J-S05010-15

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,            : IN THE SUPERIOR COURT OF
                                         :      PENNSYLVANIA
                  Appellee               :
                                         :
             v.                          :
                                         :
JEVON A. EVERETT,                        :
                                         :
                  Appellant              : No. 35 WDA 2014

               Appeal from the PCRA Order December 4, 2013,
                 Court of Common Pleas, Allegheny County,
             Criminal Division at No(s): CP-02-CR-0012952-2006
                        and CP-02-CR-0015751-2006

BEFORE: DONOHUE, SHOGAN and STABILE, JJ.

MEMORANDUM BY DONOHUE, J.:                     FILED FEBRUARY 10, 2015

       Jevon A. Everett (“Everett”) appeals from the order entered on

December 4, 2013 by the Court of Common Pleas of Allegheny County,

Criminal Division, denying his petition filed pursuant to the Post Conviction

Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. We affirm.

       The relevant facts and procedural history of this case are as follows.

On August 29, 2008, a jury found Everett guilty of, inter alia, murder of the

first degree1 in the death of Michael Armbruster (“Armbruster”).          On

December 11, 2008, the trial court sentenced to Everett to life imprisonment

without the possibility of parole. This Court affirmed Everett’s judgment of

sentence in an unpublished memorandum dated March 24, 2011.              See

Commonwealth v. Everett, 977 WDA 2009 (Pa. Super. March 24, 2011)


1
    18 Pa.C.S.A. § 2502(a).
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(unpublished memorandum).        The Supreme Court of Pennsylvania denied

Everett’s petition for allowance of appeal on October 31, 2011.

      On January 3, 2012, Everett filed a pro se PCRA petition alleging, inter

alia, various violations of his constitutional rights and ineffective assistance

of counsel claims.   On May 29, 2012, the PCRA court appointed counsel

(“PCRA Counsel”) to represent Everett throughout his PCRA proceedings. On

November 8, 2013, PCRA Counsel filed a motion to withdraw as counsel and

a “no-merit” letter, pursuant to Commonwealth v. Turner, 544 A.2d 927

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

(en banc), addressing the more than twenty issues Everett sought to raise.

On November 14, 2013, the PCRA court filed its notice of intent to dismiss

Everett’s PCRA petition pursuant to Rule 907 of the Pennsylvania Rules of

Criminal Procedure and granted PCRA Counsel’s petition to withdraw.          On

December 4, 2013, the PCRA court denied Everett’s PCRA petition.             On

December 16, 2013, Everett filed a timely pro se notice of appeal.           On

January 24, 2014, the PCRA court appointed counsel (“Appellate Counsel”)

to represent Everett for this appeal.2

      On appeal, Everett raises the following issue for our review and

determination: “Did the [PCRA court] error in dismissing [Everett]’s [PCRA

petition], without an evidentiary hearing pursuant to the [m]otion to


2
   The PCRA court did not order Everett to file a concise statement of the
errors complained of on appeal pursuant to Rule 1925(b) of the Pennsylvania
Rules of Appellate Procedure.


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[w]ithdraw as [c]ounsel [p]ursuant to Commonwealth v. Turner filed by

PCRA Counsel?”     Everett’s Brief at 4.   Everett argues that the PCRA court

erred in dismissing his PCRA petition because his trial counsel was ineffective

for failing to request a voir dire of the jury or a mistrial following a

“potentially prejudicial encounter between the jury and juvenile family

members of the victim.”      Id. at 9.     Specifically, Everett claims that the

following transpired during his trial:

             On or about August 28, 2008, during [Everett]’s …
             trial on this matter, an event occurred which
             potentially biased the jury against [Everett]. On that
             day, a large number of Caucasian children were
             brought into the [courtroom]. They were in the
             gallery immediately behind [Everett]’s counsel table.
             These children were apparently the family and close
             friends of the deceased victim in this case. These
             children were standing there, looking at the man that
             they had been told had killed their uncle and family
             friend. Before they were sent out of the room, the
             jury began coming in.       The jury likely saw this
             display.

Id. at 11.

