J-S65043-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

KELVIN MANN

                            Appellant               No. 1184 EDA 2015


                   Appeal from the PCRA Order March 27, 2015
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0003908-2008
                                          CP-51-CR-0003913-2008
                                          CP-51-CR-0009993-2008


BEFORE: BENDER, P.J.E., SHOGAN, J., and JENKINS, J.

MEMORANDUM BY JENKINS, J.:                       FILED JANUARY 07, 2016

       Appellant Kelvin Mann appeals from the order of the Philadelphia

County Court of Common Pleas dismissing his petition filed pursuant to the

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

       On July 30, 2010, a jury found Appellant guilty of attempted murder,

carrying a firearm in public in Philadelphia, and firearms not to be carried

without a license,1 and the trial court found Appellant guilty of persons not

to possess or use firearms2 at CP-51-CR-0003908-2008.3 On November 22,
____________________________________________


1
    18 Pa.C.S. §§ 901(a), 6108, and 6106(a)(1), respectfully.
2
    18 Pa.C.S. § 6105(a)(1).
3
  A previous May 2009 trial resulted in a judgment of acquittal for
Appellant’s co-defendant and a mistrial for Appellant. Commonwealth v.
(Footnote Continued Next Page)
J-S65043-15



2010, the trial court sentenced Appellant to 18 to 40 years’ incarceration for

the attempted murder conviction. The trial court imposed no further penalty

for the remaining charges.

      On January 13, 2011, the trial court reinstated Appellant’s direct

appeal rights nunc pro tunc. Appellant filed a notice of appeal and, on March

12, 2012, this Court affirmed his judgment of sentence.       Appellant filed a

petition for allowance of appeal to the Supreme Court of Pennsylvania, which

was denied on February 27, 2013.

      On March 18, 2013, Appellant filed a timely PCRA petition. The trial

court appointed counsel, who filed a Turner/Finley4 no-merit letter.        On

February 20, 2015, the trial court issued a notice of intent to dismiss the

PCRA petition without a hearing pursuant to Pennsylvania Rule of Criminal

Procedure 907. On March 2, 2015, Appellant filed a response to the notice

of intent to dismiss. On March 27, 2015, the trial court dismissed the PCRA

petition. Appellant filed a timely notice of appeal. Both Appellant and the

trial court complied with Pennsylvania Rule of Appellate Procedure 1925.

      Appellant raises the following issues on appeal:

          A. Whether trial counsel was ineffective for acquiescing to
          the prior evidentiary rulings and failing to procure witness?
                       _______________________
(Footnote Continued)

Mann, 254 EDA 2011, at 10 (Pa.Super. filed Mar. 12, 2012) (unpublished
memorandum) (hereinafter “Direct Appeal Memorandum”).
4
  Commonwealth v. Turner, 544 A.2d 927 (Pa.1988)                           and
Commonwealth v. Finley, 550 A.2d 213 (Pa.Super.1998) (en banc).



                                            -2-
J-S65043-15


          B. Whether [appellate] counsel was ineffective for failing to
          frame the issues in a legally meaningful fashion?

          C. Whether the sentence imposed a deadly weapon
          enhancement in violation of Appellant’s right to due
          process?

          D. Whether PCRA counsel was ineffective for filing a no–
          merit letter when the pro se claims in fact possessed
          merit?

Appellant’s Brief at 3.5

       Our standard of review from the denial of post-conviction relief “is

limited to examining whether the PCRA court’s determination is supported by

the   evidence     of   record     and    whether   it   is   free   of   legal   error.”

Commonwealth v. Ousley, 21 A.3d 1238, 1242 (Pa.Super.2011) (citing

Commonwealth v. Morales, 701 A.2d 516, 520 (Pa.1997)).

       Appellant first maintains his trial counsel was ineffective for agreeing

that the evidentiary rulings of the first trial would apply to the July 2010 trial




____________________________________________


5
  Appellant also pled guilty at docket numbers CP-51-CR-0009993-2008 and
CP-51-CR-0003913-2008 to possession with intent to deliver a controlled
substance, 35 P.S. § 780-113(a)(30). He filed PCRA petitions at these
docket numbers, which the trial court denied in the same memorandum as
the PCRA petition filed at CP-51-CR-0003908-2008. Opinion, 3/27/2015.
Appellant raises in his appellate brief only the issues raised at CP-51-CR-
0003908-2008. Because Appellant provides no discussion of any issue
related to docket numbers CP-51-CR-0009993-2008 and CP-51-CR-
0003913-2008, he has waived the issues. Commonwealth v. Woodard, --
- A.3d ----, 2015 WL 7767271, at *22-23 (Pa.2015) (finding claim waived
where appellant “set forth no argument at all” on the issues in his appellate
brief.)




