J-S53010-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee
v.
GARY PALMER,
Appellant No. 1028 EDA 2016
Appeal from the PCRA Order Entered March 4, 2016 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0204941-2006 CP-51-CR-1100971-2005
BEFORE: BENDER, P.J.E., OLSON, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY BENDER, P.J.E.: FILED OCTOBER 11, 2017
Appellant, Gary Palmer, appeals from the post-conviction court’s March
4, 2016 order denying his timely-filed petition under the Post Conviction
Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. After careful review, we affirm
in part, reverse in part, vacate Appellant’s judgment of sentence, and
remand to the PCRA court for resentencing.
Briefly, Appellant was charged in two separate cases with various
offenses stemming from a string of robberies and a shootout with police
before they took Appellant into custody for those robberies. Appellant’s
cases were consolidated and proceeded to a jury trial in May of 2007. At the
close thereof, the jury convicted Appellant of multiple crimes, including
robbery, theft by unlawful taking, aggravated assault, simple assault, J-S53010-17
recklessly endangering another person, terroristic threats, possessing an
instrument of crime, possession with intent to deliver a controlled substance,
and several firearm offenses. Appellant was ultimately sentenced August 7,
2007, to an aggregate term of 11 to 22 years’ incarceration, followed by 6
years’ probation.
Appellant filed a timely direct appeal, but due to procedural matters
not pertinent herein, it was not until November 30, 2012, that this Court
affirmed his judgment of sentence. Commonwealth v. Palmer, 63 A.3d
841 (Pa. Super. 2012) (unpublished judgment order). On May 2, 2013, our
Supreme Court denied Appellant’s petition for allowance of appeal.
Commonwealth v. Palmer, 67 A.3d 795 (Pa. 2013). Therefore, his
judgment of sentence became final ninety days thereafter, or on July 31,
2013. See 42 Pa.C.S. § 9545(b)(3) (stating that a judgment of sentence
becomes final at the conclusion of direct review or the expiration of the time
for seeking the review); Commonwealth v. Owens, 718 A.2d 330, 331
(Pa. Super. 1998) (directing that under the PCRA, petitioner’s judgment of
sentence becomes final ninety days after our Supreme Court rejects his or
her petition for allowance of appeal since petitioner had ninety additional
days to seek review with the United States Supreme Court).
Appellant filed a timely, pro se PCRA petition on December 20, 2013.
Counsel was appointed and filed several amended petitions on Appellant’s
behalf over the ensuing years. On February 3, 2016, the PCRA court issued
a Pa.R.Crim.P. 907 notice of its intent to dismiss Appellant’s petition, and
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issued an order doing so on March 4, 2016. Appellant filed a timely notice of
appeal, and he also timely complied with the PCRA court’s order to file a
Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal. The
PCRA court filed a Rule 1925(a) opinion on January 31, 2017.
Herein, Appellant presents two issues for our review:
1. Did the [PCRA] [c]ourt err in failing to grant discovery and dismissing the PCRA petition without holding an evidentiary hearing to determine the substantial issues of material fact?
2. Was counsel ineffective for failing to object to the prosecutor’s falsely using firearms recovered in the police shooting incident to convict [] Appellant on the robberies, for failing to object to the consolidation of the cases, for failing to raise a speedy trial issue and for failing to object to [] Appellant’s mandatory minimum sentence[?]
Appellant’s Brief at 10.
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).
We will begin by addressing Appellant’s claim that his trial and
appellate counsels acted ineffectively by not challenging the legality of two
mandatory minimum sentences imposed in this case. Appellant argues that
those sentences were rendered illegal by the United States Supreme Court’s
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decision in Alleyne v. United States, 133 S.Ct. 2151, 2163 (2013) (holding
that “facts that increase mandatory minimum sentences must be submitted
to the jury” and found beyond a reasonable doubt). Specifically, Appellant
received mandatory minimum sentences under 42 Pa.C.S. §§ 9712
(Sentences for offenses committed with firearms) and 9712.1 (Sentences for
certain drug offenses committed with firearms). Both of these sentencing
statutes have been declared unconstitutional under Alleyne. See
Commonwealth v. Newman, 99 A.3d 86 (Pa. Super. 2014) (en banc)
(holding that 42 Pa.C.S. § 9712.1 is unconstitutional under Alleyne);
Commonwealth v. Valentine, 101 A.3d 801 (Pa. Super. 2014) (declaring
42 Pa.C.S. § 9712 unconstitutional under Alleyne).
While Appellant frames his sentencing challenge as an ineffectiveness
claim, we will simply review the legality of his mandatory minimum
sentences directly, as we are permitted to raise such issues sua sponte.
See Commonwealth v. Orellana, 86 A.3d 877, 882-83 n.7 (recognizing
“that this Court is endowed with the ability to consider an issue of legality of
sentence sua sponte”) (citation omitted).
Preliminarily, Appellant recognizes that our Supreme Court has held
that Alleyne does not apply retroactively to collateral attacks on mandatory
minimum sentences. See Appellant’s Brief at 27 (citing Commonwealth v.
Washington, 142 A.3d 810 (Pa. 2016)); see also Commonwealth v.
Riggle, 119 A.3d 1058 (Pa. Super. 2015) (declining to give Alleyne
retroactive effect to cases where a timely PCRA petition was filed and the
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petitioner’s judgment of sentence was finalized before Alleyne was
decided). However, Appellant avers, and we agree, that Washington and
Riggle are distinguishable from the present case. Notably, in both
Washington and Riggle, the petitioners’ judgments of sentence became
final before Alleyne was decided on June 17, 2013. In contrast, here,
Appellant’s judgment of sentence became final on July 31, 2013, after
Alleyne was issued. In another case with a similar procedural posture,
Commonwealth v. Ruiz, 131 A.3d 54 (Pa. Super. 2015), this Court held
that Alleyne may be applied retroactively to a timely PCRA petitioner, as
long as the petitioner’s judgment of sentence was not yet final when
Alleyne was decided. Id. at 59-60. See also Newman, 99 A.3d at 90
(holding that Newman’s case “was still pending on direct appeal when
Alleyne was handed down, and the decision may be applied to [Newman’s]
case retroactively”) (footnote omitted).
