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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA,                 IN THE SUPERIOR COURT
                                                            OF
                                                       PENNSYLVANIA
                             Appellee

                        v.

    DARYL COOK,

                             Appellant               No. 1757 EDA 2017


              Appeal from the PCRA Order Entered May 16, 2017
             In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0010093-2008


BEFORE: BENDER, P.J.E., STABILE, J., and PLATT, J.*

MEMORANDUM BY BENDER, P.J.E.:                          FILED JUNE 26, 2018

        Appellant, Daryl Cook, appeals pro se from the post-conviction court’s

May 16, 2017 order that denied his petition filed under the Post Conviction

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

        The PCRA court presented a detailed summary of the facts of Appellant’s

underlying convictions for third-degree murder and related offenses, which we

need not reproduce for purposes of this appeal.      See PCRA Court Opinion

(PCO), 6/28/17, at 2-5. In summarizing the procedural history of Appellant’s

case, the court stated:

              [Appellant] was charged with Murder, … Possessing an
        Instrument of Crime, … Burglary, and Criminal Trespass - Entering
        Structure. These charges arose out of an incident that occurred


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*   Retired Senior Judge assigned to the Superior Court.
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     on March 13, 2008, during which [Appellant] repeatedly stabbed
     and killed Robert Daniels.1

            [Appellant] was tried before this    [c]ourt and a jury in July
     of 2010.2 At the conclusion of the trial,   the jury found [Appellant]
     guilty of Murder of the Third Degree.       On August 26, 2010, this
     [c]ourt sentenced [Appellant] to 20-40      years.
        1The [trial c]ourt disposed of the Burglary and Criminal
        Trespass - Entering Structure charges. The Commonwealth
        nolle prossed the charge of Possessing an Instrument of
        Crime, generally.
        2[Appellant] was originally tried before a jury on August 7,
        2009, which resulted in a mistrial - hung jury.

           Following the … sentencing, [Appellant] filed a notice of
     appeal and on March 21, 2014, the Superior Court affirmed the
     judgment of sentence. ([Commonwealth v. Cook, 100 A.3d 314
     (Pa. Super. 2014) (unpublished memorandum)]). [Appellant]
     thereafter filed a petition for allowance of appeal in the
     Pennsylvania Supreme Court, which denied the petition on August
     26, 2014. ([Commonwealth v. Cook, 99 A.3d 75 (Pa. 2014)]).

            On March 5, 2015, [Appellant] filed a timely pro se petition
     pursuant to the Post[]Conviction Relief Act, 42 Pa.C.S. § 9541 et
     seq….3 On August 11, 2016, [Appellant] filed a pro se Writ of
     Habeas Corpus. Counsel was appointed to represent him and on
     March 5, 2017, counsel filed a no-merit letter. On March 13, 2017,
     [Appellant] filed a Motion for Appointment of New Counsel, which
     this [c]ourt denied on April 11, 2017.
        3 [Appellant]’s petition consists of “stream of consciousness”
        prose which is disjointed and hard to understand. Although
        [Appellant] numbered his claims, many of those numbered
        claim[s] contain more than one issue.

            Following this [c]ourt’s careful review of the entire record,
     including the transcripts of [Appellant]’s trial, all of [Appellant]’s
     filings, counsel’s no-merit letter, and the applicable law, this
     [c]ourt determined that the claims raised by [Appellant] lacked
     merit and that he was not entitled to an evidentiary hearing.
     Consequently, on April 11, 2017, this [c]ourt sent [Appellant] a
     Pa.R.Crim.P. 907 Notice of Intent to Dismiss[,] to which
     [Appellant] filed a response on April 24, 2017. On May 16, 2017,
     after again reviewing the entire record and determining that the

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       issues [Appellant] raised all lacked merit, this [c]ourt issued an
       order dismissing [Appellant]’s PCRA petition without a hearing and
       permitting PCRA counsel to withdraw. The [c]ourt also denied
       [Appellant]’s motion for the appointment of new PCRA counsel.
       [Appellant] thereafter filed a notice of appeal and a requested
       Pa.R.A.P. 1925(b) statement.

PCO at 1-2.

       Appellant’s seven-page Rule 1925(b) statement presented nine issues

for our review. However, in his appellate brief, he states only the following,

single issue:

       I.     Did the PCRA court err or abuse its discretion in failing to
              grant Appellant the relief requested in his pro se PCRA
              petition and discharge him and release him from custody or
              appoint new counsel to conduct a thorough investigation
              and file an amended PCRA petition based on the issues
              raised in the pro se PCRA petition and/or based on the issues
              set forth herein [that] Appellant discovered upon review of
              the trial transcripts during the remand?

Appellant’s Brief at 3.1

       In the Argument section of Appellant’s brief, he divides his single issue

into two sub-claims, which we paraphrase as follows: (1) Appellant’s PCRA

counsel erred by concluding there is no merit to Appellant’s claim that he is

entitled to a new trial, or a judgment of acquittal, based on the ineffectiveness

of his trial counsel, who did nothing when the jury announced, at the end of

trial, that Appellant was not guilty of third-degree murder; and (2) Appellant

____________________________________________


1The remand Appellant mentions appears to refer to this Court’s August 14,
2017 order granting his pro se “Motion for Emergency Order and Stay Pending
Disposition Of Hearing.” In that order, we remanded Appellant’s case to the
PCRA court for 60 days, during which time the court was to provide Appellant
with copies of any requested transcripts or documents that the court deemed
necessary. See Per Curiam Order, 8/14/17.