                                           -3-
J-S65043-15



and for failing to present “Oschino”6 as a trial witness.     Appellant’s Brief at

8-13.

        For ineffective assistance of counsel claims, the petitioner must

establish: “(1) his underlying claim is of arguable merit; (2) counsel had no

reasonable basis for his action or inaction; and (3) the petitioner suffered

actual prejudice as a result.” Commonwealth v. Spotz, 84 A.3d 294, 311

(Pa.2014) (quoting Commonwealth v. Ali, 10 A.3d 282, 291 (Pa.2010)).

“[C]ounsel is presumed to be effective and the burden of demonstrating

ineffectiveness rests on appellant.”           Ousley, 21 A.3d at 1244 (quoting

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

failure to prove any one of the three [ineffectiveness] prongs results in the

failure of petitioner’s claim.” Id. (quoting Rivera, 10 A.3d at 1279).

        Appellant first maintains that trial counsel should not have agreed that

the trial court was bound by the evidentiary rulings from the first trial.

Appellant’s Brief at 10-12. Specifically, Appellant claims trial counsel should

have objected to Lieutenant McGlinn’s testimony during which he used a

memorandum containing hearsay and trial counsel should have requested



____________________________________________


6
   Appellant refers to the proposed defense witness as Oschino. He does not
provide additional information as to Oschino’s identity. Keith McLeod, the
victim, testified that Oschino was with Appellant on the day of the shooting
and testified that McLeod did not know Oschino’s real name.            N.T.,
7/28/2010, at 176-77.




                                           -4-
J-S65043-15



the use of tape-recorded messages of Yolanda Jones, a trial witness. Id. at

11.7

       The trial court found Appellant failed to establish he was prejudiced by

counsel’s    failure   to   contest   the      prior   evidentiary   rulings.   Opinion,

4/30/2015, at 11 (“PCRA 1925(a) Opinion”). The trial court noted it would

have made the same evidentiary rulings during the trial.              Id.

       In its 1925(a) opinion on direct appeal, the trial court found it was not

error to allow Lieutenant McGlinn to use a memorandum that he prepared,

which contained hearsay statements.8                   Opinion, 7/11/2011, at 12-13

(“Direct Appeal 1925(a) Opinion”).              It further found the Lieutenant was

properly permitted to testify regarding the hearsay statements of the victim.

Id. at 13.

       Following the shooting, while in transit from the trauma bay to the

operating room, Lieutenant McGlinn asked the victim who had shot him, and

____________________________________________


7
  During the first trial, the trial court made evidentiary rulings. At the start
of the second trial, counsel stated that he believed the trial court was bound
by the prior evidentiary rulings and did not re-argue the issues. N.T.,
7/28/2010, at 15-16. On direct appeal, this Court found Appellant waived
the challenge to evidentiary rulings because he failed to challenge the
rulings at the second trial. Direct Appeal Memorandum at 11-12.
8
  Although Lieutenant McGlinn identified the report he made following his
conversation with the victim, and testified it reflected his previous
testimony, he did not rely on this document while testifying.       N.T.,
7/28/2010, at 147-49. He identified it after he completed recounting his
conversation with the victim. Id.




                                            -5-
J-S65043-15



the victim responded: “Cash shot me.” N.T., 7/28/2010, at 146. He asked

the victim again who shot him, and the victim responded: “Cash. C-A-S-H.”

Id.9 The trial court noted the statement was within one hour of “being shot

numerous times at close range.” Direct Appeal 1925(a) Opinion, at 14. The

trial court reasoned the statements were admissible as present sense

impressions pursuant to Pennsylvania Rule of Evidence 803(1), which

provides:

          (1)      Present Sense Impression. A statement
          describing or explaining an event or condition, made while
          or immediately after the declarant perceived it.

Pa.R.Evid. 803(1).      The trial court reasoned that statement was a present

sense impression because it was “uttered before the dust and smoke of the

mishap which gave it birth subside[d], and while the agony and the hurt of

the misfortune [was] yet unspent.”             Direct Appeal 1925(a) Opinion, at 14

(quoting Thompson v. Philadelphia, 294 A.2d 826, 828 (Pa.Super.1972)

(admitting under res gestae exception to rule excluding hearsay a statement

made to police officer while in hospital x-ray room one hour after being

struck by car)).     This was not error.        Further, even if not admissible as a

present sense impression, the statement would have been admissible as a
____________________________________________


9
  Officer Kenneth Downing also testified that the victim stated Cash shot him
and a medical student who was in the elevator at the time of the declaration
testified that the victim told the officers who shot him, although she could
not remember the name the victim provided and spelled. N.T., 7/28/2010,
288-90; N.T., 7/29/2010, 6-11.




