J-S74017-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

DUANE STAYS

                            Appellant                 No. 1412 EDA 2015


                   Appeal from the PCRA Order April 10, 2015
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0008709-2008
                            CP-51-CR-0012245-2008


BEFORE: OTT, J., RANSOM, J., and STEVENS, P.J.E.*

MEMORANDUM BY OTT, J.:                            FILED DECEMBER 12, 2016

        Duane Stays appeals pro se1 from the order that dismissed, without a

hearing, his first petition filed pursuant to the Pennsylvania Post Conviction

Relief Act (PCRA), 42 Pa.C.S. §§ 9541–9546.        Stays seeks relief from the

judgment of sentence to serve an aggregate term of imprisonment of 15 to

30 years’ imprisonment, imposed after he was found guilty by a jury of


____________________________________________


*
    Former Justice specially assigned to the Superior Court.
1
  Appointed counsel filed a Turner/Finley no merit letter and petition to
withdraw, and the PCRA court granted appointed counsel leave to withdraw
on April 10, 2015, in the same order that dismissed Stays’ PCRA petition.
See Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988);
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
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aggravated assault, carrying a firearm without a license, possessing an

instrument of crime, and possessing a controlled substance. Stays argues

(1) “introduction into evidence of a prior inconsistent statement purportedly

identifying the petitioner made by a non-party declarant [Ivan Williams] who

was unavailable to testify at trial violated petitioner’s rights under the

[C]onfrontation [C]lause of the Sixth Amendment to the United States

Constitution[,]” and (2) “trial counsel was ineffective for not objecting to the

introduction of prior inconsistent statements, purportedly identifying the

petitioner made by a non-party declarant [Ivan Williams], who was

unavailable to testify at trial, because [the C]ommonwealth withheld

impeachment evidence at the preliminary hearing[.]”         Stays’ Brief at 6.

Based upon the following, we affirm.

      The evidence presented at trial was set forth by this Court in its

opinion issued in connection with Stays’ direct appeal, as follows:

      The trial court, [t]he Honorable Rosalyn K. Robinson,
      summarized the facts and procedural history of this case as
      follows:

         On the afternoon of June 22, 2008, two friends, Nasir
         Farlow and Ivan Williams, rode in Williams’[] car to the
         1600 block of South Frazier Street in West Philadelphia to
         get some lunch. When they arrived at their destination,
         Farlow exited the car to go into the store. Without
         warning, three or four gunshots rang out and Farlow was
         shot twice, once in each leg. Williams drove Farlow to the
         hospital and was later questioned by police.

         When police arrived on the scene, somebody told one of
         the officers that some neighborhood children had kicked
         shell casings into the sewer. When Detective Kenneth

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        Flaville arrived on the scene at the 1600 block of South
        Frazier Street, the sewer grate was lifted and a .40
        caliber shell casing was indeed found inside the sewer.

        Detective Flaville then questioned Ivan Williams about the
        shooting. Although Williams initially claimed that he did
        not know who had shot Nasir Farlow, he had a sudden
        change of heart and divulged much information about the
        shooter. He claimed that he had initially lied because he
        was afraid of what might happen to him and his family.
        Williams told Detective Flaville that the shooter was
        named Wayne, also called “Homicide Wiz,” and provided
        a physical description. Williams also said that Wayne and
        Farlow had a prior disagreement and told [D]etective
        Flaville where Wayne lived. Detective Flaville transcribed
        the entire interview and had Williams read over it to
        make sure that it was all correct. Williams then initialed
        each page and signed his name at the end. At this same
        interview, Williams also identified a photo of the current
        defendant, Duane Stays, as Wayne, circled the picture,
        and signed his initials.

        Detective Flaville used this information to obtain a search
        warrant for the apartment that Ivan Williams had said
        Wayne lived in. Upon execution of that warrant, Duane
        Stays was found in the apartment. A safe was also found
        that included marijuana, money, and a Glock Model 27
        handgun. The handgun was a .40 caliber handgun that
        was later matched to the shell casing found in the sewer
        at the crime scene. The police also recovered a pay stub
        with Duane Stays’ name on it and the address of the
        apartment that he was found in.

