J-S33009-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                      v.

GARETH J. FERACIOLY

                               Appellant               No. 912 WDA 2015


                   Appeal from the PCRA Order May 19, 2015
        in the Court of Common Pleas of Butler County Criminal Division
                       at No(s): CP-10-CR-0001762-2006
                                CP-10-CR-0002004-2006
                                CP-10-CR-0002158-2006

BEFORE: GANTMAN, P.J., OLSON, J., and FITZGERALD,* J.

MEMORANDUM BY FITZGERALD, J.:                FILED: June 30, 2016

        Appellant, Gareth J. Feracioly, appeals from the order entered in the

Butler County Court of Common Pleas denying the fourth amendment of his

first Post Conviction Relief Act1 (“PCRA”) petition. We affirm.

        A prior panel of this Court summarized the facts of three underlying

criminal actions which were consolidated for appeal in this case as follows:

           No. 1762 of 2006

              [Appellant] was charged with two counts each of
           robbery, receiving stolen property, theft by unlawful
           taking, and recklessly endangering another person
           (“REAP”), and one count of possession of drug
           paraphernalia, in connection with two separate robberies
           committed on July 17, 2006 and July 22, 2006 at a 7-11
           convenience store located on Route 228 in Cranberry,

*
    Former Justice specially assigned to the Superior Court.
1
    42 Pa.C.S. §§ 9541-9546.
J-S33009-16

        Pennsylvania. . . . On June 21, 2007, a jury found
        [Appellant] guilty of all charges. On September 11, 2007,
        [he] was sentenced to 12 to 30 months of imprisonment
        on the first count of robbery, with consecutive sentences of
        24 to 64 months of imprisonment for the second count of
        robbery and one to two months of imprisonment for
        possession of drug paraphernalia, followed by an
        aggregate term of two years of probation. [Appellant] filed
        post-sentence motions which were denied. . . .

        No. 2158 of 2006

           [Appellant] was charged with two counts each of
        robbery, terroristic threats, theft by unlawful taking, and
        receiving stolen property, and one count of possessing an
        instrument of crime in connection with the armed robbery
        of two cashiers on July 16, 2006 at a grocery store called
        the Prospect Corner Store, located in Butler, Pennsylvania.
        On October 18, 2007, a jury found [him] guilty of all
        charges. The trial court sentenced [Appellant] to 24 to 48
        months of imprisonment for each of the robbery
        convictions, to be served consecutively, with no additional
        terms of incarceration for the remaining crimes.
        [Appellant] filed post-sentence motions which were denied.
        ...

        No. 2004 of 2006

           [Appellant] was charged with one count each of
        robbery, theft by unlawful taking, and receiving stolen
        property in connection with a robbery committed on July
        19, 2006 at GlassMart, a gas station convenience store
        located in Butler, Pennsylvania. On September 27, 2007,
        a jury found [him] guilty of all charges. [On October 29,
        2007, t]he trial court sentenced him to five to 20 months
        of imprisonment for robbery and imposed no further
        sentence on the remaining charges. [Appellant] filed post-
        sentence motions which were denied. . . .

Commonwealth v. Feracioly, 2213 WDA 2007, 2315 WDA 2007, 164 WDA

2008 (unpublished memorandum at 2-4) (Pa. Super. June 23, 2009)

(footnotes omitted).


                                   -2-
J-S33009-16

      On January 16, 2008, Appellant filed notices of appeal, which were

consolidated.   This Court affirmed the judgment of sentence on June 23,

2009 in the consolidated appeals.      Id. at 1.    Appellant filed a petition for

allowance of appeal on July 22, 2009.              On December 2, 2009, the

Pennsylvania Supreme Court denied the petition.             Commonwealth v.

Feracioly, 985 A.2d 218 (Pa. 2009).

       On December 2, 2010, counsel for Appellant filed three PCRA

petitions.   In case number 2004, Appellant raised the following issues

regarding counsel’s ineffectiveness:

         1. Counsel failed to request a jury instruction concerning
         the voluntariness of the confession.

         2. Counsel failed to properly preserve the argument that
         he was prejudiced at trial when the jury saw him in
         shackles and/or handcuffs.

PCRA Pet., 12/2/10, at 6 (unpaginated).            Counsel requested to file an

amended PCRA petition. Id.

      In case number 1762, Appellant raised the following issues:

         1. Counsel failed to request written statement of victim,
         Gina Chaney, when the police report given to counsel
         indicated that such a statement existed.

         2. Counsel failed to properly preserve the discretionary
         aspects of sentencing issue on appeal in that the sentence
         was harsh.

PCRA Pet., 12/2/10, at 7 (unpaginated) (citation omitted).               Counsel

requested to file an amended PCRA petition. Id.

      In case number 2158, Appellant raised the following issues:


                                       -3-
J-S33009-16

          1. Counsel failed to object to the testimony and evidence
          that [Appellant] was in custody at the time of his
          confession, although counsel did object to the testimony
          that [Appellant] was incarcerated in the Allegheny County
          Jail, counsel failed to continue to object that [Appellant]
          was incarcerated in the Allegheny County Jail on other
          charges.[2]

          2. Counsel failed to properly raise the above issue to the
          appellate courts.

          3. Counsel failed to argue to the appellate courts that the
          prosecutor’s question concerning [Appellant’s] prior
          interaction with the police was not relevant and highly
          prejudicial.