As in Ruiz and Newman, here, Appellant’s judgment of sentence was
not final when Alleyne was decided. Therefore, as the PCRA court now
recognizes, and the Commonwealth concedes, “Alleyne applies directly to
[Appellant], because his judgments of sentence were not yet final when the
decision was announced.” Commonwealth’s Brief at 28 (citing Ruiz,
supra); PCRA Court Opinion (PCO), 1/31/17, at 8 (stating that Appellant’s
“[j]udgment of [s]entence did not become final until July 31, 2013, well after
Alleyne was decided, rendering his sentence illegal”). Accordingly,
Appellant’s mandatory minimum sentences are illegal pursuant to Alleyne,
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and we must vacate his judgment of sentence and remand for resentencing,
without imposition of those mandatory minimum terms of incarceration.
In regard to Appellant’s other issues, we have reviewed the briefs of
the parties, the certified record, and the applicable law. Additionally, we
have reviewed the thorough opinion of the Honorable Charles J.
Cunningham, III, of the Court of Common Pleas of Philadelphia County. We
conclude that Judge Cunningham’s well-reasoned opinion accurately
disposes of the remaining issues presented by Appellant. See PCO at 8-24.
Accordingly, we adopt that opinion as our own and affirm the denial of
Appellant’s issues (aside from his legality of sentence claim) for the reasons
set forth therein.
Order reversed in part, affirmed in part. Judgment of sentence
vacated. Case remanded for resentencing. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 10/11/2017
-6- Circulated 09/22/2017 09:50 AM
IRST JUDICIAL DISTRICT OF PENNSYLVANIA i
COU T OF COMMON PLEAS, CRIMINAL TRIAL DIVISION
COMMONWEI L TH OF PENNSYL v ANIA 1028 EDA 2016
v CP-51-CR-1100971-2005 CP-51-CR-0204941-2006
GARYPALM R (PCRA)
"''1\li'~\ITT!lii1I 7896074791 \iii. OPINION FILED JAN 31 2017
l Appeals/Post Trial · Office of Judicial Records
ST ATElVIENT , F THE CASE
Defendjt is appealing the Court's dismissal of his meritless pro se PCRA
Petition. After bcfcndant's convictions on the charges of Conuption of the Morals of a
Minor and Unlarful Contact with a Minor were sustained on direct appeal, he filed the
instant PCRA Aetition alleging ineffectiveness assistance of trial counsel. The Court
finds the senteice imposed on Defendant was rendered illegal by Commonwealtlt v.
Valentine, IO 1 t.3d 801, 809 (Pa. Super. 2014). The Court also finds that the remainder
of Defendant's cpmplaints are without merit. ! ! PROCEDURA'.L HISTORY
On MaJ 29, 2007, at the conclusion of his jury trial before the Honorable Willis
W. Berry, lL 1efe~dant was found guilty on numerous related c~a.-gesof robbery, theft,
assault, drug and firearms violations. On August 2, 2007, Judge Berry, sentenced
.Defendant to J aggregate period of confinement of 11 to 22 years followed by 6 years'
probation. Derlndant did not file post sentence motions. .
On Auglst 31, 2007, Defendant timely filed a direct appeal to the Superior Court
of Pennsylvani at 2192 EDA 2007. By order dated May 14, 2008, Defendant's appeal
was dismissed or "failure to file brief." On July 9, 2008, Defendant filed a timely pro se
PCRA Petition pursuant to 42 Pa.C.S.A. §9541, et.· seq., seeking reinstatement of his
appellate right . On November 30, 2010, Judge Berry reinstated Defendant's direct
appeal rights. n May 12, 2010, Defendant timely filed a direct appeal to the Superior
Court of Penns. lvania at 3444 EDA 2010. By order dated November 30, 2012, finding
Defendant's c aims were waived, his convictions and sentences were affirmed.
Defendant's pe ition for allowance of appeal to the Supreme Court of Pennsylvania was
denied on May , 2013.
On Dec mber 20, 2013, Defendant timely filed the instant pro se PCRA Petition.
On July 1, 2014, Matthew J. Wolfe, Esq., was appointed as counsel to represent
Defendant for he purposes of his PCRA Petition. On September 9, 2015, Mr. Wolfe
filed a counsel d PCRA petition and memorandum of law on Defendant's behalf. Mr.
Wolfe has sine filed two additional amended PCRA petitions, raising additional claims.
On November p, 2015, the Commonwealth filed its initial motion and a brief to dismiss
Defendant's P¢RA petition of its motion. The Commonwealth has since filed two
2 addition motio s and briefs to dismiss. On April 11, 2015, Defendant filed his brief in
opposition to tie Commonwealth's motion to dismiss.
On Feb uary 3, 2016, after a hearing and a careful review of the record, the Court
issued its notice, pursuant to the Pennsylvania Rules of Criminal Procedure
(Pa.R.C1:im.P.) Rule 907, advising Counsel and Defendant that it intended to dismiss
Defendant's prtion within twenty days of issuance. On February 26, 2016, Defendant
filed a prose response to the Court's Rule 907 notice. On February 3, 2016, the Court,
after a hearing, entered an Order dismissing Defendant's PCRA Petition as being without
merit.
On Ma ch 30, 2016, Defendant timely filed the instant appeal to the Superior
Court of Penns lvania. On April 12, 2016, this Court filed and served on Defendant an
Order pursuan to Rule 1925(b) of the Pennsylvania Rules of Appellate Procedure,
directing Defer dant to file and serve a Statement of Errors Complained of on Appeal,
within twenty" ne days of the Court's Order. On May 30, 2016, Defendant filed his
Statement of E ors Complained of on Appeal.
