Com. v. DeJesus, D.

• Court: Superior Court of Pennsylvania
• Decided: March 18, 2020
• Docket: 1877 EDA 2019
• Status: Unpublished

Opinion

J. S06037/20

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA v. : : DANILO DeJESUS, : No. 1877 EDA 2019 : Appellant :

Appeal from the Order Entered June 19, 2019, in the Court of Common Pleas of Lehigh County Criminal Division at No. CP-39-CR-0004319-2014

BEFORE: LAZARUS, J., McLAUGHLIN, J., AND FORD ELLIOTT, P.J.E.

MEMORANDUM BY FORD ELLIOTT, P.J.E.: Filed: March 18, 2020

Danilo DeJesus appeals pro se from the June 19, 2019 order dismissing

his petition filed pursuant to the Post Conviction Relief Act (“PCRA”),

42 Pa.C.S.A. §§ 9541-9546. After careful review, we affirm.

The relevant facts of this case are not necessary to our disposition on

appeal and need not be reiterated here. The pertinent procedural history of

this case, as gleaned from the certified record, is as follows: On May 22,

2015, a jury found appellant guilty of two counts of possession with intent to

deliver a controlled substance and one count each of possession of a controlled

substance and criminal conspiracy.1 On June 23, 2015, the trial court

sentenced appellant to an aggregate term of 5 years and 10 months to

1 35 P.S. §§ 780-113(a)(30), (a)(16), and 18 Pa.C.S.A. § 903(c), respectively. J. S06037/20

20 years’ imprisonment. On August 3, 2016, a panel of this court affirmed

appellant’s judgment of sentence, and our supreme court denied allowance of

appeal on January 31, 2017. See Commonwealth v. DeJesus, 156 A.3d

327 (Pa.Super. 2016) (unpublished memorandum), appeal denied, 165 A.3d

900 (Pa. 2017). Appellant did not file a petition for writ of certiorari with the

Supreme Court of the United States.

On May 16, 2017, appellant filed a timely pro se PCRA petition, and the

PCRA court appointed counsel2 to represent him. PCRA counsel subsequently

filed a “no merit” letter and petition to withdraw in accordance with

Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and Commonwealth

v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc). Following a hearing,

the PCRA court granted PCRA counsel permission to withdraw on

September 27, 2017. On November 15, 2017, the PCRA court provided

appellant with notice of its intention to dismiss his petition without a hearing,

pursuant to Pa.R.Crim.P. 907(1). Appellant filed a pro se response to the

PCRA court’s Rule 907 notice on December 1, 2017, requesting various

transcripts. Thereafter, on January 2, 2018, the PCRA court dismissed

appellant’s petition without a hearing.

2 The PCRA court initially appointed Matthew J. Rapa, Esq., to represent appellant, but upon notification from Attorney Rapa that he previously represented appellant’s co-defendant, the PCRA court appointed Alfred Stirba, IV, Esq. (hereinafter, “PCRA counsel”).

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On December 24, 2018, a panel of this court reversed the PCRA court’s

order and remanded with instructions that the PCRA court provide appellant

with copies of his requested transcripts. See Commonwealth v. DeJesus,

203 A.3d 343 (Pa.Super. 2018) (unpublished memorandum at *3). The PCRA

court subsequently provided appellant with the aforementioned transcripts

and filed its Rule 907 notice of its intention to dismiss his petition on

January 4, 2019. Appellant filed a pro se response to the PCRA court’s

Rule 907 notice on February 7, 2019, reiterating the claims he raised in his

PCRA petition. Thereafter, on June 19, 2019, the PCRA court dismissed

appellant’s petition without a hearing. This timely appeal followed.3

Appellant raises the following issue for our review:

Did the PCRA Court err in dismissing and denying [appellant’s] PCRA petition was [sic] without merit?

Appellant’s brief at 1.4

Proper appellate review of a PCRA court’s dismissal of a PCRA petition

is limited to the examination of “whether the PCRA court’s determination is

supported by the record and free of legal error.” Commonwealth v. Miller,

102 A.3d 988, 992 (Pa.Super. 2014) (citation omitted). “This Court grants

3 The PCRA court did not order appellant to file a concise statement of errors complained of on appeal, in accordance with Pa.R.A.P. 1925(b). The PCRA court filed an opinion in support of its order denying appellant’s petition on June 19, 2019.

4 We note that a portion of appellant’s pro se brief does not contain pagination; for the ease of our discussion, we have assigned each page a corresponding number.

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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. Patterson, 143 A.3d 394, 397 (Pa.Super. 2016) (citation

omitted). When the PCRA court denies a petition without an evidentiary

hearing, as is the case here, we “examine each issue raised in the PCRA

petition in light of the record certified before [us] in order to determine if the

PCRA court erred in its determination that there were no genuine issues of

material fact in controversy and in denying relief without conducting an

evidentiary hearing.” Commonwealth v. Wah, 42 A.3d 335, 338 (Pa.Super.

2012) (citations omitted). Additionally, we note that, “[a]lthough this Court

is willing to liberally construe materials filed by a pro se litigant . . . any

person choosing to represent himself in a legal proceeding must, to a

reasonable extent, assume that his lack of expertise and legal training will be

his undoing.” Commonwealth v. Vurimindi, 200 A.3d 1031, 1037

(Pa.Super. 2018) (citations omitted), appeal denied, 217 A.3d 793 (Pa.

