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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


COMMONWEALTH OF PENNSYLVANIA,            :     IN THE SUPERIOR COURT OF
                                         :          PENNSYLVANIA
                                         :
                  v.                     :
                                         :
DOMENIQUE JAMES LEWIS,                   :
                                         :
                        Appellant        :      No. 1017 WDA 2015


                   Appeal from the PCRA Order June 4, 2015
              In the Court of Common Pleas of Allegheny County
              Criminal Division No(s).: CP-02-CR-0008184-2010

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

MEMORANDUM BY DUBOW, J.:                           FILED MARCH 17, 2016

      Appellant, Domenique James Lewis, appeals pro se from the order

entered on June 4, 2015, dismissing his first petition filed pursuant to the

Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. After careful

review, we reverse the order of the PCRA court, affirm Appellant’s

convictions, vacate the judgment of sentence, and remand for resentencing

consistent with Alleyne v. United States, __ U.S. __, 133 S.Ct. 2151, 186

L.Ed.2d 314 (2013).

      The facts as stated in our memorandum opinion on direct appeal are

as follows:

      At trial, Megan [Wilsher] testified that on February 26, 2010,
      while Lewis was sitting in her living room, he stood up, pulled
      out a gun, smiled at her, and fired at her. [Wilsher] testified
      Lewis shot her in the face, and after she fell, he shot her again.
      Wilsher lost her right eye as a result of the shooting. See N.T.,
      6/22/2012, at 77, 80–81. In corroboration of this testimony, the
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        Commonwealth presented evidence that Lewis’s fingerprints
        were found on a Coke can recovered from the scene. See id. at
        196–197.

        Furthermore, the Commonwealth, through the testimony of
        Detective Scott Evans, introduced a recorded statement made by
        Lewis to police, in which he admitted that on February 26, 2010,
        he had engaged in a struggle with Brett Quinn over a gun that
        discharged in the living room; he took the gun and fired at Quinn
        multiple times, chased him and took his chain and watch;
        returned to the house where he took $400 to $500 dollars from
        Wilsher’s purse, as well as her cellular phone; and then disposed
        of the gun.         See N.T., 6/23/2012, at 30–46.            The
        Commonwealth, through Detective Evans, also introduced
        documentation to show Lewis did not possess a permit to carry a
        gun. Id. at 46. Finally, outside the presence of the jury, the
        Commonwealth offered into evidence the certification from the
        juvenile court for Lewis’s robbery conviction. Id. at 87.

Commonwealth v. Lewis, No. 358 WDA 2012 (filed April 29, 2013).

        A jury convicted Appellant of Criminal Attempt - Murder (two counts),

Aggravated Assault (two counts), Robbery (two counts), and Carrying a

Firearm Without a License.1 In a bifurcated waiver trial, the trial court found

Appellant guilty of Possession of Firearms Prohibited.2     On September 8,

2011, the trial court sentenced Appellant to an aggregate term of 33½ to 67

years of imprisonment.3


1
  18 Pa.C.S. §§ 901(a) and 2502; 18 Pa.C.S. § 2702(a)(1); 18 Pa.C.S. §
3701(a)(1)(i); and 18 Pa.C.S. § 6106(a)(1), respectively.
2
    18 Pa.C.S. § 6105(a)(1).
3
 Specifically, the trial court sentenced Appellant to a term of twenty to forty
years’ incarceration for the first Attempted Murder conviction and a
consecutive term of five to ten years’ incarceration for the second Attempted
Murder conviction. The trial court imposed a consecutive term of five to ten
years’ incarceration for the first Robbery conviction, and a consecutive term



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        Appellant filed a direct appeal. In an unpublished memorandum, this

Court affirmed Appellant’s judgment of sentence on April 29, 2013.

Commonwealth v. Lewis, No. 358 WDA 2012 (filed April 29, 2013). Our

Supreme Court denied Appellant’s Petition for Allowance of Appeal on

September 17, 2013. Commonwealth v. Lewis, 74 A.3d 1030 (Pa.Super.

2013).    Appellant’s judgment of sentence became final on December 17,

2013.

        On August 4, 2014, Appellant filed a timely pro se PCRA petition and

the PCRA court appointed counsel.            On February 17, 2015, appointed

counsel filed a petition to withdraw and a no-merit letter pursuant to

Commonwealth           v.   Turner,    544    A.2d   927   (Pa.   1988),   and

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

        On February 18, 2015, the PCRA court filed a notice of its intent to

dismiss Appellant’s PCRA petition without a hearing pursuant to Pa.R.Crim.P.

907.     On June 4, 2015, the PCRA court denied the petition and granted

counsel’s petition to withdraw.       Appellant filed a timely pro se notice of

appeal on June 25, 2015. Both Appellant and the trial court complied with

Pa.R.A.P. 1925.

        Appellant raised four issues on appeal, which we have reordered for

ease of disposition:

of three and one-half to seven years’ incarceration for the Carrying a
Firearm Without a License conviction. The trial court imposed a finding of
guilt without further penalty for the remaining convictions.