PCRA Pet., 12/2/10, at 6 (unpaginated) (citations omitted and emphasis

added). Counsel requested to file an amended PCRA petition. Id.

     On December 2, 2010, counsel filed a motion to consolidate the PCRA

proceedings.   The trial court granted the motion to consolidate the three

cases. Order, 1/25/11.

     On May 13, 2011, Appellant was granted leave to file an amended

PCRA petition.    Order, 5/13/11.     On July 29, 2011, Appellant filed an

Amended PCRA petition for all three cases.     Appellant raised the following

issues:

          No. 2004 of 2006


2
  We note that the PCRA court observed in its opinion, “The Commonwealth
correctly points out in its Brief Re: PCRA Petitions that [Appellant] has
misstated the record in reference to this issue. At no time did Trooper
[Randolph] Guy [(“Trooper Guy”)] testify nor did the prosecutor ask about
[Appellant] being in the Allegheny County Jail on other charges.” PCRA Ct.
Op., 5/15/13, at 9.



                                     -4-
J-S33009-16

        I. Counsel gave ineffective assistance by failing to request
        a jury instruction concerning the voluntariness of the
        confession.

        No. 2158 of 2006

        I. Counsel   gave ineffective assistance for failing to properly
        raise the    issue that the trial court erred in allowing
        evidence     that [Appellant] was incarcerated in the
        Allegheny    County Jail on other charges to the appellate
        courts.

        No. 1762 of 2006

        I. Counsel gave ineffective assistance for failing to raise a
        discretionary aspect of sentencing issue on appeal in that
        the sentence was harsh.

        II. Counsel gave ineffective assistance for failing to
        properly preserve a discretionary aspect of sentencing
        issue on appeal.

        III. Counsel gave ineffective   assistance for failing to fully
        and properly cross-examine      the victim [Barbara Marshall
        (“Ms. Marshall”)] as to the     misidentification of the item
        that [Appellant] was carrying   as a weapon.

PCRA Pet., 7/29/11, at 10.

     On January 31, 2012, the PCRA court filed a Pa.R.Crim.P. 907 notice of

intent to dismiss. On February 17, 2012, Appellant filed a response to the

Rule 907 notice.3    On the same date, Appellant filed a second amended


3
  In the response to the Rule 907 notice, Appellant also filed a motion for
leave to filed an amended PCRA petition. See Response to Notice of
Intention to Dismiss and Motion for Leave to File Amended PCRA Petition
Pursuant to Rule 905(A) of the Pennsylvania Rules of Criminal Procedure,
2/17/12. We note that Appellant was not granted leave to file the second
amended PCRA petition.




                                      -5-
J-S33009-16

PCRA petition.      In the second amended petition, Appellant raised the

following issues:

         No. 2004 of 2006

         I. Counsel gave ineffective assistance for failing to request
         a jury instruction concerning the voluntariness of the
         confession.

         The relief requested for this claim is a new trial.

         No. 2158 of 2006

         I. Counsel   gave ineffective assistance for failing to properly
         raise the    issue that the trial court erred in allowing
         evidence     that [Appellant] was incarcerated in the
         Allegheny    County Jail on other charges to the appellate
         courts.

         The relief requested for this claim is a new trial.

         No. 1762 of 2006

     In Commonwealth v. Porter,                35   A.3d   4   (Pa.   2012),   our
Pennsylvania Supreme Court opined:

         Our procedural Rules contemplate that amendments to
         pending PCRA petitions are to be “freely allowed to achieve
         substantial justice.” Pa.R.Crim.P. 905(A). And, it is true
         that Rule 905 does not explicitly distinguish between initial
         and serial petitions. . . . [T]he Rule explicitly states that
         amendment is permitted only by direction or leave of the
         PCRA court.

Id. at 12. Instantly, Appellant complied with Rule 905(A). The second
amended PCRA petition includes the requested relief for the issues raised.
Generally, the same issues were raised in the prior petition. See infra.




                                       -6-
J-S33009-16



          I. Counsel gave ineffective assistance for failing to fully
          and properly cross-examine [Ms. Marshall] as to the
          misidentification of the item that [Appellant] was carrying
          as a weapon.

          The relief requested for this claim is a new trial.

          II. Counsel gave ineffective assistance for failing to fully
          and properly cross-examine [Ms. Marshall] as to the
          misidentification of the item that [Appellant] was carrying
          as a weapon because had counsel done this the
          Commonwealth could not enhance [Appellant’s] sentence
          pursuant to the theory that [Appellant] possessed or used
          a weapon.

          The relief requested for this claim is the vacation of the
          sentence and a new sentencing hearing be conducted.

          III. Counsel gave ineffective assistance for failing to raise a
          discretionary aspect of sentencing issue on appeal in that
          the sentence was harsh.

          The relief requested for this claim is the vacation of the
          sentence and a new sentencing hearing be conducted.

          IV. Counsel gave ineffective assistance for failing to
          properly preserve a discretionary aspect of sentencing
          issue on appeal.

          The requested relief for this claim is the vacation of the
          sentence and a new sentencing hearing be conducted.

Second Am. PCRA Pet., 2/17/12, at 10-11.