                                           -6-
J-S65043-15



dying declaration.10        Therefore, the underlying evidentiary claim that

Lieutenant McGlinn testified to impermissible hearsay evidence lacked

merit.11

       Similarly, in its direct appeal 1925(a) opinion, the trial court found the

tape-recorded messages from Yolanda Jones were inadmissible because

Appellant’s arguments lacked the requisite specificity as to what the tapes

would show. Direct Appeal 1925(a) Opinion, at 14. It noted that Appellant

merely claimed the tapes would have shown Jones was a liar. Id. He does

not explain what is on the tapes, whether the tapes would have contradicted

Jones’ testimony, and which portion of the testimony would have been

contradicted.     Id. at 15.     The trial court did not err in finding the tapes

____________________________________________


10
    When a declarant is unavailable, admission of “[a] statement that the
declarant, while believing the declarant’s death to be imminent, made about
its cause or circumstances,” is not prohibited by the hearsay rule. Pa.R.Evid.
804(b)(2). The declarant must believe death is imminent, he need not have
died. Id.; see Commonwealth v. Chamberlain, 731 A.2d 593, 597
(Pa.1999) (inferring that the victim believed she was dying due to the
gunshot wounds to her chest and head). Identifying the assailant would
relate to the cause or circumstances of the imminent death.
Commonwealth v. Edwards, 244 A.2d 683 684, 686 (Pa.1968) (victim’s
statement to police officer that “Howard Shot me” and another reference to
the shooter within scope of dying declaration). Further, the victim was
unavailable to testify as to the identification in the elevator because, as he
testified at trial, he did not recall the incident because he went in and out of
consciousness following the shooting.              Pa.R.Evid. 804(a)(3); N.T.,
7/28/2010, 187-89, 226.
11
   The victim also testified that Appellant shot him.        N.T., 7/28/2010, at
176-87.




                                           -7-
J-S65043-15



inadmissible. Because the claim lacked merit, the PCRA court properly found

counsel was not ineffective.

       The PCRA court did not err in finding trial counsel not ineffective for

failing to present Oschino as a witness.         To establish that counsel was

ineffective for failing to call a witness, a PCRA petitioner must demonstrate

that: “(1) the witness existed; (2) the witness was available to testify for the

defense; (3) counsel knew of, or should have 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. Washington, 927 A.2d 586,

599 (Pa.2007). The PCRA court found Appellant failed to establish several

prongs, including that Oschino was available and willing to testify. The PCRA

court noted the “witness was arguably a co-conspirator of Mann’s who

himself was at risk of being arrested and charged in his own right, thereby

making it highly unlikely that he would have been willing to testify for the

defense at trial.”      PCRA 1925(a) Opinion at 11-12.        The PCRA court

concluded that Appellant failed to establish counsel’s ineffectiveness. Id. at

12. In addition, Appellant also failed to present any description of Oschino’s

proposed testimony, in either his PCRA petition or his response to the PCRA

court’s notice of intent to dismiss the PCRA petition. 12 As Appellant failed to

____________________________________________


12
  Appellant’s brief states that Oschino contacted Appellant’s family and
wrote a letter indicating he would have testified. Appellant’s Brief at 12-13.
(Footnote Continued Next Page)


                                           -8-
J-S65043-15



allege the required elements to establish counsel ineffectiveness for failure

to call a witness, this claim fails.

      Appellant next maintains his appellate counsel was ineffective for

failing to frame the issues on appeal in a legally meaningful fashion,

including that appellate counsel failed to raise sufficiency of the evidence

claims for his gun convictions and did not properly raise his evidentiary

claims. Appellant’s Brief at 13-16. On direct appeal, this Court found the

Commonwealth presented sufficient evidence that Appellant was guilty of

attempted murder. Direct Appeal Memorandum at 5-7. In a footnote, we

noted that the argument section of the brief did not argue that there was

insufficient evidence of the gun possession convictions, and, therefore, it

need not address those convictions. Id. at 6 n.1. However, any challenge

to the sufficiency of the evidence of the gun convictions would have been

meritless, because the evidence established that Appellant carried, and

used, a firearm, which Appellant was not permitted to own, and that he used

the gun in Philadelphia.13
                       _______________________
(Footnote Continued)

The record does not include this letter. Further, the brief does not explain
Oschino’s proposed testimony, other than to state that Oschino was an
eyewitness. Id. at 13.
13
   A person is guilty of carrying a firearm without a license where he:
“carries a firearm concealed on or about his person, . . . without a valid and
lawfully issued license.” 18 Pa.C.S. § 6106(a). A person is guilty of carrying
a firearm in public in Philadelphia if, without a license or an exemption, he
“carr[ies] a firearm, rifle or shotgun at any time upon the public streets or
upon any public property” in Philadelphia, 18 Pa.C.S. § 6108(a). A person
(Footnote Continued Next Page)


                                            -9-
J-S65043-15



      The PCRA court also did not err in finding appellate counsel not

ineffective for failing to raise the evidentiary claims.        Trial counsel

ineffectiveness   claims, however, cannot be        raised on direct appeal.