In his S atement of Errors, Defendant raises twenty issues, namely:
1. "Th· Lower Court erred in failing to grant the Appellant's PCRA Petition und r the following grounds: I l) The Commonwealth, in an unprecedented action, has thus far withdrawn prosecution hundreds of cases involving Police Officers Michael E. Spicer, Thomas Liciardelli, Brian P. Reynolds, Perry Betts and Brian Speiser and Lt Robert Otto. The officers were arrested and charges with corruption. Officer Michael Spicer testified as expert witness at trial in this matter and his corrupt practices were unknown to the Petitioner or his counsel. (N.T. 5/25/07 p. 6"20) Officer Michael Spicer's testimony was essential to the Petitioner's conviction.
3 15) Petitioner was denied his rights to due process and effective counsel, under the laws and Constitutions of the United States and Pennsylvania, as the honesty and credibility of this corrupt police officer was not revealed to the jury and cannot be trustworthy. 6) The trial court consolidated the two cases (CP-51-CR-0204941- 2006 and CP-51-CR~ll00971-2005) in error as it was prejudicial to the Petitioner. Trial counsel was ineffective for failing to object to said consolidation at trial. Petitioner was denied his rights to due process and effective counsel, under the laws and Constitutions of the United States and Pennsylvania, as counsel was ineffective for failing to object to the consolidation of the cases. ( ) The Petitioner's trial was delayed in violation of the Rules of Criminal Procedure and his Constitutional right to a speedy trial.
r Trial counsel was ineffective for failing to move for. dismissal pursuant to Rule 600 of the Pennsylvania· Rules of Criminal Procedure and on Constitutional speedy trial grounds. ( 1) Petitioner was denied his rights to due process and effective counsel, under the laws and Constitutions of the Unites States of Pennsylvania, as counsel was ineffective for failing to move for dismissal pursuant to Rule 600 of the Pennsylvania Rules of Criminal Procedure and 011 Constitutional speedy trial grounds. ( 2) The Petitioner was charged and convicted of a robbery that was carried out with a black gun. When he was arrested the police recovered two silver guns. At trial the prosecutor alleged that the silver guns were used in the robbery without objection from the Petitioner's trial counsel. Likewise, counsel failed to object when the Court instrncted the jury incorporating the prosecutor's argument. Trial counsel was ineffective for failing to object to the prosecutor's use of the recovered silver guns in the robbery case and the Court's instructions to the jury accepting the prosecutor's argument. ( 14) The prosecutor committed prosecutorial misconduct in arguing that the silver guns were used in the robbery case in spite of his own evidence to the contrary. Petitioner was denied his rights to due process and effective counsel, under the laws and Constitutions of the United States
4 ·'
and Pennsylvania, as counsel was ineffective for failing to object to the prosecutor's use of the silver guns in the robbery case and the judge's jury instructions, as well as the prosecutor's misconduct in doing so. ( 6) A mandatory sentence was imposed without the appropriate factors having been determined as an element of the underlying offense by the jury beyond a reasonable doubt. ( 7) Petitioner was denied his rights to due process and effective counsel, under the laws and Constitutions of the United States and Pennsylvania} as the Petitioner's counsel was ineffective for failing to raise the issue of the illegal sentence at trial or on direct appeal. ( 8) Said mandatory sentence was an illegal sentence.
2. The tower Court erred in failing to hold an evidentiary hearing to exan ine the charges against and evidence against Officer Spicer and to deter nine the timeliness of the appeal considering the Petitioner's know ledge of the evidence in this matter.
3. The ower Court erred in failing to grant the Appellant's discovery request pursuant to Pa.R.Cr.P. Rule l502(e) requesting that the court order the ±mmonwealth to turn over in discovery all documents and other infon ation which relate to the arrests of Officers Michael E. Spicer, Tho as Liciardello, Brian P. Reynolds, Perry Betts and Brian Speiser and Lt. Rte rt Otto."
Defendals statement of errors fall into four distinct areas. Defendant first
complains he i, entitled to a new trial as a result of after discovered evidence,
complaining his convictions rested on the tainted testimony Philadelphia Police Officer
Michael Spicer. Defendant next complaints trial counsel was ineffective for failing to
object to the co solidation of the charges against him, failing to seek dismissal of the
charges against hfm pursuant to Pa.R.Cr.P. Rule 600 and failing to objectto the entry into I '
evidence two hahd guns. Defendant further complains the imposition of the statutory !
mandatory minimum rendered his sentence illegal. Lastly, Defendant complains the !
5 Court erred in not holding an evidentiary hearing and not granting his motion for
, discovery prior Ito dismissing his PCRA petition. The Court will address the legality of
Defendant's seltence first. .
DISCUSSION F THE ISSUES RAISED
I. ANT'S SENTENCE IS ILLEGAL.
ln his s xteenth through eighteenth statement of errors, Defendant essentially
complains that 1 is "mandatory sentence was an illegal sentence." Although he raises two
additional issue relating to his complaints of ineffective assistance of counsel, these are
rendered moot, hallenging the legality of his sentence. The gravamen of Defendant's
complaint is his assertion that his aggregate sentence of 11 to 22 years of incarceration
was predicated upon the application of the mandatory sentencing provisions of 42
Pa.C.S.A. §9712i. He asserts that his sentence was rendered illegal Ab initio by the U. S.
Supreme Court f ecision of Alleyne v. United States, 133\J.S. _, 133 S.Ct. 2151, 186
L.Ed.2d 314 an its Pennsylvania progeny .. Initially, Defendant failed to fully develop
this argument, 1 ading the Court to initially agree with the incorrect assessment of the
Commonwealth that Defendant's complaint was without merit. However, on further
review of the rec rd, the Court agrees wi th Defendant.