        At the preliminary hearing, Ivan Williams’ testimony was
        vastly different than his statement to the police. Williams
        claimed that he did not know anybody in the courtroom,
        that he had not seen anybody at the time of the shooting,
        and that he did not sign the photo array that featured a
        circled picture of Duane Stays. Duane Stays and his
        defense counsel were present at this hearing but declined
        to ask any questions on cross-examination.

        Between the time of the preliminary hearing and trial,
        Ivan Williams was murdered. … At trial, the court reporter

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         from the preliminary hearing read Ivan Williams’[]
         testimony from that hearing into the record. In addition,
         Detective Flaville read Williams’[] statement from the
         police interview at trial. Flaville also testified that Williams
         had reviewed and signed the statement in its entirety.

     Trial Court Opinion, 7/7/11, at 1-3.

     The Commonwealth also called a ballistics expert from the
     Philadelphia Police Department, Firearms Identification Unit, who
     offered an expert opinion that, without “any doubt,” the shell
     casing recovered from the storm sewer at 1600 South Frazier
     Street had been fired from the Glock handgun found in Duane
     Stays’ apartment. Stays offered no testimony on his own behalf
     and presented neither fact nor character witnesses. …


Commonwealth v. Stays, 70 A.3d 1256, 1259–61 (Pa. Super. 2013).

Stays was convicted and sentenced, as stated above. On July 8, 2013, this

Court affirmed the judgment of sentence.        See id.      Stays did not file a

petition for allowance of appeal in the Pennsylvania Supreme Court.

     On April 29, 2014, Stays filed this first PCRA petition.        Counsel was

appointed and subsequently filed a no-merit letter and petition to withdraw

from representation. The PCRA granted counsel’s request to withdraw and,

after providing Pa.R.Crim.P. 907 notice, dismissed Stays’ petition.         This

appeal followed.

     The legal principles that guide our review are well settled:

     “[A]s a general proposition, we review a denial of PCRA relief to
     determine whether the findings of the PCRA court are supported
     by the record and free of legal error.” Commonwealth v.
     Dennis, 609 Pa. 442, 17 A.3d 297, 301 (Pa. 2011) (citation
     omitted). A PCRA court’s credibility findings are to be accorded
     great deference, and where supported by the record, such
     determinations are binding on a reviewing court. Id., at 305
     (citations omitted). To obtain PCRA relief, appellant must plead

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     and prove by a preponderance of the evidence: (1) his
     conviction or sentence resulted from one or more of the errors
     enumerated in 42 Pa.C.S. § 9543(a)(2); (2) his claims have not
     been previously litigated or waived, id., § 9543(a)(3); and (3)
     “the failure to litigate the issue prior to or during trial ... or on
     direct appeal could not have been the result of any rational,
     strategic or tactical decision by counsel[,]” id., § 9543(a)(4). An
     issue is previously litigated if “the highest appellate court in
     which [appellant] could have had review as a matter of right has
     ruled on the merits of the issue[.]” Id., § 9544(a)(2). “[A]n
     issue is waived if [appellant] could have raised it but failed to do
     so before trial, at trial, ... on appeal or in a prior state
     postconviction proceeding.” Id., § 9544(b).

     To be entitled to relief on an ineffectiveness claim, a PCRA
     petitioner must establish: (1) the underlying claim has arguable
     merit; (2) no reasonable basis existed for counsel’s action or
     failure to act; and (3) he suffered prejudice as a result of
     counsel’s error, with prejudice measured by whether there is a
     reasonable probability the result of the proceeding would have
     been different. Commonwealth v. Chmiel, 612 Pa. 333, 30
     A.3d 1111, 1127 (Pa. 2011) (employing ineffective assistance of
     counsel test from Commonwealth v. Pierce, 515 Pa. 153, 527
     A.2d 973, 975-76 (Pa. 1987)). Counsel is presumed to have
     rendered effective assistance. Commonwealth v. Ali, 608 Pa.
     71, 10 A.3d 282, 291 (Pa. 2010). Additionally, counsel cannot be
     deemed ineffective for failing to raise a meritless claim.
     Commonwealth v. Jones, 590 Pa. 202, 912 A.2d 268, 278 (Pa.
     2006). Finally, because a PCRA petitioner must establish all the
     Pierce prongs to be entitled to relief, we are not required to
     analyze the elements of an ineffectiveness claim in any specific
     order; thus, if a claim fails under any required element, we may
     dismiss the claim on that basis. Ali, at 291.


