner was willing to testify.      We therefore conclude that

Taylor has not established prejudice sufficient to satisfy the Strickland test




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for ineffective assistance of counsel.    Accordingly, we discern no abuse of

discretion. Taylor is not entitled to relief on his first issue on appeal.

      For his second issue on appeal, Taylor claims that Attorney Urbano

provided ineffective assistance “for failing to raise the claim of [] Taylor’s

mandatory minimum sentence being unconstitutional, illegal and void[.]”

Taylor’s Brief at 14. Specifically, Taylor asserts that his Sixth Amendment

right “to have a jury determine any aggravating or mitigating circumstance

that would change the penalty that can be imposed upon him by statute”

was violated by the trial court’s imposition of a mandatory minimum

sentence.   Id. at 16.    In support of his assertion, Taylor relies upon the

United States Supreme Court decisions in Apprendi v. New Jersey, 530

U.S. 466 (2004), and Alleyne v. United States, 133 S.Ct. 2151 (2013).

Taylor argues that consistent with these decisions, his counsel provided

ineffective assistance by failing to challenge the constitutionality of his

sentence, and furthermore, that his sentence should be vacated.

      In Apprendi, the United States Supreme Court concluded that “[i]t is

unconstitutional for a legislature to remove from the jury the assessment of

facts that increase the prescribed range of penalties to which a criminal

defendant is exposed.” Apprendi, 530 U.S. at 490. The Court extended its

rationale in Apprendi to its decision in Alleyne, holding that “Apprendi’s

definition of ‘elements’ necessarily includes not only facts that increase the

ceiling, but also those that increase the floor.” Alleyne, 133 S.Ct. at 2158.



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The Court explained, “Both kinds of facts alter the prescribed range of

sentences to which a defendant is exposed and do so in a manner that

aggravates the punishment.     Facts that increase the mandatory minimum

sentence are therefore elements and must be submitted to the jury and

found beyond a reasonable doubt.” Id.

     The PCRA court did not address the merits of this claim, finding the

issue to be waived for failure to raise it in the lower court.   PCRA Court

Opinion, 7/19/14, at 7.    A recent panel of this Court recently concluded,

however, “that a challenge to a sentence premised upon Alleyne []

implicates the legality of the sentence and cannot be waived on appeal.”

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

Thus, we disagree with the PCRA court’s determination that Taylor waived

the issue on appeal.

     After reviewing the record and applicable case law, we nevertheless

conclude that Taylor is not entitled to relief under Alleyne.        This Court

recently determined that

           [e]ven assuming that Alleyne did announce a new
           constitutional right, neither our Supreme Court, nor
           the United States Supreme Court has held that
           Alleyne is to be applied retroactively to cases in
           which the judgment of sentence had become final.
           … This Court has recognized that a new rule of
           constitutional law is applied retroactively to cases on
           collateral review only if the United States Supreme
           Court or our Supreme Court holds it to be
           retroactively applicable to those cases.




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Commonwealth v. Miller, 102 A.3d 988, 995 (Pa. Super. 2014) (citations

omitted).

         In this case, Taylor’s judgment of sentence became final on September

14, 2012, ninety days after our Supreme Court denied his petition for

allowance of appeal.5      The Supreme Court did not issue its decision in

Alleyne until June 17, 2013. As provided by Miller, in order to retroactively

apply the holding in Alleyne to Taylor’s judgment of sentence, the United

States Supreme Court or our Supreme Court must have held that the

holding was retroactively applicable to cases on collateral review.    Miller,

102 A.2d at 995. As neither supreme court has done so, we conclude that

Taylor is not entitled to relief.   Taylor’s second issue on appeal therefore

fails.

         Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 2/18/2015




5
  See Commonwealth v. Feliciano, 69 A.3d 1270, 1275 (Pa. Super. 2013)
(“under the PCRA, petitioner’s judgment of sentence becomes final ninety
days after our Supreme Court rejects his or her petition for allowance of
appeal since petitioner had ninety additional days to seek review with the
United States Supreme Court.”).


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