Alleyne I eld that any predicate fact that triggers an increase in the mandatory
minimum scnten e for a crime is necessarily an element of the offense and that such fact
must be found ' beyond a reasonable doubt" by a jury. The Commonwealth, citing ! Commonwealth i"· Watley, 81 A.3d 108, l21 (Pa. Super. 2013), wrongly argues that
Watley held that the unconstitutional portion of §97 l 2(C) was severable and,
6 consequently, here a jury makes a separate determination relating to the predicate fact
triggering the imposition of a mandatory sentence, that sentence is not rendered illegal.
In addressing Alleyne, Watley stated, "[t]he Alleyne decision renders those
convictions co stitutionally infirm insofar as they permit a judge to automatically
increase a defer dant's sentence based on a preponderance of the evidence standard." Id.,
81 A.3d at 117 In Commonwealth v. Vale11tine, 101 A.3d 801, 809 (Pa. Super. 2014),
Pa.C.S.A. §971 ' were not severable, thus rendering §9712 unconstitutional on its face,
regardless of ho v the predicate fact is determined.
Defenda t's complaint falls into a very narrow range of post Alleyne decisions
concerning its retroactive application. Alleyne, was decided on June 17, 2013.
Subsequently, o tr Supreme Court held in Commonwealtli v. Newman, 99 A.3d 86 (Pa.
2014), that issues regarding the legality of a sentence are not waivable and that, in
Pennsylvania, Arleyne was to be applied retroactively only to those proceeding pending
at the time Alley te was decided.
As note above, Defendant's petition for allowance of appeal to our Supreme
Court was deni d on May, 2, 2013, more than a month prior to Alleyne. However, a
judgment of se itence "becomes final at the conclusion of direct review, including
discretionary review in the Supreme Court of the United States and the Supreme Court of
Pennsylvania, o · at the expiration of time for seeking the review." 42 Pa.C.S. §
9545(b)(3) Furthermore, the U.S. Supreme Court Rules provide in part at Rule 13(1); "A !' petition for a wrijt of certiorari seeking review of a judgment of a lower state court that is
7 subject to d iscrd tionary review by the state court of last resort is timely when it is filed
with the Clerk lwithin 90 days after entry of the order denying discretionary review."
Therefore, for !~he pmposes of 42 Pa.C.S. § 9545(b)(3), Defendant's Judgment of
Sentence did n t become final until July 31, 2013, well after Alleyne was decided,
rendering his sen tence illegal.
II. DEFEN ANT IS NOT ENTITLED TO A NEW TRIAL AS A RESULT OF
THE RIMINAL INVESTIGATION OF PHILADELPHIA POLICE
OFFIC i R MICHAEL SPICER.
In his fir t through fifth statement of errors, Defendant states that subsequent to
his trial and con ictions, Philadelphia Police Officer Michael E. Spicer was arrested and
charged with co 'ruption, resulting in withdrawal of the prosecution of cases involving
Officer Spicer b the Commonwealth. He further asserts that, since Officer "Spicer's
testimony was e. sential to" his convictions, this newly discovered evidence entitles him
to a new trial. D fondant's complaints are without merit.
To be a arded a new trial on his PCRA claim of after-discovered evidence,
Defendant must lead and prove that his conviction resulted from "[t]he unavailability at
the time of trial of exculpatory evidence that has subsequently become available and
would have chan ed the outcome of the trial if it had been introduced." 42 Pa.C.S.A. §
9543(a)(2)(vi) T at is, he must establish that; "(I) the evidence has been discovered after
trial and it could ot have been obtained at or prior to trial through reasonable diligence; I (2) the evidence i~ not cumulative; (3) it is not being used solely to impeach credibility; ! and (4) it would ljkely compel a different verdict." Commonwealth v. Washington, 927
A.2d 586, 595 (P&.2007) Furthermore, when it is clear that proffered "evidence" is to be
8 used solely to ilnpcach the credibility of a witness, it cannot warrant the granting of a
new trial. ComJ110mvea!th v. Bormack, 827 A.2d 503 (Pa. Super. 2003)
Defend{t's complaints fail for several reason. Firstly, he misstates the record, as
Officer Spicer's testimony was not "essential" to his convictions. Officer Spicer was not
present at or i volved in Defendant's arrest. At trial, Officer Spicer was qualified,
without objecti, n, as an "expert on possession with intent to deliver, packaging and
distribution of arcotics," merely testifying to the implications arising out of the drugs
recovered from efendant's person at the time of his arrest. (N.T., 5/25/07 pgs. 8-20)
Secondl the bald assertion that the Commo_nwealthhas withdrawn prosecution
of cases involvi g Officer Spicer amounts to unsupported hearsay and does not constitute
"new evidence.' The fact that the Commonwealth may have withdrawn unrelated cases
bears no correla ion to the charges against Defendant, nor can he draw such a correlation,
especially in li ht of Officer Spicer's peripheral involvement in prosecution to the
charges against efendant,
Furthen ore, the "fact" that the Commonwealth has withdrawn "prosecution of
cases involving' Officer Spicer, does not entitle Defendant to relief because, even if this
"fact" were adn issible at trial, the fact would only he admissible to impeach the Officer
Spicer's credibil ty. Defendant, in fact, concedes this point in his statement of errors, in
asserting that ti e relevance of any investigation of Officer Spicer simply impugns his
"honesty and er dibility."
9 III. ANT HAS FAILED TO MEET HIS BURDEN OF ISHING THAT PRIOR COUNSEL \VAS INEEFECTIVE AND I , THEREFORE, NOT ENTITLED TO RELIEF DUE TO INEFF I CTJVE ASSISTANCE OF COUNSEL.