        On February 27, 2012, Appellant filed a supplement to the second

amended PCRA petition pursuant to P.R.Crim.P. 902(A)(15).4           On July 16,



4
    Rule 902(A)(15) provides:




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J-S33009-16

2012, a PCRA hearing was held. On July 17, 2012, the PCRA court granted

Appellant 60 days to file a brief in support of his PCRA petition.          On

September 17, 2012, Appellant filed a brief.      On May 15, 2013, the PCRA

court filed a Rule 907 notice of intent to dismiss. Appellant filed a motion to

amend his PCRA petition on November 24, 2014.5 The PCRA court granted

the motion on December 3, 2014.       On January 28, 2015, Appellant filed an

amended PCRA petition, denominated his fourth amended PCRA petition.

Appellant contended that he was entitled to relief under Alleyne v. United

States, 133 S. Ct. 2151 (2013). Fourth Am. PCRA Pet., 1/28/15, at 10.

      On April 20, 2015, the Commonwealth filed a response to the fourth

amended petition. On April 24, 2015, the PCRA court filed a Rule 907 notice

of intent to dismiss. On May 19, 2015, the PCRA court denied Appellant’s

         (A) A petition for post-conviction collateral relief shall bear
         the caption, number, and court term of the case or cases
         in which relief is requested and shall contain substantially
         the following information:

                                  *    *    *

         (15) if applicable, any request for an evidentiary hearing.
         The request for an evidentiary hearing shall include a
         signed certification as to each intended witness, stating the
         witness’s name, address, and date of birth, and the
         substance of the witness’s testimony. Any documents
         material to the witness’s testimony shall also be included
         in the petition[.]

Pa.R.Crim.P. 902(A)(15).
5
  The docket reflects no further activity between May 15, 2013 and
November 24, 2014.



                                      -8-
J-S33009-16

fourth amended PCRA petition. This timely appeal followed.6 Appellant filed

a court-ordered Pa.R.A.P. 1925(b) statement of errors complained of on

appeal and the PCRA court filed a responsive opinion.

        Appellant raises the following issues for our review in case number

1762:

           1. Whether the PCRA court erred in concluding that trial
           counsel was not ineffective for failing to fully and properly
           cross-examine      [Ms.     Marshall]       regarding    the
           misidentification of the item Appellant was allegedly
           carrying as a weapon?

           2. Whether the PCRA court erred in concluding that trial
           counsel was not ineffective for failing to challenge the
           discretionary aspects of Appellant’s sentence in post-
           sentence motions or on direct appeal, as Appellant’s
           sentence was overly harsh?

           3. Whether the PCRA court erred in concluding that trial
           counsel was not ineffective for failing to challenge the
           application of the deadly weapon used and deadly weapon
           possessed sentencing enhancement when the evidence
           was inconclusive at best whether Appellant possessed a
           deadly weapon in the commission of the robbery?[7]

6
  Appellant filed the notice of appeal pro se on May 28, 2015, and it was
docketed on June 1, 2015. On June 1, 2015, counsel filed a motion for leave
to withdraw. On June 1, 2015, Appellant filed a motion for appointment of
counsel. The PCRA court granted the motion to withdraw on June 8, 2015,
and present counsel was appointed on June 11, 2015.
7
    Appellant, in support of this issue, states as follows:

               Appellant’s third issue asserts that the PCRA court erred
           in concluding that trial counsel was not ineffective for
           failing to challenge the application of the deadly weapon
           used [sic] sentencing enhancement where the evidence
           was inconclusive at best that Appellant possessed a deadly
           weapon in the commission of the robbery at issue.



                                        -9-
J-S33009-16



            4. Whether the PCRA court erred in concluding that
            Appellant’s sentence was not illegal under Alleyne v.
            United States, [ ] 133 S. Ct. 2151 [ ] (2013)?[8]

Appellant’s Brief at 5-6 (footnote omitted).

        In case number 2004, Appellant raises the following issue:

            1. Whether the PCRA court erred in concluding that trial
            counsel was not ineffective in failing to properly preserve
            and request a jury instruction relating to the voluntariness
            of Appellant’s confession?

Id. at 6.

        In case number 2158, Appellant asks this Court to consider the

following issue:

            1. Whether the PCRA court erred in concluding that trial
            counsel was not ineffective for failing to preserve and
            argue on direct appeal that the trial court abused its
            discretion in permitting the jury to hear evidence that
            Appellant had been incarcerated in the Allegheny County
            Jail?

Id.

        This Court has stated:

              Our standard and scope of review for the denial of a
            PCRA petition is well-settled.



            Appellant submits that this issue is subsumed in
            issue 1 above, and Appellant incorporates that argument
            as if set forth at length herein.

Appellant’s Brief at 32-33 (emphasis added). Given our resolution of issue
one, we need not address this issue. See infra.
8
    Appellant withdrew this issue on appeal. Appellant’s Brief at 33.



                                       - 10 -
J-S33009-16

           [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.

                                *     *      *

        . . . Counsel is presumed effective, and to rebut that
        presumption, the PCRA petitioner must demonstrate that
        counsel’s performance was deficient and that such
        deficiency prejudiced him.        In Pennsylvania, we have
        refined the [Strickland v. Washington, 466 U.S. 668
        (1984),] performance and prejudice test into a three-part
        inquiry. Thus, to prove counsel ineffective, the petitioner
        must show that: (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. If a petitioner fails to prove any of these prongs,
        his claim fails. . . .      To demonstrate prejudice, the
        petitioner must show that there is a reasonable probability
        that, but for counsel’s unprofessional errors, the result of
        the proceedings would have been different. A reasonable
        probability is a probability that is sufficient to undermine
        confidence in the outcome of the proceeding.