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is entitled to have the PCRA court’s order denying his petition vacated, and

his case remanded for the appointment of new counsel, where his initial PCRA

counsel and the court erred in concluding that the other issues raised in

Appellant’s pro se petition are meritless. See Appellant’s Brief at 14, 15-16.

      Before addressing Appellant’s arguments, we note that our standard of

review regarding an order denying post-conviction relief under the PCRA is

whether the determination of the court is supported by the evidence of record

and is free of legal error. Commonwealth v. Ragan, 923 A.2d 1169, 1170

(Pa. 2007). This Court grants great deference to the findings of the PCRA

court, and we will not disturb those findings merely because the record could

support a contrary holding. Commonwealth v. Touw, 781 A.2d 1250, 1252

(Pa. Super. 2001).

      In Appellant’s first sub-claim, he alleges that at the end of his trial, the

jury announced that he was not guilty of third-degree murder. According to

Appellant, the trial court responded by stating, “you can’t do that, you must

be confused,” and the court purportedly told the jury “you need to go back

and think some more….” Appellant’s Brief at 14. Appellant claims that the

jury returned to its deliberations, and ultimately convicted him of the murder

offense.     Appellant argues that his trial counsel was ineffective for not

objecting or requesting a mistrial when this transpired, and he also maintains

that his PCRA counsel was ineffective for concluding that this issue has no

merit.     Additionally, Appellant stresses that, attached to his petition, he

included “a sworn affidavit from his sister, Marilyn Cook, stating that she

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witnessed the jury foreperson announce that Appellant was found not guilty

of all charges,” yet “PCRA counsel failed to investigate trial counsel, the

prosecutor, Appellant’s sister and/or the jurors, and the PCRA court failed to

direct PCRA counsel to investigate them regarding the not guilty issue or

appoint new counsel to investigate [the] same….” Id. at 14-15.

      In rejecting this claim, the PCRA court reasoned:

            [Appellant]’s tenth claim asserts that trial counsel failed to
      object and move for an acquittal or a mistrial because the jury
      foreman announced a verdict of not guilty on the charge of third-
      degree murder. [Appellant] presented an affidavit from a relative
      wherein the relative averred that she heard the foreman announce
      a verdict of not guilty. Relatedly, [Appellant] contends that the
      transcript is incorrect as it does not contain everything that was
      said when the jury allegedly acquitted him of the crime of third-
      degree murder.

            Relief was denied with respect to this claim because the
      record does not support [Appellant]’s assertion.        After jury
      deliberations commenced, the jurors sent out a request that
      appeared to request that they be re-instructed, inter alia, on
      malice and voluntary manslaughter. (N.T. 7/13/10, 13-14). In
      an effort to ascertain exactly what the jury was requesting, this
      [c]ourt asked the foreperson, “How about third degree?” In
      response, the foreperson said, “With innocence, yes, not guilty.
      Not guilty, right.” (N.T. 7/13/10, 14). The foregoing clearly
      demonstrates that the jury had not reached a verdict and that the
      foreperson, as spokesperson for the jury, was simply clarifying the
      legal terms upon which it needed further instruction. In fact,
      following the giving of the requested supplemental instructions,
      the jury rendered its verdict and each juror stood by the verdict
      when each of them was polled. (N.T. 7/13/10, 28-30).

            With regard to the contention that there is an omission in
      the record, there is no evidence to support the claim other than
      [Appellant]’s bald assertion. Had the jury found [Appellant] not
      guilty[,] it is beyond belief that this [c]ourt, the prosecutor, and
      defense counsel all would have ignored the pronouncement and
      not said something. The fact is that the transcript accurately


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      reflects what occurred in court and any claim that it does not is
      preposterous. Given the foregoing, it is clear that [Appellant]’s
      assertion that he was acquitted was erroneous and that trial
      counsel had no ground upon which to move for an acquittal or a
      mistrial.

PCO at 15-16.

      The record supports the PCRA court’s conclusion that the jury did not

acquit Appellant of third-degree murder, nor any of the other offenses with

which he was charged. Therefore, we discern no error in the court’s rejecting

Appellant’s claim to the contrary.

      In Appellant’s next issue, he argues, generally, that his PCRA counsel,

and the PCRA court, erred by concluding that the other issues presented in his

pro se petition are meritless. However, Appellant offers no specific discussion

of those issues, nor citation to any legal authority that would demonstrate

their merit. Notably, the PCRA court set forth a thorough review of each of

Appellant’s claims in its Rule 1925(a) opinion, and it discussed why they are

meritless. See id. at 5-19. Nevertheless, Appellant does not identify how the

court erred, or why the record does not support the court’s decision to deny

his petition. Consequently, he has failed to demonstrate any basis for this

Court to disturb the PCRA court’s order.

      Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/26/18




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