Defenda t, in support of his primary complaint that the Court has abused · its
discretion by dirmissing his PCRA petition, raises ten averrnents alleging. ineffective
assistance of counsel. Defendant's complaints are without merit.
Defenda t in seeking PCRA relief on the grounds of ineffective assistance of
counsel must pl ad and establish by a "reasonable probability" that the outcome of his
trial would have been different but for counsel's ineffectiveness. The essence of a claim
of ineffective astistance of counsel is that counsel's unprofessional errors so upset the
adversarial balance between defense and prosecution that the trial was rendered unfair
and the verdict re idered suspect. Commonwealth v. Wantz, 84 A. 3d 324, 331 (Pa. 2014)
When the issue or the ineffectiveness of counsel is raised; "Counsel is presumed to have
been effective and the defendant has the burden of proving otherwise." Commonwealth
v. Tilley, 780 A.2, 649, 652 (Pa. 2001) Our Supreme Court, in Commonwealth v. Lesko,
15 A. 3d 345 (Pa 2011 ), reaffirmed its previously enunciated Strickland/Pierce! test,
which established that in order to prevail in his complaint that counsel was ineffective
Defendant must s tisfy a three prong test. That is, he must establish: «( 1) the underlying
claim has arguabl merit; (2) no reasonable basis existed for counsel's actions or failure
to act; and (3) petitioner suffered prejudice as a result of counsel's error such that there is I . a reasonable probrbility that the result of the proceeding would have been different
1 Strickland 11• Wasltiligto11, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L.Ed.2d 674 (1984); Commonwealtlt v. Pierce, 515 Pa. 153, 5~7 J\.2d 973, 975 ( 1987) . l
10 absent such err, r." Id., at 373 "With regard to the second, i.e., the reasonable basis
prong, we will , onclude that counsel's chosen strategy lacked a reasonable basis only if
Appellant prov s that an alternative not chosen offered a potential for success
substantially gr ater than the course actually pursued." Common wealth v. Spotz, 18
A.3d 244, 260 1Pa. 2011) (Internal citations and quotations omitted) When prejudice
cannot be pre urned, Defendant must plead and prove actual prejudice under
"Strickland," C mmon wealth v. Reaves, 923 A.2d 1119, 1127 (2007) "The Strickland
test for prejudic requires a showing of a reasonable probability that the outcome of
the ... proceeding ..... would have been different." Conunonwealtlt v. Daniels, 104 A.3d
267, 296-97 (Pa. 2014) A reasonable probability is a probability sufficient to undermine
confidence in the outcome." Commonwealth v. Spatz, Supra.
"A failur, to satisfy any prong of the test for ineffectiveness will require rejection
of the claim." cJmmomvealt/1 v. Watson, 835 A.2d 786, 793 (Pa. Super. 2003) Further-
more, "a court is not required to analyze the elements of an ineffectiveness claim in any
particular order l '
priority; instead, if a claim fails under any necessary element of the
Strickland test, the court may proceed to that element first. Les/co, at 374 "If it is clear
that Appellant ha not demonstrated that counsel's act or omission adversely affected the
outcome of the pr ceedings, the claim may be dismissed on that basis alone and the court
need not first c etermine whether the first and second prongs have been met."
Commonwealth v Albrecht, 554 Pa. 31, 46, 720 A.2d 693, 701 (1998)
The statuti°ry intent of the PCRA Act is to function as an extraordinary \
proceeding desigJect to provide relief to "persons convicted of crimes they did not ! I commit and serving illegal sentences" (42 Pa.C.S.A. 9542) It is not meant to function as l
11 a substitute for ;or a continuation of direct appellate rights. Therefore, in pursuing PCRA I I relief, applicants must establish through their pleading, sufficient grounds to justify the ! granting of relief. Consequently, claims of ineffectiveness are subject to specific I pleading and proof requirements under the PCRA act. "Mere boilerplate asser- 1 I I
tions arc inadequate to prove the effective denial of the right to counsel necessary to
warrant PCRA ~elief." Commonwealth v. Simmons, 804 A.2d 625, 639 (Pa. 2001)
Moreover, "[bJlilerplate allegations have never been sufficient to discharge this i
affirmative burden to rebut the presumption of effectiveness." Id. "Claims of
ineffect~ve assJanc~ of counsel are not self-proving; (an] undeveloped claim of I . ineffectiveness if insufficient to prove an entitlement to relief." Commonwealth v.
Jones, 127, 811 A.2d 994, 1003 (Pa. 2002) I i
i A. TRIAL qOUNSEL '\VAS NOT INEFFECTIVE IN FAILING TO OBJECT i TO THE fONSOLIDATION OF CASES AGAINST DEFENDANT.
In his sixth through eighth statement of errors, Defendant complains that trial !
counsel was inef~ective for failing to object "to the consolidation of the cases" against i him. Defendant's complaints are without merit. I
"Crimes cAarged in separate indictments may be tried together where the evidence I . of each of the olr:!nses would be admissible in a separate trial for the other and the
evidence is capable of separation by the jury so that there is no danger of confusion." I . Conunonwealth v.! Natividad, 773 A.2d 167, 174 (2001) (Internal citations omitted) In l addition. Pa.R.Cr.f. 582(A)( I )(a) provides in part that: "Offenses charged in separate ;
indictments or informations may be tried together if ... the evidence of each of the
12 offenses would ibe admissible in a separate trial for the other and is capable of separation
by the jury so that there is no danger of confusion ... " Our Supreme Court has held that
"the propriety o ... [the) consolidation of separate indictments" is "addressed to the sound
discretion of the trial court" and should only be reversed "for manifest abuse of discretion
or prejudice and clear injustice to the defendant." Commonwealth v. Lark, 518 Pa. 290,
301-302, 543 A 2d 491; 496 (Pa. 1988) (citing Commonwealth l', iv/orris, 493 Pa. 164,
425 A.2d 715 (P . 1981)
Evidence of other crimes is not admissible at trial to show a defendant's
propensity to cc mrnit crimes. Pa.R.E. · 404(b)(l) Such evidence· may. however, be
admissible for o her purposes such as proving "motive. opportunity, intent, preparation,
plan, knowledge, identity, absence of mistake, or lack of accident" so long as the
"probative value of the evidence outweighs its potential for unfair prejudice." Pa.R.E.
