Com. v. Manley, L.

• Court: Superior Court of Pennsylvania
• Decided: February 9, 2015
• Docket: 3030 EDA 2013
• Status: Unpublished

Opinion

J-S77013-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v.

LEVON MANLEY

Appellant No. 3030 EDA 2013

Appeal from the PCRA Order October 3, 2013 In the Court of Common Pleas of Philadelphia County Criminal Division at No: CP-51-CR-0501841-2006

BEFORE: STABILE, JENKINS, and STRASSBURGER,* JJ.

MEMORANDUM BY STABILE, J.: FILED FEBRUARY 09, 2015

Levon Manley appeals pro se from an order dismissing his first petition

under the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-46. We

affirm.

On February 3, 2006, Appellant assaulted Taaqi Brown in the

Germantown neighborhood of Philadelphia. Appellant fired six shots at

Brown with a handgun, hitting Brown five times and permanently disabling

him. PCRA Court Rule 1925(a) Opinion, 4/8/14, at 2-3. Appellant later told

a cellmate he attacked Brown in retaliation for the killing of Appellant’s

friend, “Spinach.” Id. At trial, Appellant claimed an alibi, which the jury

rejected, convicting Appellant of attempted murder, aggravated assault, and

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* Retired Senior Judge assigned to the Superior Court. J-S77013-14

related offenses. Appellant was later sentenced to an aggregate of 18 to 36

years in prison. This Court affirmed the judgment of sentence in a published

opinion, finding Appellant’s issues waived or meritless. Commonwealth v.

Manley, 985 A.2d 256 (Pa. Super. 2009), appeal denied, 996 A.2d 491 (Pa.

2010).

Appellant timely filed a PCRA petition pro se. The PCRA court

appointed counsel, who filed a Turner/Finley1 no-merit letter. The PCRA

court granted counsel’s petition to withdraw and dismissed Appellant’s

petition without a hearing, after providing proper notice under

Pa.R.Crim.P. 907. Appellant appealed pro se.

Appellant presents three issues for our review:

1. Did not the trial Court Defence [sic] Attorney and Appellate Process deny the defendant Equal Protection, Due Process, and Fundamental Fairness due to the nature of charges by ignoring, confusing, and misstating the issue of Counsel’s ineffectiveness by not investigating defendant’s alibi witnesses and the identification and witnesses against defendant?

2. Was not all previous lawyers in this matter ineffective for not seeking a mental evaluation of [Appellant]?

3. Was PCRA Counsel ineffective for not investigating the source and information given to him by the defendant concerning the Complainant?

1 Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).

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Appellant’s Brief at 3.2

We review a court’s order denying post-conviction relief to “determine

whether [its] determination . . . is supported by the evidence of record and

is free of legal error. The PCRA court’s findings will not be disturbed unless

there is no support for the findings in the certified record.”

Commonwealth v. Barndt, 74 A.3d 185, 191-92 (Pa. Super. 2013)

(internal quotations and citations omitted). Our scope of review is limited to

the PCRA court’s findings and the evidence of record viewed in the light most

favorable to the prevailing party. Commonwealth v. Weatherill, 24 A.3d

435, 438 (Pa. Super. 2011).

Appellant raises claims of ineffective assistance of counsel.

To plead and prove ineffective assistance of counsel a petitioner must establish: (1) that the underlying issue has arguable merit; (2) counsel’s actions lacked an objective reasonable basis; and (3) actual prejudice resulted from counsel’s act or failure to act. Where the petitioner fails to meet any aspect of this test, his claim fails.

Commonwealth v. Henkel, 90 A.3d 16, 30 (Pa. Super. 2014) (en banc)

(internal quotation and quotation marks omitted).

We find Appellant’s first issue meritless, as PCRA counsel’s

Turner/Finley letter demonstrates. PCRA counsel interviewed trial counsel,

2 Our review of Appellant’s issues is frustrated by the deficiencies in his brief, which fails to conform to numerous requirements of the Rules of Appellate Procedure. Nevertheless, to the extent we can, we will review the issues raised.

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who subpoenaed three alibi witnesses for trial: Ikea Scott, Rashaad

McIntyre, and Issa Williams. Turner/Finley Letter, 7/9/13, at 8-9. Scott

refused to honor the subpoena because she did not want to disclose a prior

forgery conviction. Id. Trial counsel did not call McIntyre because she

considered his testimony potentially damaging to the defense. Id. Williams

actually testified at trial. See Manley, 985 A.2d at 260. An ineffectiveness

claim fails where there is a reasonable basis for counsel’s actions, which

applies to Scott and McIntyre. Appellant does not explain how trial counsel

could be deemed ineffective regarding Williams, whose testimony the jury

heard and rejected.

In his second issue, Appellant claims ineffectiveness of all prior counsel

for failing to seek a mental health evaluation. Appellant did not raise this

issue before the PCRA court, and a litigant cannot raise issues for the first

time on appeal. Pa.R.A.P. 302(a); Commonwealth v. Paddy, 15 A.3d 431,

466 n.21 (Pa. 2011) (“We cannot consider issues not raised in the PCRA

court.”). Therefore, we cannot review this issue.

In his final issue, Appellant raises the ineffectiveness of PCRA counsel

for allegedly not properly investigating claims relating to trial counsel’s

ineffectiveness. Appellant also raises this issue for the first time on appeal.

We cannot address this issue, as this Court recently clarified that claims “of

PCRA counsel’s ineffectiveness may not be raised for the first time on

appeal.” Henkel, 90 A.3d at 20.

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In sum, Appellant fails to raise any reversible error committed by the

PCRA court.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 2/9/2015

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