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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

JAFA LEROY MCALLISTER

                            Appellant                No. 2419 EDA 2014


                  Appeal from the PCRA Order August 5, 2014
                In the Court of Common Pleas of Monroe County
              Criminal Division at No(s): CP-45-CR-0000368-2011


BEFORE: STABILE, J., JENKINS, J., and MUSMANNO, J.

MEMORANDUM BY JENKINS, J.:                           FILED APRIL 28, 2015

        Jafa McAllister appeals from an order denying his petition for relief

under the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. § 9541 et seq. We

affirm.

        A jury found McAllister guilty of persons not to possess firearms1 and

possession of a firearm with an altered manufacturer number. 2          These

charges were the result of a traffic stop in which McAllister was a passenger

in a motor vehicle owned and operated by his sister. During the stop she

gave permission for the search of her car.        Police officers recovered a

shopping bag from the trunk which contained McAllister’s clothing and the

____________________________________________


1
    18 Pa.C.S. § 6105.
2
    18 Pa.C.S. § 6110.2.
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weapon which formed the basis for the firearm charges.          The trial court

sentenced McAllister to an aggregate term of 6½-13 years’ imprisonment.

He did not file a direct appeal.

      McAllister filed a timely PCRA petition alleging several claims of

ineffective assistance of counsel. Following an evidentiary hearing, the PCRA

court denied his petition. McAllister filed a timely appeal, and both McAllister

and the PCRA court complied with Pa.R.A.P. 1925.

      McAllister raises three issues in this appeal:

            A. DID THE PCRA COURT ERR AND ABUSE ITS
            DISCRETION BY NOT ALLOWING THE APPELLANT TO
            FILE A NUNC PRO TUNC APPEAL TO THE
            PENNSYLVANIA SUPERIOR COURT WHERE THE
            RECORD DEMONSTRATED THAT THE APPELLANT
            WAS DENIED HIS RIGHT TO APPELLATE REVIEW AS
            A RESULT OF COUNSEL NOT FILING AN APPEAL AS
            APPELLANT HAD REQUESTED?

            B. DID THE PCRA COURT ERR AND ABUSE ITS
            DISCRETION BY NOT ALLOWING THE APPELLANT TO
            FILE A NUNC PRO TUNC APPEAL TO THE
            PENNSYLVANIA SUPERIOR COURT WHERE THE
            RECORD DEMONSTRATED THAT THE APPELLANT
            WAS DENIED HIS RIGHT TO APPELLATE REVIEW AS
            A RESULT OF COUNSEL NOT PURSING AN APPEAL
            DESPITE SEVERAL IMPORTANT QUESTIONS RIPE
            FOR SUCH REVIEW?

            C. DID THE PCRA COURT ERR AND ABUSE ITS
            DISCRETION BY FAILING TO FIND TRIAL COUNSEL
            INEFFECTIVE AND ORDERING A NEW TRIAL BASED
            ON EVIDENCE THAT TRIAL COUNSEL FAILED TO FILE
            SUPPRESSION    MOTIONS    DESPITE    CLEARLY
            APPROPRIATE REASONS TO DO SO, FAILED TO
            PROVIDE THE APPELLANT WITH COPIES OF THE
            DISCOVERY USED AGAINST HIM AND FAILED TO


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            SIMILARLY ACT TO THE            BEST   INTERESTS      OF
            APPELLANT AT TRIAL?

Brief for Appellant, p. 4.

      This Court reviews the PCRA court’s findings of fact to determine

whether they are supported by the record, and reviews its conclusions of law

to determine whether they are free from legal error. Commonwealth v.

Charleston, 94 A.3d 1012, 1019 (Pa.Super.2014). Our 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 trial level. Id.

      To obtain relief on a claim of ineffective assistance of counsel, the

PCRA petitioner must satisfy the performance and prejudice test set forth in

Strickland v. Washington, 466 U.S. 668, 687 (1984).             Specifically, the

petitioner must establish that: (1) the underlying claim has arguable merit;

(2) no reasonable basis existed for counsel’s actions or failure to act; and

(3) the petitioner suffered prejudice as a result of counsel’s error, with

prejudice measured by whether there is a reasonable probability that the

result of the proceeding would have been different.        Commonwealth v.

Pierce, 527 A.2d 973, 975 (Pa.1987).           Counsel is presumed effective.

Charleston, 94 A.3d at 1019.      A court need not analyze the elements of an

ineffectiveness claim in any particular order of priority; if a claim fails any

necessary element of the Strickland test, the court may proceed to that

element first. Commonwealth v. Albrecht, 720 A.2d 693, 701 (Pa.1998).




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Additionally, counsel cannot be deemed ineffective for failing to raise a

meritless claim. Commonwealth v. Jones, 912 A.2d 268, 278 (Pa.2006).