2019).

Although not presented in his statement of questions involved, the crux

of appellant’s first argument on appeal is that his PCRA counsel rendered

ineffective assistance in failing to argue that his trial counsel5 was ineffective

for: failing to file a motion to suppress contraband found in the trunk of a

vehicle in which appellant was a passenger; failing to properly challenge

5 Robert Lang, Esq., represented appellant at trial.

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appellant’s co-defendants during cross-examination and argue his actual

innocence; failing to introduce evidence that appellant’s co-defendant

perjured himself; and failing to properly object to the testimony of a

confidential informant. (Appellant’s brief at 2-3; see also “Response to Notice

of Intent to Dismiss,” 2/7/19 at 1-14.)

Generally, to plead and prove ineffective assistance of counsel, a

petitioner must establish “first that the underlying claim has arguable merit;

second, that counsel had no reasonable basis for his action or inaction; and

third, that [he] was prejudiced.” Commonwealth v. Charleston, 94 A.3d

1012, 1020 (Pa.Super. 2014) (citation omitted), appeal denied, 104 A.3d

523 (Pa. 2014). Where petitioner raises a layered ineffectiveness claim, as is

the case here, “he must properly argue each prong of the three-prong

ineffectiveness test for each separate attorney.” Commonwealth v. Rykard,

55 A.3d 1177, 1190 (Pa.Super. 2012) (citations omitted), appeal denied, 64

A.3d 631 (Pa. 2013).

In determining a layered claim of ineffectiveness, the critical inquiry is whether the first attorney that the defendant asserts was ineffective did, in fact, render ineffective assistance of counsel. If that attorney was effective, then subsequent counsel cannot be deemed ineffective for failing to raise the underlying issue.

Id. (citations, internal quotation marks, and brackets omitted).

Here, the record reflects that appellant’s brief fails to discuss or even

cite the three-pronged ineffectiveness test. This court has long recognized

that “an underdeveloped argument, which fails to meaningfully discuss and

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apply the standard governing the review of ineffectiveness claims, simply does

not satisfy [a]ppellant’s burden of establishing that he is entitled to relief.”

Commonwealth v. Bracey, 795 A.2d 935, 940 n.4 (Pa. 2001). The record

further reflects that appellant’s brief is devoid of any citations to relevant legal

authority and makes only scant reference to the notes of testimony, in

violation of Pa.R.A.P. 2119(b) and (c). Accordingly, we find that appellant’s

layered ineffectiveness claims are not properly developed and are waived.

See Commonwealth v. Gibbs, 981 A.2d 274, 281 (Pa.Super. 2009) (finding

claim waived where appellant’s argument is underdeveloped and fails to

develop argument supported by legal authority), appeal denied, 3 A.3d 670

(Pa. 2010).

We now turn to appellant’s bald contention that the PCRA court erred in

dismissing his petition without conducting an evidentiary hearing. (See

appellant’s brief at 4.) We disagree. This court has long recognized that there

is no absolute right to an evidentiary hearing. Commonwealth v. Hart, 911

A.2d 939, 941 (Pa.Super. 2006) (citation omitted). Rather, “[i]t is within the

PCRA court’s discretion to decline to hold a hearing if the petitioner’s claim is

patently frivolous and has no support either in the record or other evidence.”

Wah, 42 A.3d at 338 (citations omitted).

To the extent appellant challenges, albeit parenthetically, the weight of

the evidence supporting his convictions (see appellant’s brief 6-7), we note

that this claim is not cognizable on collateral review.

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It is well settled that allegations of error that have been either previously

litigated or waived are not cognizable under the PCRA. Commonwealth v.

Spotz, 47 A.3d 63, 101 (Pa. 2012); see also 42 Pa.C.S.A. § 9543(a)(3). The

PCRA defines a matter as having been previously litigated when “the highest

appellate court in which the petitioner could have had review as a matter of

right has ruled on the merits of the issue.” 42 Pa.C.S.A. § 9544(a)(2). “[T]he

fact that a petitioner presents a new argument or advances a new theory in

support of a previously litigated issue will not circumvent the previous

litigation bar.” Commonwealth v. Roane, 142 A.3d 79, 94 (Pa.Super. 2016)

(citations omitted).

Here, appellant previously challenged the weight of the evidence on

direct appeal, and a panel of this court found this claim devoid of merit. See

Commonwealth v. DeJesus, 156 A.3d 327 (Pa.Super. 2016) (unpublished

memorandum at *3-4), appeal denied, 165 A.3d 900 (Pa. 2017).

Accordingly, appellant is not entitled to relief on this issue.

Likewise, appellant’s contention that the sentencing court failed to

consider various mitigating factors in fashioning his sentence (see appellant’s

brief at 5) is a discretionary sentencing claim and is not cognizable under the

PCRA. See Commonwealth v. Fowler, 930 A.2d 586, 593 (Pa.Super. 2007)

(stating, “[c]hallenges to the discretionary aspects of sentencing are not

cognizable under the PCRA.” (citation omitted)), appeal denied, 944 A.2d

756 (Pa. 2008).

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For all the foregoing reasons, we discern no error on the part of the

PCRA court in dismissing appellant’s petition without conducting an

evidentiary hearing.

Order affirmed.

Lazarus, J. joins this Memorandum.

McLaughlin, J. concurs in the result.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 3/18/20

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