404(b)(2) In see ing to consolidate Bills of Information the Commonwealth must show
"more than the limes are of the same class" but rather that "a high correlation in the
details of the cri ies exists such that proof that the defendant committed one makes it
very unlikely that anyone else but the defendant committed the other." Commouwealtlt v.
Newman. 528 Pa 393, 399. 598 A.2d 275. 278 (Pa. ! 991) (citing Morris, 425 A.2d a1
721) This standald is intended to balance considerations of judicial economy against any
possible prejudice, to the defendant resulting from a consolidation of trials. Id.
Furthermof e, "evidence of other crimes may be relevant and admissible ... where
such evidence w~s part of the chain or sequence of events which became part of the I history of the cas9 and formed part of the natural development of the facts. This special ' circumstance, sometimes referred to as the "res gestae" exception to the general.
13 proscription ag' inst evidence of other crimes, is also known as the "complete story"
rationale, i.e., erdence of othe. 1' criminal acts is admb.sible "to complete the story of the
crime on trial l proving its immediate context of happenings near in time and place."
Lark, Supra. 54 A.2cl at 497 (Internal citations omitted)
In the in rant matter the proper balance was achieved.· The evidence linking the
crimes is clear, et each crime is distinguishable from the other.
At Defer dant's preliminary hearing, before the Honorable Marsha H. Neifield,
held on Octobe · 28, 2005, the Commonwealth; presented testimony, regarding four
separate compla nts,2 linking Defendant to four robberies, all occurring within a month of
each other and \ ithin blocks of each other. Defendant was identified as the assailant and
all four matters were bound over for trial at CP-51-CR-1100961-2005,3 CP-51-CR~
l 100971-20054 nd CP-51-CR-1100981-2005.5
At Defendant's second preliminary hearing held on February 13, 2006, before the
Honorable F ra1 J. lJrady, the Common wealth, presented, testim~ny, relating. to vari~us
weapons charges arising out Defendant's shootout with police. At this hearing
Philadelphia Pol ce Officer Malik Abdulhadi testified that July 12, 2005, he was in plain
clothes on patrol with his partner looking for an individual wanted in connection with a
recent string of robberies. (N.T., 2/13/06, pgs. 5, 6, 13) At approximately 12:00 a.m. in
the morning, he observed an individual, identified as Defendant, in the 4400 block of
Locust Street in the City of Philadelphia, fitting the description of a man wanted in
connection with , ne of the robberies. As he approached Defendant, he identified himself
1 MC-CR-5 i -07828151-2005; MC-CR-5 l -07828161-2005; MC-CR-51-07828 l 7 l-2005; and MC-CR-5 l- 07828 l 8 l -2005 J
'MC-CR-5 l-0782815 l-2005 4 MC-CR-51-078281[61-2005 and !VIC-CR-5 l-07828171-2005 3 rvtC.CR-51-07828 ![s 1-2005
14 Circulated 09/22/2017 09:50 AM
as a police offi er, displaying his badge. Defendant initially held his hands up as if to
give himself upl and then turned, running away drawing a gun out of his waist band.
When Officer 1bdulhadi caught up to Defendant, he refused to give himself up and a
shootout ensuedl Defendant was then taken into custody and two guns were recovered
from his person (N.T., 2/13/06, pgs. 6-9, 11) At the conclusion of this hearing, this
matter was bound over for trial at CP-5 l-CR-0204941-2006.
On Jan1ry 9, 2006, prior to Defendant's second preliminary hearing, the
Honorable Pam la Pryor Demby, dismissed one of the robbery the charges against
Defendant at C -51-CR-1100961-2005. The record reveals that the three remaining
robbery charges and the charges relating to the shootout were subsequently assigned to
the Honorable illis W. Berry, Jr., for trial. The record is unclear as to when or how
these charges w[re consolidated .. However, in a handwritten note in the . record, dated
May 22, 2006 ard signed by Judge Berry, indicates that the matter was continued "for
consolidation mrion." The caption on D.efendant's "Amended Motion To Suppress
Identification m~d Evidence," filed on May 18, 2007 > immediately prior to the
commencement tf trial, includes the remaining three docket numbers, indicating that the
charges relating he three robberies and the shootout had been consolidated by then. It
also appears on t ie record that Judge Berry granted Defendant's motion to suppress only
as to CP-51-CR 1100981-2005. He proceeded to trial on the two remaining robbery
charges at CP-5 /-CR-110097 I-2005 and the weapons charges at CP-51-CR-0204941-
2006. l
How and ~lien these matters were consolidated is not critical to the determination
of the propriety dr the consolidation ; itself. Nor does the dismissal of the two companion
15 robbery cases obviate the propriety of the consolidation of the remaining charges. It is
clear that at the time of his arrest the police were searching for Defendant in connection
with a series o robberies, including the ones at issue, in the same general vicinity in
which he was u tirnately apprehended. Defendant's flight from the officers and resultant
shootout demonstrate his consciousness of guilt and are clearly relevant and admissible in
proving each ot the charges against him. Commonwealth v. Hargrove, 745 A.2d 20 (Pa.
Super. 2000) urthermore, not only is there a high correlation between these charges,
the evidence p rtaining to each is easily separable by the jury without confusion.
Natividad, Sup, a. As the consolidation of these matters was appropriate, trial counsel
cannot be held t, be ineffective for failing to object. Albrecht, Supra.