                                *     *      *

           [A] defendant [raising a claim of ineffective
           assistance of counsel] is required to show actual
           prejudice; that is, that counsel’s ineffectiveness was
           of such magnitude that it “could have reasonably had
           an adverse effect on the outcome of the
           proceedings.”

Commonwealth v. Charleston, 94 A.3d 1012, 1018-19 (Pa. Super. 2014)

(some citations omitted), appeal denied, 104 A.3d 523 (Pa. 2014).

“Furthermore, we note that we are bound by the PCRA court’s credibility



                                    - 11 -
J-S33009-16

determinations where there is record support for those determinations.”

Commonwealth v. Santiago, 855 A.2d 682, 694 (Pa. 2004) (citation

omitted).

     In Commonwealth v. Howard, 719 A.2d 233 (Pa. 1998), our

Pennsylvania Supreme Court held that

        [g]enerally, where matters of strategy and tactics are
        concerned, counsel’s assistance is deemed constitutionally
        effective if he chose a particular course that had some
        reasonable basis designed to effectuate his client’s
        interests. Trial counsel will not be deemed ineffective for
        failing to assert a claim that would not have been
        beneficial, or for failing to interview or present witnesses
        whose testimony would not have been helpful. Nor can a
        claim of ineffective assistance generally succeed through
        comparing, by hindsight, the trial strategy employed
        with alternatives not pursued.

Id. at 237 (citations omitted and emphasis added).

     First, in case number 1762, Appellant contends the PCRA court erred

in concluding that trial counsel was not ineffective for failing to fully and

properly cross-examine the victim regarding the misidentification of the item

Appellant was allegedly carrying as a weapon. He “avers that trial counsel

lacked any reasonable basis for failing to question Ms. Marshall as to

whether the item she observed could have been something other than a

weapon.” Appellant’s Brief at 27.

     At trial, counsel cross-examined Ms. Marshall as follows:

        Q: This gun that you saw, can you describe it for us
        please?




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J-S33009-16

       A: All I can tell you is that it─in the left side there was a
       gun, and all I could really tell it was black.

       Q: Are you familiar with handguns, ma’am?

       A: Not real familiar, no.

                                  *     *       *

       Q: And all you saw was the handle portion─

       A: Yes.

       Q: ─of the─

       A: Yes.

       Q: ─what you think was a gun, correct?

       A: Yeah.

       Q: How would you describe the holster? You said there was
       [sic] holster of some sort?

       A: Well, it would be attached to your hip and it would be
       black.

                                   *     *      *

       Q: So you couldn’t see the barrel or the trigger, correct?

       A: No, sir, I could not.

       Q: Just the black handle?

       A: Yes, sir.

       Q: And at no time did [Appellant] place his hand on that
       handle?

       A: No, sir.

       Q: And for all you know, that handle, that item could have
       been a knife, correct?


                                       - 13 -
J-S33009-16



        A: Yes, sir.

N.T., 6/21/07, at 62-63.

     At the PCRA hearing, trial counsel testified as follows.

        [Counsel for Appellant]: Do you recall [Appellant’s] case?

        A: Yes, I do.

        Q: Do you recall the fact that he had multiple cases?

        A: I do.

        Q: Do you recall the case with─the one case that they said
        he had a weapon?

        A: Yes.

        Q: And that was the only case that he had a weapon?

        A: That he had a gun.

        Q: Yes.

        A: I believe there were three robberies in which he was
        alleged to have had a weapon. One robbery in which he
        was alleged to have a gun, if I’m not mistaken.

        Q: And many of those robberies, after you were done with
        them, they were reduced down to felony three robberies,
        is that correct?

        A: I believe at least one or two of the robberies that were
        originally charted as F ones were reduced down to F
        threes. . . .

                                 *     *      *

        Well, there was an allegation I believe and I recall the
        Prospect Corner Store robbery he was alleged to have held
        a knife. And I believe there were two robberies of the 7-
        Eleven in Cranberry in which he was─the first robbery that


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J-S33009-16

       occurred in─allegedly occurred in─at that 7-Eleven, he was
       alleged to have carried or held a knife, if I’m not mistaken.

       Q: Okay.

       A: And the second alleged robbery that occurred at that
       7─Eleven, he was alleged to have held or had a gun on his
       possession─in his possession.

       Q: Are you aware of the case of Marshall─Barbara
       Marshall?

       A: Yes.

       Q: Where it was─and she indicated that she saw a handle
       of a gun?

       A: Yes.

       Q: I’m going to show you what’s already been marked as
       Exhibit─PCRA Exhibit 2. Do you recall?

       A: Yes. I do recall that drawing. That’s a drawing that Ms.
       Marshall had prepared during her testimony.

       Q: And that was of what, sir?

       A: A.D.A. DeMarco had instructed Ms. Marshall to draw a
       gun.

                               *     *      *

       Q: And your─do you recall your cross-examination?

       A: Somewhat, yes.

       Q: Do you recall that you asked her whether she ever saw
       the gun be pulled out?

       A: Yes, I believe I would have asked her that question.

       Q: And do you recall that she said, no, it never was
       touched?



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J-S33009-16

       A: Yes, I do recall that.

       Q: And that it was some kind of a handle on top of a
       holder?

       A: Yes.

       Q: And do you recall her testifying─or testifying that─after
       your questions, it could have been a knife?

       A: Yes.

       Q: And she said that?

       A: Yes, she said it could have been.