      We review the denial of PCRA relief by “examining whether the PCRA

court’s findings of fact are supported by the record, and whether its

conclusions of law are free from legal error.” Commonwealth v. Busanet,

54 A.3d 35, 45 (Pa. 2012). “Our 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 party who prevailed in the PCRA court proceeding.”         Id.

“Further, we afford great deference to the factual findings of the PCRA court



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and will not disturb those findings unless they have no support in the

record.” Commonwealth v. Stewart, 84 A.3d 701, 706 (Pa. Super. 2013)

(quotations omitted), appeal denied, 93 A.3d 463 (Pa. 2014). Likewise, “the

PCRA court’s credibility determinations are binding on this Court, where

there is record support for those determinations.”          Commonwealth v.

Anderson, 995 A.2d 1184, 1189 (Pa. Super. 2010).

      We conclude that Everett has waived the sole issue that he raises on

appeal. “It is well-settled that ‘issues not raised in a PCRA petition cannot

be considered on appeal.’”      Commonwealth v. Ousley, 21 A.3d 1238,

1242 (Pa. Super. 2011) (quoting Commonwealth v. Lauro, 819 A.2d 100,

104 (Pa. Super. 2003)).      In his PCRA petition, Everett framed the issue

relating to the children of the victim’s family and friends as a due process

claim, not as an ineffective assistance of counsel claim. See PCRA Petition,

1/3/13, at 75. Specifically, Everett claimed that it was a violation of his due

process rights when the district attorney allowed forty to fifty children of the

victim’s family and friends to enter the courtroom and stand behind him

while the jury watched. Id. However, in his PCRA petition, Everett made no

claim that his trial counsel was ineffective for failing to request a voir dire of

the jury or a mistrial following this event.      See id.    Therefore, because

Everett did not raise this issue in his PCRA petition and is now raising it for

the first time on appeal, we may not consider the issue.           See Ousley,

21 A.3d at 1242.



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      Even if Everett had properly raised the issue, he still would not be

entitled to any relief. In reviewing an allegation of ineffective assistance of

counsel, we begin with the assumption that counsel was effective.

Commonwealth v. Pierce, 527 A.2d 973, 975 (Pa. 1987). Our Supreme

Court has stated that in order “[t]o merit relief based on an ineffectiveness

claim under the PCRA, a petitioner must show that such ineffectiveness ‘in

the circumstances of the particular case, so undermined the truth-

determining process that no reliable adjudication of guilt or innocence could

have taken place.’”       Commonwealth v. Collins, 957 A.2d 237, 244

(Pa. 2008) (quoting 42 Pa.C.S.A. § 9543(a)(2)(ii)). This standard requires

“a petitioner to prove that: (1) the underlying claim is of arguable merit; (2)

counsel’s performance lacked a reasonable basis; and (3) the ineffectiveness

of counsel caused the petitioner prejudice.” Id. To demonstrate prejudice

in an ineffective assistance of counsel claim, “the petitioner must show that

there is a reasonable probability that, but for counsel’s unprofessional

errors,   the   result   of   the   proceeding   would   have   been   different.”

Commonwealth v. King, 57 A.3d 607, 613 (Pa. 2012). The failure by the

petitioner “to satisfy any one of the three prongs of the test for

ineffectiveness requires rejection of the claim.” Collins, 957 A.2d at 244.

      Here, Everett has failed to prove that his claim is of arguable merit.

There is no indication in the trial transcripts that the event relating to

children of the victim’s family and friends actually took place. See Everett’s



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Brief at 11 n.5. “It is black letter law in this jurisdiction that an appellate

court cannot consider anything which is not part of the record in the case.”

Commonwealth v. Martz, 926 A.2d 514, 524 (Pa. Super. 2007). Thus, not

only can we not say that this event actually took place, but even if it did, we

do not know how long the children and the jury were in the courtroom at the

same time. As Appellate Counsel points out, we cannot say exactly what the

jury observed. See Everett’s Brief at 11 n.6. Therefore, it is likewise not

possible for us to determine whether this event caused Everett any

prejudice.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 2/10/2015




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