B. TRJAL COUNSEL WAS NOT INEFFECTIVE IN FAILING TO MOVE
FOR D ,SJVIISSAL OF THE CHARGES AGAINST HIM PURSUANT TO
RULE OF THE PENNSYLVANIA RULES OF CRIMINAL
PROCE URE.
In his ni /th through eleventh statement of errors, Defendant essentially complains
that trial "couns 1 was ineffective for failing to move for dismissal pursuant to Rule 600
of the Pennsylva iia Rules of Criminal Procedure ... " Defendant's complaints are without
The Peru sylvania Courts have long held that "any issues not raised in a Pa.R.A.P.
1925(b) staternet twill be deemed waived." (Commonwealth v. Lord, 553 Pa. 415, 417,
719 A.2d 306, at1309 (Pa .. 1998); Commonwealth v. Butler, 571 Pa. 441, 446, 812 A.2d
631, at 633 and ~34 (Pa. 2002); Com111011weaft/1 v. Castillo, 385 Pa. 395, 400, 888 A.2d
16 775, at 780 (Pa. Super. 2005). Likewise, the Superior Court of Pennsylvania extended
the scope of LoL when it held that "a Concise Statement which is too vague to allow the
court to identifJ the issues rais~d on appeal is the functional equival~nt to no Concise
Statement at all. ' Commonwealth v. Dowling, 778 A.2d 683, at 686 (Pa. Super. 2001 ).
"A PCRA petiti, ner must exhibit a concerted effort to develop his ineffectiveness claim
and may not r ly on boilerplate allegations of ineffectiveness." Commonwealth v.
Natividad, 938 4.2d 310, 322 (Pa. 2007) (Internal citations omitted)
Instantly,! nowhere, in his various PCRA complaints or statement of errors, has
Defendant devel ped his Rule 600 complaint beyond a mere boilerplate assertion setting
forth his arrest d te and trial date. Although Defendant concedes that a delay of 2 l days
is attributable to im, he has utterly failed to address the many periods of additional delay
encountered in ringing him to trial, Defendant instead argues that it is the Common-
wealth's burden o establish that his trial commenced in a timely manner. As noted, the
statutory intent ojf the PCRA Act is to function as an extraordinary means of relief, thus_
placing an affin iative duty on Defendant to develop, beyond a mere allegation, his
ineffectiveness crm. Having failed to do so, Defendant's complaint is deemed waived.
That said 16 at the time of Defendant's arrest Pa.R.Crim.P., at Rule 600 (Rule 600)
(A)(J), provided in part that, "Trial in a court case in which a written complaint is filed
against the defendant, when the defendant is at liberty on bail, shall commence no later
than 365 days frjm the date on which the complaint is fi!cd." Rule 600 further provided
at "(C) In detentining the period for commencement of trial, there shall be excluded
there from (3) su~h period of delay at any stage of the proceedings as results from (a) the
unavailability of ~he defendant or the defendant's attorney; (b) any continuance granted at j
6 The Court notes tha,t recent Rule 600 amendments are not applicable to Defendant's arrest and trial.
17 the request oft e defendant or the defendant's attorney." Lastly, Rule 600 provided at
"(G) ..... If the court, upon hearing, shall determine that the Commonwealth exercised
due diligence aid that the circumstances occasioning the postponement were beyond the
control of the C . mmonwealth, the motion to dismiss shall be denied and the case shall be
listed for trial o a date certain."
In discu sing the implications of Rule 600, the Superior Court of Pennsylvania,
in the leading c se of Commonwealth v.. Hunt, 858 A.2d 1234, 1239 (Pa. Super. 2004)
stated "this Cou ·tis not permitted to ignore the dual purpose behind Rule 600. Rule 600
serves two equ: lly important functions; ( 1) the protection of the accused's speedy trial
rights, and (2) t e protection of society. In determining whether an accused's right to a
speedy trial has been· violated, consideration must be given to society's right to effective
prosecution of riminal cases, both to restrain those guilty of crime and to deter those
contemplating i . However, the administrative mandate of Rule 600 was not designed to
insulate the cri inally accused from good faith prosecution delayed through no fault of
the Commonw alth, So long as there has been no misconduct on the part of the
Commonwealth in an effort to evade the fundamental speedy trial rights of an accused,
Rule 600 must be construed in ~ manner consistent with society's right to punish and
deter crime. In considering these matters... the courts must carefully factor into the
ultimate equati)n not only the prerogatives of the individual accused, but the collective
right of the co munity to vigorous law enforcement as well. Strained and illogical
judicial constru tion adds nothing to our search for justice, but only serves to expand the
already bloated arsenal of the unscrupulous criminal determined to manipulate the I system." (Citations omitted)
18 uut clearly established that, in considering a Rule 600 Motion, "the
Court must distinguish between 'excludable time' and 'excusable delay'. Excludable
time is that timj delay occasioned by the defendant's own actions as characterized under
Rule 600(C). Excusable delay is not expressly defined in Rule 600, but the legal
construct takes 1··nto account delays which occur as a result of circumstances beyond the
Commonwealth' control and despite its due diligence. Pa. R. Crim. P. 600(GJ." Id. at
1241. Hunt e plained that "Due diligence is a fact-specific concept that must be
determined on al case-by-case basis." '"Due diligence does not require perfect vigilance
and punctilious · are. but rather a showing by the Commonwealth that a reasonable effort
has been put for 1 1." Id. at 1241, 242
The war 'ant for Defendant's arrest was issued on July 20, 2005, resulting in a
mechanical run ate of July 20, 2006. After reviewing the dockets in conjunction with
the Commonwe lth's analysis of the various periods of delay occasioned in bringing this
matter to trial, the Court agrees with the Commonwealth's calculations and will review
them briefly. Th~ Court finds that the 21 days from December I 9, 200 5 and January 5,
2006,7 plus the lr.7 days from May 22, 2006 to October 16, 2006, for a total of 168 days,
is excludable res) lting in an adjusted run date of January 4, 2007. The Court also finds,
that the 122 days between October 16, 2006 and February 15, 2007, is excludable.!
resulting in a mJhanical run date of May 5, 2007. Trial commenced on May 21, 2007.