       Q: Now, you never asked a specific question as to could it
       have been a non-weapon?

       A: I did not ask that question.

       Q: Okay. All right. And subsequently, we have had Ms.
       Marshall testify under oath today, and she said that there
       is a 50 percent chance that it was─could have been a non-
       weapon. 50 percent chance that it could have been a
       weapon. Was there any reasonable strategy of why you
       did not ask that specific question?

       A: The only thing I could say about that is I do recall the
       two robberies that had occurred at the 7─Eleven
       were tried together, if I’m not mistaken. And I believe
       there was testimony regarding the first robbery that
       occurred at that 7─Eleven that [Appellant] had a knife in
       his possessions [sic]. . . .

       Q: Do you recall that the testimony may have been that
       the knife fell out?

       A: Yes. . . . The knife that he possessed during the first
       7─Eleven robbery had fell [sic] out of his holster or─

       Q: Out of his pocket?




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J-S33009-16

        A: Pocket or whatever, yes.         And my objective, if I
        may─was to do everything I could to make sure that
        [Appellant] was not convicted of the first degree robbery.
        Because if he had been convicted of a first degree robbery,
        robbery with a gun with the intent to─the robbery
        involving serious bodily injury, I knew he would be looking
        at possibly a five to 10─year mandatory. So, my number
        one objective was to make sure that [Appellant] was not
        convicted of the first degree robbery, robbery with the─a
        fear of serious bodily injury. I wanted him to avoid a five
        to 10─year mandatory. And I also wanted to maintain
        some credibility with the jury. And I felt that if─it would
        be easier to convince a jury that [Appellant] possessed a
        knife than it would be to convince the jury that he may
        have possessed, for example, a cell phone. Because my
        thinking, a knife handle is─more resembles a gun handle
        than a cell phone does.

                                 *     *      *

        And he was convicted of the F three regarding the first
        [7─Eleven] robbery and he was convicted of the F two
        regarding the second [7─Eleven] robbery.

        Q: And you indicated that the knife was never used, you
        actually argued that to the jury?

        A: Yes. . . .

N.T., 7/16/12, at 24-29, 31 (emphasis added).

     The PCRA court opined:

           At trial on June 21, 2007, during cross-examination of
        [Ms.] Marshall, the victim of the July 22, 2006 robbery,
        defense counsel . . . was successful in causing Ms. Marshall
        to concede that what she saw [Appellant] carrying in the
        holster on his left hip could have been a knife rather than a
        gun. [Appellant] complains that [counsel] should have
        asked [Ms. Marshall] if there was a possibility that the
        object she saw on [Appellant’s] left hip could have been
        something other than a weapon. However, as pointed out
        by the Commonwealth, Gina Chaney, the victim of the July
        17, 2006 robbery, had testified earlier that day at trial that


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        she saw a knife fall out of [Appellant’s] pocket during the
        robbery.[9] Also, at trial, [Appellant’s] confession of the
        July 22, 2006 robbery was introduced through
        Pennsylvania State Trooper Randolph Guy [(“Trooper
        Guy”)]. In the confession, [Appellant] stated that during
        that robbery he displayed a small metal bar to the clerk.
        It would have been disingenuous to the jury had [defense
        counsel] argued that the object on [Appellant’s] left hip
        could have been a non-weapon or that “. . . it was more of
        a cell phone,” as suggested by PCRA counsel.

                                 *     *      *

           Given Ms. Marshall’s testimony up through trial,
        [counsel] had a reasonable basis for the strategy he
        employed in this trial. He was able to avoid the imposition
        of a five (5) year mandatory minimum sentence and
        achieved acquittals of two felony one robberies as well as a
        felony two robbery, thus reducing the severity of the guilty
        verdicts and the corresponding punishment.

PCRA Ct. Op., 5/15/13, at 3-4 (citations omitted).

     The PCRA court found counsel to be credible and his strategy

reasonable.   See Santiago, 885 A.2d at 694.         We agree that counsel’s

strategy was reasonable given the evidence adduced at trial. See Howard,


9
  Ms. Chaney testified to the following. She worked at 7─Eleven on Route
228, in Cranberry Township. N.T., 6/21/07, at 30. She worked the
midnight shift on the day of the robbery. Id. at 31. She described what the
“robber” did once she opened the cash register:

        He took the cash out of the register, and as he was pulling
        the quarters out of the register a knife fell out of his
        pocket. He bent down and picked the knife up. Then he
        started pulling lottery tickets out because it’s right there
        beside the register, and then he ran over and got
        cigarettes and ran out the door.

Id. at 35-36 (emphasis added).



                                     - 18 -
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719 A.2d at 237. Therefore, counsel was not ineffective. See Charleston,

94 A.3d at 1018-19.

      Next, Appellant argues trial counsel was ineffective for failing to

challenge his sentence as unduly harsh and excessive on direct appeal.

Appellant’s Brief at 30. Appellant avers that

         at the time of sentencing, Appellant was already serving a
         sentence of ten (10) to twenty (20) years for robberies in
         Indiana County, and concurrent aggregate sentences of six
         (6) to twelve (12) years’ incarceration for robberies in
         Allegheny County and three (3) to six (6) years’
         incarceration for an Armstrong County Robbery. At case
         No. 1762 of 2006, Appellant was sentenced to an
         aggregate term of three (3) years and one (1) month to
         eight (8) years’ incarceration. However, the trial court
         sentenced [Appellant] to serve his incarceration in this
         matter consecutive to any other term he was serving.