Commonwealth       v.   Treiber,   121   A.3d   435,   444–445    (Pa.   2015).

Furthermore,

     [a] PCRA court is only required to hold a hearing where the
     petition, or the Commonwealth's answer, raises an issue of
     material fact. Pa.R.Crim.P. 909(B)(1)-(2). When there are no
     disputed factual issues, an evidentiary hearing is not required.
     Id.; Commonwealth v. Morris, 546 Pa. 296, 684 A.2d 1037,


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      1042 (Pa. 1996) (citation omitted). If a PCRA petitioner’s offer of
      proof is insufficient to establish a prima facie case, or his
      allegations are refuted by the existing record, an evidentiary
      hearing is unwarranted. See Commonwealth v. Hutchinson,
      611 Pa. 280, 25 A.3d 277, 320 (Pa. 2011) (citation omitted);
      Commonwealth v. Walker, 613 Pa. 601, 36 A.3d 1, 17 (Pa.
      2011).


Commonwealth v. Eichinger, 108 A.3d 821, 849 (Pa. 2014).

      The first issue presented by Stays in this PCRA appeal — that the trial

court’s admission of the prior inconsistent statement of Ivan Williams

violated his rights under the Confrontation Clause of the Sixth Amendment

— was raised and rejected on the merits by this Court in Stays’ direct

appeal. This Court held that an objection based upon the Confrontation

Clause would have been meritless because Mr. Williams was unavailable at

trial and there was an adequate opportunity to cross-examine him at the

preliminary hearing. See Stays, supra, 70 A.3d at 1264–1266. Therefore,

this claim is “previously litigated,” and does not present a cognizable claim

under the PCRA.     See 42 Pa.C.S. § 9544(a)(2). See also 42 Pa.C.S. §

9543(a)(3).

      Furthermore, because Stays’ ineffectiveness claim is based on the

above claim of trial court error that was rejected by this Court, Stays cannot

satisfy the arguable merit prong of the ineffectiveness test.               See

Commonwealth v. Collins, 888 A.2d 564, 573 (Pa. 2005) (noting that a

derivative ineffectiveness claim “may fail on the arguable merit or prejudice




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prong for the reasons discussed on direct appeal, [even though] a Sixth

Amendment claim raises a distinct issue for purposes of the PCRA”).2

       Accordingly, the PCRA court properly dismissed Stays’ PCRA petition

without a hearing.

       Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/12/2016




____________________________________________


2
  We agree with the Commonwealth that while Stays alleged in his PCRA
petition that “counsel did not have the opportunity to cross-examine as to
pending charge [sic],” he has failed to demonstrate that trial counsel was
unaware of any pending charges against Mr. Williams at the time of the
preliminary hearing. See Commonwealth’s Brief at 10.

      We further note that the PCRA court, in denying Stays PCRA relief,
relied upon appointed counsel’s supplemental no-merit letter that advised
the PCRA court that “Williams’ prior charges for attempted murder, which
was [sic] withdrawn before trial, and drug-related crimes, which resulted in
convictions, would certainly have been inadmissible at trial because they
were neither related to Stays’ case nor crimen falsi that would have been
admissible for impeachment purposes.” PCRA Court Opinion, 12/23/2015,
at 3. The PCRA court agreed with appointed counsel’s analysis, see id., and
Stays does not offer any argument to this Court that the PCRA court erred in
accepting the no-merit letter analysis.



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