      We review McAllister’s first and second arguments together, because

they raise essentially the same issue, viz., trial counsel was ineffective for

disregarding McAllister’s request to file a direct appeal.      McAllister claims

that trial counsel’s failure to file a direct appeal prejudiced him, because

counsel could have raised a meritorious issue on direct appeal concerning a

bag that the Commonwealth introduced into evidence during trial. McAllister

argues:

              This bag was not the actual one found in the car in
              which [McAllister] was driving, and which allegedly
              contained the alleged weapon for which [McAllister]
              was convicted. While the trial court did instruct the
              jury regarding this, the presence of such a bag,
              which [McAllister] alleges was much larger and
              bulkier than the actual bag, was arguably prejudicial
              as it gave the jury an inaccurate visual impression of
              the evidence. Thus, the jury could readily have
              drawn conclusions about the scene based on a piece
              of visual evidence that was not, in actuality, a part of
              the scene.

Brief For Appellant, pp. 9-10.        For several reasons, we disagree with

McAllister.

      Counsel has a constitutional duty to adequately consult with the

defendant as to the advantages and disadvantages of an appeal where there

is reason to believe either (1) that a rational defendant would want to appeal

(for example, because there are non-frivolous grounds for appeal), or (2)

that this particular defendant reasonably demonstrated to counsel that he

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was interested in appealing. Commonwealth v. Bath, 907 A.2d 619, 623

(Pa.Super.2006).    Where counsel adequately consults with the defendant

about an appeal, there is no prejudice and thus no ineffective assistance.

Commonwealth v. Touw, 781 A.2d 1250, 1254-55 (Pa.Super.2001). For

purposes of this test, counsel actually “consults” when he “advis[es] the

defendant about the advantages and disadvantages of taking an appeal, and

mak[es] a reasonable effort to discover the defendant’s wishes.”       Id. at

1254 (citing Roe v. Flores-Ortega, 528 U.S. 470, 478 (2000)).

        Here, the PCRA court concluded, and the record confirms, that trial

counsel discussed whether to file a direct appeal with McAllister, and that

McAllister agreed not to file an appeal. N.T. 7/21/14, p. 13 (testimony of

trial counsel). Trial counsel convinced McAllister that the bag issue had no

merit and was not worth appealing.       N.T., 7/21/14, p. 12 (trial counsel).

The PCRA court succinctly explained why the bag issue lacked merit:

             [McAllister’s] brief … merely suggests that a piece of
             demonstrative evidence used at trial, i.e., a bag,
             might have been confused with a piece of real
             physical evidence connected to [his] possession of
             the    firearms.     However,    [McAllister]   readily
             acknowledges that the trial court issued a cautionary
             instruction to the jury explaining how this was
             merely demonstrative evidence and not the actual
             bag. [McAllister] also fails to explain how this would
             have made any difference.

Memorandum In Support Of Order Denying PCRA Petition (“Memorandum”),

p. 7.    For these reasons, the PCRA court acted within its discretion in




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rejecting McAllister’s claim that trial counsel was ineffective for failing to file

a direct appeal.

      In his third and final issue, McAllister contends that trial counsel was

ineffective for failing to file a motion to suppress, failing to provide discovery

to him and failing to act in his best interests during trial. The PCRA court

concluded, and the record confirms, that McAllister failed to substantiate

these claims during the PCRA evidentiary hearing.

      Without specifying any particular discovery item, McCallister testified

that he would have felt “comfortable” had he received pretrial discovery and

“would have had more … knowledge and options” about how to proceed.

N.T., 7/21, 14, p. 25. We agree with the PCRA court that McCallister failed

to demonstrate prejudice due to trial counsel’s failure to provide him with

discovery:

             At most, [McAllister] testified at the hearing that a
             review of his discovery would have made ‘him better
             informed, allowed him to better judge whether to
             plead guilty and would have potentially allowed him
             to raise new objections. [McAllister] did not specify
             what those objections might be or their potential
             effect on the verdict. [McAllister]’s brief merely
             offers generalized propositions on how favorable it is
             to review discovery with one’s client prior to trial.
             While that may be so, [McAllister] is still required to
             show a prejudicial violation, not opine about best
             pre-trial practices. It is simply impossible for
             [McAllister] to meet his burden of proof in the
             complete absence of a factual basis.

Memorandum, p. 4.




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      Similarly, McCallister failed to demonstrate what motion to suppress

he would have filed or how it would have assisted his defense. The PCRA

court correctly observed: “The evidence for an underlying suppression claim

was not presented at the evidentiary hearing or attached to [McAllister’s]

PCRA Petition or brief. Neither has [he] even indicated the grounds for

granting suppression in any of his filings.” Thus, the PCRA court correctly

rejected this claim due to lack of arguable merit.

      Finally, McAllister’s boilerplate claim that counsel failed to act in his

best interests during trial is waived due his failure to develop this argument

during PCRA proceedings or in this appeal.       Commonwealth v. Rainey,

928   A.2d   215,   245   (Pa.2007)    (“boilerplate,   undeveloped   argument

respecting the ineffectiveness of all prior counsel is insufficient to establish

an entitlement to post-conviction relief”).

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/28/2015




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