J-S35034-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

MICHAEL DAVIS,

                            Appellant                  No. 24 EDA 2015


                    Appeal from the PCRA Order June 2, 2014
               in the Court of Common Pleas of Delaware County
               Criminal Division at No.: CP-23-CR-0003651-2007


BEFORE: MUNDY, J., OLSON, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                               FILED JUNE 09, 2015

        Appellant, Michael Davis, appeals pro se from the order dismissing his

petition filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A.

§§ 9541-9546. We affirm.

        We summarize the factual and procedural history of this case from the

PCRA court’s opinion and our own independent review of the record as

follows. On January 20, 2007, the victim, after ignoring the front doorbell

and the backdoor buzzer, interrupted Appellant as he attempted to enter the

victim’s residence by using a screwdriver to pry open a bedroom window.

Appellant ran across the street, entered the office of a nearby construction

yard, asked for someone named Tony, and then stole a truck from the yard.

____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
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The victim called the police who searched the area and pursued the truck.

Appellant led the police on a chase, struck two vehicles, and was arrested

after being struck by a police car.            The officers found the screwdriver and

two syringes in Appellant’s possession.

       On April 15, 2008, Appellant waived his right to a jury trial. On the

same day, the court convicted Appellant of attempted burglary, possession

of an instrument of crime, receiving stolen property, possession of drug

paraphernalia, and fleeing or attempting to elude a police officer.1 On June

10, 2008, the court sentenced Appellant to an aggregate term of not less

than twenty-five nor more than fifty years’ imprisonment.             The attempted

burglary was Appellant’s third crime of violence conviction. The trial court

imposed the mandatory minimum sentence of at least twenty-five years’

total confinement. (See PCRA Court Opinion, 12/15/14, at 3-4); see also

42 Pa.C.S.A. § 9714(a)(2).

       Appellant timely filed a counseled direct appeal on July 9, 2008. On

January 5, 2010, this Court affirmed the judgment of sentence.                  (See

Commonwealth v. Davis, 991 A.2d 355 (Pa. Super. 2010) (unpublished

memorandum)).         The Pennsylvania Supreme Court denied leave to appeal




____________________________________________


1
  18 Pa.C.S.A. §§ 901, 907, 3925, 35 P.S. § 780-113(a)(32), and 75
Pa.C.S.A. § 3733, respectively.




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on November 3, 2010.          (See Commonwealth v. Davis, 9 A.3d 627 (Pa.

2010)).

       On January 6, 2011, Appellant timely filed a pro se PCRA petition

positing claims of constitutional violations, ineffective assistance of counsel,

illegal sentence, and lack of jurisdiction. The PCRA court appointed counsel

on January 21, 2011.         On April 26, 2011, counsel filed an application to

withdraw with a supporting Turner/Finley2 no merit letter. Appellant filed

pro se amendments to his PCRA petition on August 10, 2011 and December

2, 2013.

       The PCRA court permitted counsel to withdraw and notified Appellant

on January 29, 2014 of its intention to dismiss his PCRA petition without a

hearing pursuant to Pennsylvania Rule of Criminal Procedure 907.           See

Pa.R.Crim.P. 907. Appellant filed a pro se response on April 21, 2014.

       The PCRA court dismissed the petition on June 2, 2014.         Appellant

timely appealed on June 19, 2014.3

       Appellant raises the following question for our review:4

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2
  Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth
v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
3
  Pursuant to the PCRA court’s order, Appellant filed a timely Rule 1925(b)
statement on August 4, 2014. The court entered its Rule 1925(a) opinion on
December 15, 2014. See Pa.R.A.P. 1925.
4
  Appellant’s brief lists one issue with four subparts. (See Appellant’s Brief,
at 7).    However, he argues his claims as one overarching question
(Footnote Continued Next Page)


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      []Did the PCRA court commit an error of law, or abuse [its]
      discretion, in permitting PCRA counsel to withdraw with a no
      merit response, when the following underlying issues retained
      merit[:]

             [I.] Should PCRA counsel be found to have
             provided ineffective assistance of counsel when:

                       A) [] Counsel refused to investigate,
                       plead[,] and attempt to prove the
                       ineffectiveness of appellate counsel in
                       failing   to    address    trial   counsel’s
                       ineffectiveness regarding his failure to
                       [thoroughly] prepare and provide proper
                       evidentiary testing of a factual account
                       by a police officer during the trial?

                       B)      Counsel failed to address a layered
                       ineffective counsel claim that trial
                       counsel erred in failing to present a
                       suggestion to the fact finder that they
                       find appellant guilty of criminal trespass
                       rather than criminal attempted burglary,
                       if guilt was to be found at all?

                       C)    Counsel erred in failing to argue
                       that     appellate     counsel     provided
                       ineffective assistance in failing to file a
                       reply brief in the direct appeal to counter
                       misstatements         made      by      the
                       Commonwealth in their brief[,] which
                       ultimately found there [sic] way into the
                       language of the decision of [this]
                       [C]ourt?