Id. at 30-31. Appellant claims “the sentence became especially harsh when

it was consecutive to the prior sentences. Specifically, it would be almost

ten years after sentencing before Appellant even began serving the instant

sentence, resulting in a grossly disproportionate sentence to the crimes

Appellant committed . . . .” Id. at 31-32.      Appellant contends the sentence

is unduly harsh and therefore the imposition of the consecutive sentence

raises a substantial question and counsel was ineffective for failing to raise it

in a post-sentence motion.10

      This Court has stated that

10
  Appellant raised the issue on direct appeal and this Court found that it was
waived for failure to raise it in a post-sentence motion or to the trial court
during sentencing. See Feracioly, 2213 WDA 2007, at 23.



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         [c]hallenges to the discretionary aspects of sentencing do
         not entitle an appellant to appellate review as of right.
         Prior to reaching the merits of a discretionary sentencing
         issue:

            [W]e conduct a four part analysis to determine: (1)
            whether appellant has filed a timely notice of appeal,
            see Pa.R.A.P. 902 and 903; (2) whether the issue
            was properly preserved at sentencing or in a motion
            to reconsider and modify sentence, see Pa.R.Crim.P.
            [720]; (3) whether appellant’s brief has a fatal
            defect, Pa.R.A.P. 2119(f); and (4) whether there is
            a substantial question that the sentence appealed
            from is not appropriate under the Sentencing Code,
            42 Pa.C.S.A. § 9781(b).

Commonwealth v. Evans, 901 A.2d 528, 533 (Pa. Super. 2006) (some

citations omitted).

      A claim of excessiveness can raise a substantial question as to the

appropriateness of a sentence under the Sentencing Code, even if the

sentence is within the statutory limits.     Commonwealth v. Mouzon, 812

A.2d 617, 624 (Pa. 2002).    However, bald allegations of excessiveness do

not raise a substantial question. Id. at 627.

            Generally, Pennsylvania law “affords the sentencing
         court discretion to impose its sentence concurrently or
         consecutively to other sentences being imposed at the
         same time or to sentences already imposed. Any
         challenge to the exercise of this discretion ordinarily does
         not raise a substantial question.” Commonwealth v.
         Pass, 914 A.2d 442, 446–47 (Pa. Super. 2006). See also
         Commonwealth v. Hoag, [ ] 665 A.2d 1212, 1214 (Pa.
         Super. 1995) (stating appellant is not entitled to
         “volume discount” for his crimes by having all
         sentences run concurrently). But see Commonwealth v.
         Dodge, 957 A.2d 1198 (Pa. Super. 2008) [ ] (holding
         consecutive, standard range sentences on thirty-seven


                                    - 20 -
J-S33009-16

          counts of theft-related offenses for aggregate sentence of
          58 ½ to 124 years’ imprisonment constituted virtual life
          sentence and, thus, was so manifestly excessive as to
          raise substantial question).

Commonwealth v. Prisk, 13 A.3d 526, 533 (Pa. Super. 2011) (emphases

added).

     Appellant’s sentence was not excessively and unduly harsh because it

was consecutive to the prior sentences. Appellant is arguing for a volume

discount by having his sentences run concurrently. See id. Therefore, trial

counsel was not ineffective for failing to preserve a challenge to the

discretionary aspect of Appellant’s sentence because the underlying     issue

lacks merit. See Charleston, 94 A.3d at 1018-19.

     In case number 2004, Appellant contends the PCRA court erred in

concluding that trial counsel was not ineffective in failing to properly

preserve and request a jury instruction relating to the voluntariness of

Appellant’s confession. Appellant’s Brief at 33. Although counsel requested

such an instruction following the trial court’s jury charge, it was untimely.

Id. at 35. Appellant avers that

          the evidence established that when Appellant confessed to
          the crime, Trooper Guy was aware Appellant was a heroin
          addict who used between 10 to 15 and 30 to 40 bags of
          heroin per day. Trooper Guy was also aware that at the
          time of the confession, Appellant had not used heroin for
          at least 24 hours. Moreover, Trooper Guy acknowledged it
          was possible that Appellant was suffering withdrawal
          symptoms at the time of the confession.




                                    - 21 -
J-S33009-16

Id. Appellant contends that based upon this evidence, the instruction would

have been warranted. Id.

        In Commonwealth v. Gonzales, 483 A.2d 902 (Pa. Super. 1984),

the

           [a]ppellant’s counsel made his request for a justification
           instruction after the court completed its initial charge to
           the jury. However, the request was made in response to
           the court's inquiry: “Are there any other points that you
           wish to make with me or any exceptions to the points.”
           This Court in Commonwealth v. Marshall, [ ] 417 A.2d
           681 ([Pa. Super.] 1979) decided a similar issue. In
           Marshall, we held that although the rule[11] indicates a

11
     The Gonzales Court refers to Pa.R.Crim.P. 1119, which provided:

           (a) Any party may submit to the trial judge written
           requests for instructions to the jury. Such requests shall
           be submitted within a reasonable time before the closing
           arguments, and at the same time copies thereof shall be
           furnished to the other parties. The trial judge shall charge
           the jury after the arguments are completed, and shall then
           rule on all written requests.

Id. at 904. Rule 1119 was renumbered Pa.R.Crim.P. 647 and amended
March 1, 2000, effective April 1, 2001. Rule 647 provides, in pertinent part,
as follows.