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           a. Abuse of Discretion: Whether trial court abused its
           discretion when not granting appellant a mistrial due
           to the showing of graphic pictures of the victim
           thereby causing an inflammatory reaction from the
           jury as well as the suggestive nature of the victim's
           identification of the appellant.

           b. Ineffective Assistance of Counsel: Whether trial
           counsel for appellant was ineffective for failure to
           object to or challenge the suggestive nature of
           victim, Wilsher’s identification of the appellant,
           thereby violating Commonwealth v. Pursell, 724 A.2d
           293, 304 (1999), Strickland v. Washington, 104
           S.Ct. 2062(1984) and U.S.C.A. Const. Amend. 6.

           c. Illegality of Sentence: Whether trial court erred in
           sentencing appellant to an illegal sentence in
           violation of U.S.C.A. Cont. Amend. 5, 8, 14 and Pa.
           Const. Art. 1 §10, thereby giving appellant the right
           to raise such claim by way of sentencing appellant
           solely on the severity of crime.

           d. Abuse of Discretion Based on Illegality of
           Sentence: Whether Trial Court erred in respect to
           the discretionary aspect of appellant’s sentence in
           accordance to 42 Pa. Cons. Stat. § 9721, 9725, 204
           Pa. Code § 303.2 et seq., and 42 Pa. Cons. Stat. §
           9721(b) as appellant contends that he was
           prejudiced by there being substantial question that
           the sentence imposed was not appropriate under the
           sentencing code, thereby, violating U.S.C.A. 5 and
           14 and Pa. Const. Art 1 § 10, and Commonwealth v.
           Urrutia, 653 A.2d 706, 710 (Pa. Super. 1995).

Appellant’s Brief at 3-4 (boldface removed).

     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



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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).

      A PCRA petitioner is not automatically entitled to an evidentiary

hearing. Commonwealth v. Miller, 102 A.3d 988, 992 (Pa.Super. 2014).

The PCRA court may decline to hold a hearing if the petitioner’s claim is

patently frivolous and has no support either in the record or in other

evidence.   Id.   The reviewing court on appeal must examine each issue

raised in the PCRA petition in light of the record before it in order to

determine if the PCRA court erred in its determination that there were no

genuine issues of material fact in controversy and in denying relief without

conducting an evidentiary hearing.      Id.; see also Commonwealth v.

Roney, 79 A.3d 595, 604 (Pa. 2013) (applying abuse of discretion standard

to review of PCRA court’s denial of petition without a hearing).

      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). Appellant

must also establish that the issues raised in the PCRA petition have not been

previously litigated or waived.   42 Pa.C.S. § 9543(a)(3).    An allegation of

error “is waived if the petitioner could have raised it but failed to do so




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before trial, at trial, during unitary review, on appeal or in a prior state

postconviction proceeding.” 42 Pa.C.S. § 9544(b).

      In his first issue, Appellant argues that the trial court abused its

discretion by denying his request for a mistrial based on allegedly

inflammatory graphic pictures of the victim and the suggestive nature of the

victim’s identification. The PCRA does not recognize such a claim. See 42

Pa.C.S. § 9543(a)(2). As the trial court properly found, this is an issue for

direct appeal. In fact, Appellant previously raised this issue on direct appeal

and this Court concluded that it was meritless. Commonwealth v. Lewis,

No. 358 WDA 2012 (filed April 29, 2013); see 42 Pa.C.S. § 9543(a)(3)

(stating allegation of error previously litigated not eligible for PCRA relief).

As a result, Appellant’s first claim on appeal must fail.

      In his second issue on appeal, Appellant argues that his trial counsel

rendered ineffective assistance in failing to challenge the suggestive nature

of the victims’ identification.4 This claim is also without merit.

      The   law   presumes     counsel   has   rendered     effective   assistance.

Commonwealth v. Rivera, 10 A.3d 1276, 1279 (Pa.Super. 2010).                   The

burden of demonstrating ineffectiveness rests on Appellant. 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

4
  Appellant argues here for the first time that his trial counsel was ineffective
for failing to request a Kloiber instruction. Since Appellant failed to include
this claim in his 1925 Statement of Errors it is waived.



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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 proceedings would have been different. Commonwealth

v. Fulton, 830 A.2d 567, 572 (Pa. 2003).

      First, Appellant must meet the “arguable merit” prong. “The threshold

inquiry in ineffectiveness claims is whether the issue/argument/tactic which

counsel has foregone and which forms the basis for the assertion of

ineffectiveness is of arguable merit[.]”   Commonwealth v. Pierce, 645

A.2d 189, 194 (Pa. 1994) (internal citation omitted).    “Counsel cannot be

found ineffective for failing to pursue a baseless or meritless claim.”

Commonwealth v. Poplawski, 852 A.2d 323, 327 (Pa.Super. 2004)

(internal citation omitted).