             [II.] Should this Court rule the mandatory sentence
             imposed upon Appellant under 42 Pa.C.S.A. [§] 9714

                       _______________________
(Footnote Continued)

containing two issues with the first issue containing three subparts. (See id.
at 10-31).    Therefore, we have amended his questions to reflect his
arguments and for ease of reference.



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            [] as an illegal sentence and [render] the entire
            sentence void?

(Appellant’s Brief, at 7) (most capitalization omitted).

      Before we may address the merits of Appellant’s issues, we must

determine whether he properly preserved them for our review.                Rule

1925(b) provides, in relevant part:

      (b) Direction to file statement of errors complained of on
      appeal; instructions to the appellant and the trial court.—
      If the judge entering the order giving rise to the notice of appeal
      (“judge”) desires clarification of the errors complained of on
      appeal, the judge may enter an order directing the appellant to
      file of record in the trial court and serve on the judge a concise
      statement of the errors complained of on appeal (“Statement”).

                                    *    *    *

            (2) Time for filing and service.—The judge shall allow the
      appellant at least 21 days from the date of the order’s entry on
      the docket for the filing and service of the Statement. Upon
      application of the appellant and for good cause shown, the judge
      may enlarge the time period initially specified or permit an
      amended or supplemental Statement to be filed. . . . In
      extraordinary circumstances, the judge may allow for the filing
      of a Statement or amended or supplemental Statement nunc pro
      tunc.

             (3) Contents of order.—The judge’s order directing the
      filing and service of a Statement shall specify:

            (i) the number of days after the date of entry of the
            judge’s order within which the appellant must file
            and serve the Statement;

            (ii) that the Statement shall be filed of record;

            (iii) that the Statement shall be served on the judge
            pursuant to paragraph (b)(1);




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            (iv) that any issue not properly included in the
            Statement timely filed and served pursuant to
            subdivision (b) shall be deemed waived.

            4) Requirements; waiver.

                                   *   *    *
                  (ii) The Statement shall concisely identify each
            ruling or error that the appellant intends to challenge
            with sufficient detail to identify all pertinent issues
            for the judge

                                 *     *   *

                   (vii) Issues not included in the Statement
            and/or not raised in accordance with the provisions
            of this paragraph (b)(4) are waived.

Pa.R.A.P. 1925(b)(2), (3), (4)(ii) and (vii); see also Commonwealth v.

Arrington, 86 A.3d 831, 849 (Pa. 2014), cert. denied, 135 S.Ct. 479

(2014).

      Here, the record reflects that on June 19, 2014, the trial court issued

an order in technical compliance with Rule 1925(b) requiring Appellant to file

a statement “no later than twenty-one (21) days from the date hereof.”

(Concise Statement Order, 6/19/14, at 1).      The order provided that “any

issue not properly included in the statement timely filed and served in

compliance with this order and Pa.R.A.P. No. 1925(b) shall be deemed

waived.” (Id. at 2) (capitalization omitted and emphasis in original).

      On July 8, 2014, due to Appellant’s limited ability to access the

appellate rules caused by his incarceration, he requested an extension within

which to file his Rule 1925(b) statement.      (See Motion for Extension of

Time, 7/08/14, at 1).     The PCRA court granted him an extension and

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required Appellant to file a statement “no later than thirty (30) days from

July 8, 2014.” (Concise Statement Order, 7/09/14, at unnumbered page 1).

The order provided that “any issue not properly included in the statement

timely filed and served in compliance with this order as well as Pa.R.A.P. No.

1925(b) shall be deemed waived.”                (Id. at unnumbered page 2)

(capitalization omitted and emphases in original). Appellant filed his timely

concise statement on August 4, 2014.

      Here,   Appellant’s   claim   that   PCRA   counsel   provided   ineffective

assistance of counsel is not included in his Rule 1925(b) statement. (See

Appellant’s Statement of Matters Complained of on Appeal, 8/04/14, at 1-2).

Instead, he merely asserts that trial counsel was ineffective.         (See id.).

Accordingly, all of Appellant’s claims of ineffectiveness of PCRA counsel are

waived. See Pa.R.A.P. 1925 (b)(4)(vii); Arrington, supra at 849.

      Moreover, they would not merit relief.

      Our standard of review is well-settled:

             [A]n appellate 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. The 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.

Commonwealth v. Freeland, 106 A.3d 768, 775 (Pa. Super. 2014)

(citation omitted).

      A PCRA petitioner is eligible for relief if the claim is cognizable under

the PCRA and has not been previously litigated or waived. See 42 Pa.C.S.A.


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§§ 9543 and 9544; see also Commonwealth v. Ligons, 971 A.2d 1125,

1137 (Pa. 2009). “We also note that a PCRA petitioner is not automatically

entitled to an evidentiary hearing.    We review the PCRA court’s decision

dismissing a petition without a hearing for an abuse of discretion.”

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

omitted).

      To succeed on an ineffective assistance of counsel claim, a petitioner

must overcome the presumption that counsel is effective and demonstrate

that counsel’s deficient performance prejudiced him.      See Strickland v.