           Any party may submit to the trial judge written requests
           for instructions to the jury.      Such requests shall be
           submitted within a reasonable time before the closing
           arguments, and at the same time copies thereof shall be
           furnished to the other parties. Before closing arguments,
           the trial judge shall inform the parties on the record of the
           judge’s rulings on all written requests and which
           instructions shall be submitted to the jury in writing. The
           trial judge shall charge the jury after the arguments are
           completed.

Pa.R.Crim.P. 647(B).



                                      - 22 -
J-S33009-16

         clear preference for written requests, nothing in the rule
         itself bars a trial judge from entertaining oral requests for
         instructions. In Commonwealth v. Bishop, [ ] 372 A.2d
         794 ([Pa.] 1977), it was stated, “the provision permitting
         the submission of requested points for charge is not
         couched in mandatory terms, and a party is in no way
         bound by his failure to do so.” [Id. at] 796 n. 2[.]
         Accordingly, we find that the [a]ppellant’s request for
         instructions was properly, and timely made. In addition,
         we note that the request was sufficiently explicit in its
         terms.

Id. at 904-05.

       After the trial court concluded its instructions to the jury, the court

held a side-bar conference on the record. N.T., 9/27/07, at 117. The court

asked defense counsel if he had “anything for the record a the [sic] this

time?” Counsel for Appellant responded as follows.      “Yes, Your Honor.     It

should have been brought out sooner. . . . [T]here is a specific instruction

that instructs the jury as to how they are to evaluate confessions and the

process for doing so.” Id. at 117-18. The Commonwealth objected stating

that

         [w]e’re opposed to that. Had he brought it up at the time
         we would have addressed the issue within that instruction
         with Trooper [Randolph] Guy.           We had a charge
         conference at noon and that wasn’t addressed. We met
         again after lunch and it wasn’t addressed.

Id. at 118. The court denied the request. Id. Because counsel requested

the instruction in response to the court’s inquiry, we find that it was properly

and timely made. See Gonzales, 483 A.2d at 904-05.




                                     - 23 -
J-S33009-16

         Assuming, arguendo, the trial court would have granted the jury

instruction request had it been made earlier, we consider whether Appellant

was prejudiced. Appellant was required to demonstrate he was prejudiced

by trial counsel’s failure to request a jury instruction relating to the

voluntariness of his confession.       Where there is overwhelming evidence of

guilt,    trial   counsel’s   ineffectiveness      may   fail   the     prejudice    prong.

Commonwealth v. Saranchak, 866 A.2d 292, 301 (Pa. 2005).

         A review of the record reveals the following.          Carly    Kinter     testified

that on the date of the incident she was working alone at the GlassMart.

N.T. at 17.

            [The Commonwealth]: Can you tell me what you are
            referring to when you say the incident. . . .

            A: Um, I was alone in the gas station. A car had just
            pulled out from pumping gas. And I see someone come
            around the glass windows.

                                      *     *      *

            He walked around the building.                He     was     wearing
            sunglasses and it was nighttime.

                                      *     *      *

            Q: . . . And when he came around the building wearing
            sunglasses, what did he do, did he enter your building?

            A: Yeah. He walked around the counter right at me.

            Q: When you say around the counter, where were you
            standing?

            A: Behind the counter.



                                          - 24 -
J-S33009-16

       Q: In the cash register area?

       A: I was where the register was.

                                 *     *      *

       Q: Where were his hands?

       A: In his hoody pocket.

                                 *     *      *

       Q: And as he comes back behind the register, does he say
       anything to you?

       A: Yeah.   He told me to open the register and then step
       back.

       Q: And what if anything did you think at that time?

       A: I knew I was being robbed. I was afraid.

                                 *     *      *

       I didn’t know what was in his pocket.

                                 *     *      *

       He also told me to open the lottery drawer and get the
       money out for him.

                                 *     *      *

       Q: Did you give him the money from the lottery?

       A: Yeah. I was afraid not to.

       Q: . . . What were you afraid would happen to you if you
       didn’t?

       A: I didn’t know what he was capable of.      I thought he
       might hurt me.

                                 *     *      *


                                     - 25 -
J-S33009-16

        Q: Did he take anything from the register?

        A: He took all the money. . . .

                                 *     *      *

        [H]e took a couple lottery tickets.

                                 *     *      *

        Q: What did he do after he took the money and you gave
        him the other money and he took the lottery tickets?

        A: He ran back around the counter and warned me not to
        call the comes [sic] for ten minutes. And then he ran out
        the building . . . .

                                 *     *      *

        Q: Ma’am, the man who robbed you that night, do you see
        him in the courtroom today?

        A: Uh-huh.

        Q: And can you point to him and tell the jury what color
        his shirt is?

        A: (Indicating) Green.    The undershirt or the top shirt?
        Green Shirt.

        Q: What’s on top?

        A: Black

        [The Commonwealth]: We would like the record to reflect
        the witness has identified [Appellant].

N.T. at 17-21, 32.

     Furthermore, on direct appeal, in all three cases, Appellant argued that

the trial court erred by denying his motion to suppress the statements he

made to the state police because he was not sufficiently in possession of his


                                     - 26 -
J-S33009-16

mental and physical faculties to make a voluntary statement.        Feracioly,

2213 WDA 2007, at 6. He contended “at the time of the interrogation, he

was suffering from heroin withdrawal and unable to knowingly waive his

rights pursuant to Miranda v. Arizona, [ ] 86 S. Ct. 1602 (1966).”         Id.