Commonwealth v. Liston, 977 A.2d 1089, 1094 (Pa.2009) (quoting

Commonwealth v. O’Berg, 880 A.2d 597 (Pa.2005)).                 Further, as

discussed above, the evidentiary claims regarding Detective McGlinn’s

testimony and tape recordings of Yolanda Jackson lacked merit.14 Appellate

counsel cannot be found ineffective for failing to raise meritless claims. See

Spotz, 84 A.3d at 311.

      Appellant next contends his due process rights were violated because

the trial court imposed a deadly weapon enhancement. Appellant’s Brief at

16-18. He maintains that, based on Alleyne v. United States, 133 S.Ct.

                       _______________________
(Footnote Continued)

is guilty of possession of a firearm by person prohibited if he previously was
convicted of an enumerated offense and he “possess[es], use[s], control[s],
sell[s], transfer[s] or manufacture[s] . . . a firearm in this Commonwealth.”
18 Pa.C.S. § 6105(a)(1). Appellant previously was convicted of robbery, an
enumerated offense. Further, a jury found him guilty of using a firearm to
attempt to murder the victim. The use of the firearm was in Philadelphia,
Pennsylvania.
14
  To the extent Appellant purports to challenge appellate counsel’s failure to
properly raise a challenge to the preclusion of evidence that the
Commonwealth withdrew its prosecution against Terrell Ross, it appears this
was not raised in the second trial. Further, the evidence is inadmissible, see
Commonwealth v. Holloway, 739 A.2d 1039, 1044 (Pa.1999), and the
testimony clarified that the charges against Ross resulted from a
miscommunication between the police officers and the victim, as Ross
previously shot the victim but did not participate in the shooting at issue.
N.T., 7/28/2010, at 189-95.



                                           - 10 -
J-S65043-15



2151 (U.S. 2013), a jury was required to make a determination regarding

the applicability of the deadly weapon enhancement beyond a reasonable

doubt. Appellant’s Brief at 16-18.

      In Alleyne, the Supreme Court of the United States found that “[a]ny

fact that, by law, increases the penalty for a crime is an ‘element’ that must

be submitted to the jury and found beyond a reasonable doubt.” 133 S.Ct.

at 2155. Alleyne, however, does not apply to the application of a deadly

weapon enhancement. This Court has recently found:

         Alleyne and [Apprendi v. New Jersey, 530 U.S. 466,
         120 S.Ct. 2348 (U.S.2000)], dealt with factors that either
         increased the mandatory minimum sentence or increased
         the prescribed sentencing range beyond the statutory
         maximum, respectively. Our case does not involve either
         situation; instead, we are dealing with a sentencing
         enhancement. If the enhancement applies, the sentencing
         court is required to raise the standard guideline range;
         however, the court retains the discretion to sentence
         outside the guideline range. Therefore, neither of the
         situations addressed in Alleyne and Apprendi are
         implicated.

Commonwealth        v.   Buterbaugh,          91   A.3d   1247,   1270   n.10

(Pa.Super.2014) (en banc), appeal denied, 104 A.3d 1 (Pa.2014).

Accordingly, the PCRA court did not err in finding the application of the

deadly weapon enhancement did not violate Appellant’s due process rights.

      Appellant’s final contention is that PCRA counsel was ineffective for

filing a no-merit letter. Appellant’s Brief at 18-21. Appellant preserved his

PCRA counsel ineffectiveness claims, which he raised in his response to the

trial court’s notice of intent to dismiss the PCRA petition. Commonwealth


                                     - 11 -
J-S65043-15



v. Pitts, 981 A.2d 875, 879 n.3 (Pa.Super.2009) (appellant waives

challenge to PCRA counsel’s Turner/Finley letter where he “fail[ed] to

challenge PCRA counsel’s withdrawal upon his receipt of counsel’s no-merit

letter or within the 20-day period” to respond to the court’s notice of intent

to dismiss). However, the PCRA counsel ineffectiveness claim lacks merit.

As discussed above, the allegations Appellant attempted to raise in his PCRA

petition and in this appeal are meritless and PCRA counsel cannot be

ineffective for failing to raise meritless claims.   Commonwealth v. Ligons,

971 A.2d 1125, 1146 (Pa.2009) (finding PCRA counsel not effective because

underlying claim lacked merit).

       Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/7/2016




                                      - 12 -