      Second, Appellant must meet the “no reasonable basis” prong.       We

apply the “reasonable basis” test to determine whether counsel’s chosen

course was designed to effectuate his client’s interests.   Pierce, supra at

194-95. “If we conclude that the particular course chosen by counsel had

some reasonable basis, our inquiry ceases and counsel’s assistance is

deemed effective.” Id. (internal citation omitted)

      Third, Appellant must meet the “prejudice” prong.         “Prejudice is

established when [a defendant] demonstrates that counsel’s chosen course

of action had an adverse effect on the outcome of the proceedings.”



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Commonwealth v. Chambers, 807 A.2d 872, 883 (Pa. 2002) (quoting

Commonwealth v. Balodis, 747 A.2d 341, 343-44 (Pa. 2000)).                  “The

defendant must show that there is a reasonable probability that, but for

counsel’s unprofessional errors, the result of the proceeding would have

been different.”   Id. (quoting Strickland v. Washington, 466 U.S. 668,

694 (1984)).       “A reasonable probability is a probability sufficient to

undermine confidence in the outcome.” Id. “A criminal defendant alleging

prejudice must show that counsel’s errors were so serious as to deprive the

defendant of a fair trial, a trial whose result is reliable.”      Id. (quoting

Commonwealth v. Kimball, 724 A.2d 326, 331 (Pa. 1999)).

      With respect to the identifications in this case, both victims initially

identified another individual, Josh Stone, as the shooter. Both victims later

identified Appellant as the shooter. At trial, both victims testified about their

initial misidentifications of Stone.

      Contrary to Appellant’s argument, trial counsel did challenge the

nature of the victims’ identifications throughout the trial.    Appellant’s trial

court addressed and challenged the identifications during her opening

statements. N.T. Trial, 6/22/11, at 39-40.         She also vigorously cross-

examined the two victims regarding their identifications, the procedures

used, and their mis-identifications of other individuals. N.T. Trial, 6/22/11,

at 100-19, 150-59.      In closing arguments, Appellant’s trial counsel again

challenged the identifications, attacked the victims’ credibility, and advanced



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the ultimately uncredited theory of misidentification. N.T. Trial, 6/23/11, at

145-60.    Because trial counsel did challenge the identification evidence,

Appellant’s claim of ineffectiveness for failing to challenge the evidence lacks

arguable merit. See Pierce, supra at 194.

      In his third and fourth issues on appeal, Appellant challenges the

discretionary aspects and the legality of his sentence. We need not address

his specific arguments because we are required to vacate Appellant’s

judgment    of   sentence   on   grounds   not   raised   by   Appellant.   See

Commonwealth v. Watley, 81 A.3d 108, 118 (Pa.Super. 2013) (en banc)

(“Legality of sentence questions are not waivable and may be raised sua

sponte by this Court.”).

      The certified record indicates that in 2011, the court imposed

mandatory minimum sentences pursuant to 42 Pa.C.S. § 9712 for each of

Appellant’s Attempted Murder and Robbery convictions.5 This Court affirmed

the judgment of sentence on direct appeal.       While Appellant’s petition for

allowance of appeal was pending in our Supreme Court, the United States

Supreme Court decided Alleyne v. United States, __ U.S. __, 133 S.Ct.

2151, 186 L.Ed.2d 314 (2013), holding that any fact increasing the

mandatory minimum sentence for a crime is considered an element of the

5
  Although the record does not contain a sentencing transcript, the
sentencing court’s forms indicate that it relied on Section 9712. We rely on
these facts from the certified record in reaching our conclusion that the trial
court relied on Section 9712 at Appellant’s sentencing.




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crime to be submitted to the fact-finder and found beyond a reasonable

doubt.

      In Commonwealth v. Newman, 99 A.3d 86, 98 (Pa.Super. 2014)

(en banc), appeal denied, 121 A.3d 496 (Pa. 2015), this Court held that

pursuant to Alleyne, 42 Pa.C.S. § 9712.1 is no longer constitutional.    In

Commonwealth v. Riggle, 119 A.3d 1058 (Pa.Super. 2015), this Court

declined to give Alleyne retroactive effect to cases on timely collateral

review when the defendant’s judgment of sentence had been finalized before

Alleyne was decided.       In Commonwealth v. Miller, 102 A.3d 988

(Pa.Super. 2014), this Court observed that Alleyne does not invalidate a

mandatory minimum sentence when presented in an untimely PCRA petition.

      Because Appellant’s judgment of sentence was not yet final when

Alleyne was decided and because he filed a timely PCRA petition, the

instant case is distinguishable from Riggle and Miller. Accordingly, because

the trial court sentenced Appellant to a mandatory minimum under Section

9712, which has been deemed unconstitutional, we must vacate his

judgment of sentence and remand for resentencing, without consideration of

the mandatory minimum sentence.

      Appellant’s convictions for Attempted Murder, Aggravated Assault,

Robbery, Carrying a Firearm Without a License, and Possession of Firearms

Prohibited affirmed.   Judgment of sentence vacated.    Case remanded for

resentencing only. Jurisdiction relinquished.



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 3/17/2016




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