This Court opined:

           At the hearing on the motion to suppress, the
        investigating officer from the Pennsylvania State Police,
        [Trooper Guy] testified that he transported [Appellant]
        from Allegheny County to Cranberry Township for the
        purpose of interviewing [him] about the crimes at issue.
        N.T., 1/11/2007, at 12. Once in Cranberry Township but
        before questioning began, police read Miranda warnings
        to [Appellant] and he signed a form waiving those rights.
        Id. at 7-8.

           According to Trooper Guy, during the time period that
        [Appellant] was in his custody, [Appellant] was: (1) awake
        and alert, (2) neither appeared physically ill nor verbalized
        that he was sick, i.e., [Appellant] was not sweating,
        shaking, or pale and did not complain of nausea, weakness
        or thirst, and (3) never told police that he was going
        through heroin withdrawal.        Moreover, Trooper Guy
        testified that [Appellant] gave answers consistent with the
        questions asked and the evidence police had already
        obtained:

           We specifically asked him about each and every
           robbery that we were investigating. And he gave a
           detailed account of each of those robberies including
           in some of them what he was wearing. Where he
           parked his vehicle. What kind of weapon or whether
           he had a weapon. He remembered details about the
           specific people working at the convenient [sic] stores
           or the establishments. He gave a very detailed
           account. Especially due to the number of robberies
           that he committed.

        Id. at 37-38.



                                   - 27 -
J-S33009-16

                                  *     *      *

            Upon review, the record supports the trial court’s
         findings that [Appellant] was not subjected to police
         coercion and that he fully understood the rights he was
         waiving. He was read his Miranda rights and signed a
         waiver of those rights. In addition, the record evinces that
         [Appellant] was coherent and alert during the questioning,
         there was no physical indication of heroin withdrawal, and
         [Appellant] did not specifically alert police to his alleged
         condition. On these facts, we conclude that the waiver of
         Miranda and subsequent police statements were given
         voluntarily and knowingly and thus, were properly
         admitted.

Id. at 8-10 (emphasis added and footnote omitted).

      This Court found the underlying issue to be meritless.12          See id.

Therefore, counsel cannot be deemed ineffective. See Charleston, 94 A.3d

at 1018-19.

      Lastly, in case number 2158, Appellant contends the PCRA court erred

in concluding that trial counsel was not ineffective for failing to preserve and

argue on direct appeal that the court abused its discretion in permitting the

jury to hear evidence that Appellant had been incarcerated in the Allegheny

County Jail. Appellant’s Brief at 37.

         With regard to the revelation by the remarks that [the
         defendant] was incarcerated, although generally no
         reference may be made at trial in a criminal case to a
         defendant’s arrest or incarceration for a previous crime,

12
  We note “[t]he [law of the case] doctrine refers to a family of rules which
embody the concept that a court involved in the later phases of a litigated
matter should not reopen questions decided by another judge of that same
court or by a higher court in earlier phases of the matter.”
Commonwealth v. Starr, 664 A.2d 1326, 1331 (Pa. 1995).



                                      - 28 -
J-S33009-16

         there is no rule in Pennsylvania which prohibits reference
         to a defendant’s incarceration awaiting trial or arrest for
         the crimes charged.

Commonwealth v. Johnson, 838 A.2d 663, 680 (Pa. 2003) (citation

omitted).     In Commonwealth v. Wilson, 649 A.2d 435 (Pa. 1994),

         the testimonial evidence in question “did not either
         expressly or by reasonable implication convey the fact of a
         prior criminal offense unrelated to the criminal episode for
         which [Appellant] was then on trial.” Commonwealth v.
         Stoltzfus, [ ] 337 A.2d 873, 881 ([Pa.] 1975).
         Accordingly, we must reject [the defendant’s] claim that
         he was prejudiced by the introduction of other crimes
         evidence and that counsel was ineffective for failing to
         object to that evidence.

Id. at 446.

      In the case at bar, at trial, Trooper Guy testified that he interviewed

Appellant at the Cranberry Township Police Department. N.T., 10/18/07, at

62. The Officer testified to the following.

         [The Commonwealth]: And how did [Appellant] get to the
         Cranberry Township Police Department?

         A: I transported him there.

         Q: And were you alone or with another officer?

         A: I was with another officer.

         Q: And where did you get [Appellant] from?

         A: The Allegheny County Jail.

Id.   The PCRA court found this issue to be meritless and opined:       “At no

time did Trooper Guy testify nor did the prosecutor ask about [Appellant]

being in the Allegheny County Jail on other charges.          The prosecutor


                                     - 29 -
J-S33009-16

simply asked ‘where did you get [Appellant] from?’” PCRA Ct. Op. at 9. We

agree no relief is due.

      This testimony did not convey the fact of a prior criminal offense. See

Johnson, 838 A.2d at 680; Wilson, 649 A.2d at 446. Therefore, counsel

was not ineffective for failing to preserve and argue on direct appeal that the

court abused its discretion in permitting the jury to hear evidence that

Appellant had been incarcerated in the Allegheny County Jail.             See

Charleston, 94 A.3d at 1018-19.

      Accordingly, we affirm the order denying Appellant’s fourth Amended

PCRA petition.

      Order affirmed.

      Gantman, P.J. joins the Memorandum.

      Olson, J. Concurs in the Result.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 6/30/2016




                                    - 30 -