Washington, 466 U.S. 668, 687 (1984); Commonwealth v. Bennett, 57

A.3d 1185, 1195 (Pa. 2012). An appellant must demonstrate that: (1) his

underlying claim is of arguable merit; (2) counsel had no reasonable

strategic basis for his action or inaction; and (3) the appellant suffered

actual prejudice as a result. See Commonwealth v. Pierce, 527 A.2d 973,

975 (Pa. 1987). A failure to satisfy any prong of the Pierce test will require

rejection of the claim.   See Commonwealth v. Spotz, 84 A.3d 294, 311

(Pa. 2014).

      In Appellant’s first claim, he argues that he received ineffective

assistance of counsel because his PCRA counsel failed to investigate, plead

and attempt to prove trial counsel’s failure to impeach Colwyn Borough

Police Officer Steven Sibbett’s testimony. (See Appellant’s Brief, at 10-21).

The PCRA court properly found that Appellant’s Rule 1925(b) statement was

too vague to allow for meaningful review where it did not identify the

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testimony. (See PCRA Ct. Op., at 16); see also Pa.R.A.P. 1925(b)(4)(ii).

Appellant’s claim would be waived for that reason as well. Furthermore, the

record supports the court’s determination that Appellant failed to plead and

prove all three prongs of the Pierce test where trial counsel in fact

challenged Officer Sibbett’s testimony and there was overwhelming evidence

identifying Appellant as the perpetrator.    Appellant’s first claim would not

merit relief.

          In his second claim, Appellant argues that he received ineffective

assistance of counsel because PCRA counsel failed to address trial counsel’s

failure to argue that the evidence was sufficient for criminal trespass but not

attempted burglary.      (See Appellant’s Brief, at 21-24).   Our independent

review of the record reveals that this Court addressed the merits of

Appellant’s sufficiency argument on direct appeal. (See Davis, supra at *6

(holding that “Appellant’s attempted burglary conviction was supported by

adequate evidence[.]”)).       Accordingly, there is no arguable merit to

Appellant’s sufficiency claim.   Additionally, the PCRA court properly found

that trial counsel did attack the legal sufficiency of the attempted burglary

charge during closing argument.      (See PCRA Ct. Op., at 27).    The record

belies Appellant’s claim. Therefore, Appellant has failed to plead and prove

the arguable merit prong of the Pierce test where the record contradicts

Appellant’s instant argument.      Appellant’s second claim would not merit

relief.




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      In his third claim, Appellant argues that he received ineffective

assistance of counsel from PCRA counsel because he failed to argue that

direct appeal counsel did not file a reply brief to address a new matter in the

direct appeal, which resulted in this Court adopting the Commonwealth’s

factual misstatements that his hand was inside the home. (See Appellant’s

Brief, at 25-28). Again, the PCRA court properly found that Appellant’s Rule

1925(b) statement was too vague to allow for meaningful review where it

did not identify the alleged misstatements. (See PCRA Ct. Op., at 38); see

also Pa.R.A.P. 1925(b)(4)(ii). Furthermore, the record supports the court’s

determination that Appellant failed to plead and prove all three prongs of the

Pierce test where the victim testified repeatedly that Appellant’s hand was

underneath the open window.

      Accordingly, we would find no abuse of discretion in the PCRA court’s

denial of relief on Appellant’s first issue even were it not waived.

      In his remaining issue, Appellant argues that the imposition of a

mandatory minimum sentence is illegal pursuant to Alleyne v. United

States, 133 S.Ct. 2151 (2013).        (See Appellant’s Brief, at 30-31).    We

disagree.

      “[W]e note that issues pertaining to Alleyne go directly to the legality

of the sentence . . . [and] are questions of law[.] . . . Our standard of review

over such questions is de novo and our scope of review is plenary.”

Commonwealth v. Cardwell, 105 A.3d 748, 750 (Pa. Super. 2014)

(citations omitted).

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        Furthermore,

              . . . [N]either 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 specifically holds it to be retroactively applicable to those
        cases.

Miller, supra at 995 (citations omitted).

        Here, Appellant was sentenced on June 10, 2008. This Court affirmed

the judgment of sentence on January 5, 2010, and our Supreme Court

denied allocator on November 3, 2010.              Appellant did not seek a writ of

certiorari from the United States Supreme Court.             Therefore, Appellant’s

judgment of sentence became final on February 1, 2011, when the period for

him to file a petition for a writ of certiorari expired.       See 42 Pa.C.S.A. §

9545(b)(3).      As already noted, Alleyne was not decided until 2013.

Accordingly, Alleyne does not apply to Appellant.            See Miller, supra at

995.5

        Order affirmed.




____________________________________________


5
  We note that “[n]o Pennsylvania case has applied Alleyne to sentences
enhanced solely by prior convictions.” Commonwealth v. Lane, 81 A.3d
974, 976 n.5 (Pa. Super. 2013), appeal denied, 92 A.3d 811 (Pa. 2014).




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/9/2015




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