There il nothing in the record to indicate that the Cotnmonwe~lth was not ready
to proceed at anJj time during these proceedings. To the contrary the docket clearly
7 Presumably the 21 lays conceded by Defendant. 8 In addition to Defepdant being ruled incompetent on October 16, 2006, Defendant had also filed a prose motion to remove appointed counsel on August 2, 2006, which was granted on December 14, 2006, resulting in the matter being continued to February 20, 2007, for status. New counsel was appointed on December 15, 2006 flld she entered her appearance on January 4, 2007.
19 f
indicates that th first 168 days of delay are marked excludable. The second 122 days of
delay were occa ioned by Defendant's conflicts with counsel and his competency issues,
none of which is attributable to the Commonwealth.
Furthern ore: "Judicial delay can support the grant of an extension of the Rule
(600].run date." Cotnmonweaitli v. Brown, 875 A.2d 1128, 1135 (Pa. Super. 2005) The
docket reflects t iat on February 20, 2007, Defendant's trial date was scheduled for May
21, 2007, some ix teen days after the mechanical run date, and marted «MBTD" (Must
Be Tried Date). This de minimis delay scheduling Defendant's trial is not attributable to·
the Commonwe lth's lack of due diligence on the part of the Commonwealth, as it is
clear that the tri I date was set to accommodate Judge Berry's trial schedule.
C. THE A MISSION INTO EVIDENCE OF TWO SILVER GUNS WAS
APPROtRIATE. In his t elfth through fifteenth convoluted statement of errors, Defendant
complains in es ence, that the Court erred in allowing into evidence "two silver guns>'
prosecutorial mi,conduct in erroneously implying these guns were used in the robberies,
as well as the Crrt' s support of this argumcnt in its instructions to the jury. Defendant's
complaints are Jithout merit.
"Quest! ns concerning the admissibility of evidence lie within the sound
discretion of thl trial court, and we will not reverse the court's decision on such a I question absent r clear abuse of discretion." Commonwealth v. Maloney, 876 A.2d I 002,
1006 (Pa. Super] 2005) "An abuse of discretion is not merely an error in judgment, but i
20 an 'overriding I isapplication of the law, or the exercise of judgment that is manifestly
unreasonable, o · the result of bias, prejudice, ill-will or partiality, as shown by the
evidence or the ecord."' Commonwealth v. Flamer, 53 A.3d 82, 86 (Pa. Super. 2012)
citing Common vealth v. Cascardo, 981 A.2d 245, 249 (Pa.Super.2009) Our Superior
Court in Commonwealth v. Johnson, 874 A.2d 66, 72 (Pa. Super. 2005), held: 'The
basic requisite T.'" the admission of any evidence in a case is that it be competent and relevant. Thour relevance has not been precisely or universally defined, the courts of
this Commonwealth have repeatedly stated that evidence is admissible if, and only if, the
evidence logical y or reasonably tends to prove or disprove a material fact in issue, tends
to make such fa· t more or less probable, or affords the basis for or supports a reasonable
inference or pre umption regarding the existence of a material fact." (Internal citations
omitted)
The ad ission of the guns recovered from Defendant after his shootout with
police was cer ainly relevant to the charges relating to that incident, and clearly
distinguishable from the evidence relating to the robberies. The testimony of the
complaining wi ness that a gun was used in the robbery was alone sufficient to support
the robbery charge.
Defend1t's complaint regarding the Court's charge to the jury is taken out of
co1~tex~, as the jou~t c~arged the jury: "Now, we had tw~ gun ~harges. of th~ police too,
which IS a scparrte incident, as you know, from the ones involving the 111vo}v111g the lady
and gentleman.' (N.T., 5/25/07 pg. 88) Furthermore, there is nothing in the record to
suggest that eit~er the Court or the Commonwealth attempted to associate the use of the
silver guns withlthe armed robberies.
21 IV. DEFEN ANT IS NOT ENTITLED TO AN EVIDENTIARY HEARING.
Defendant complains that the "Court erred in failing to hold an evidentiary
hearing to exanline the charges and evidence against Officer Spicer. .. " De.fondant's
complaint is boJ frivolous and without merit. "A PC [ petitioner is not entitled to an evidentiary hearing as a matter of right,
but only where t ie petition presents genuine issues of material fact." Commonwealth v.
Keaton, 45 A.3 1050, 1094 (Pa. 2012) citing Pa.R.Crim.P. 909(B)(2); Harris, supra at
1180. "[T]he P I RA court has the discretion to dismiss a petition without a hearing when
the court is sati fied that there are no genuine issues concerning any material fact, the
defendant is not entitled to post-conviction collateral relief, and no legitimate purpose
would be served by any further proceedings." Commonwealth v. Sneed, 45 A.3d l 096,
1105 (Pa. 2012) quoting Pa.R.Crim.P. 909(B)(2) (internal quotations omitted). "[T]o
obtain a reversal of a PCRA court's decision to dismiss a petition without a hearing, an
appellant must show that he raised a genuine issue of fact which> if resolved in his favor,
would have entit ed him to relief, or that the court" committed an abuse of discretion "in
denying a hearing." Commonwealth v. D'Amato, 856 A.2d 806, 820 (Pa. 2004). "The
controlling facto· in determining whether a petition may be dismissed without a hearing
is the status oJ the substantive assertions in the petition." Commonwealth v.
Weddington, 521. A.2d I050, I052 (Pa. 1987) .
. Defendals argument that an cvidcntiary hearing, furtherance of his PCRA
1 petition, to exai ine the charges and evidence against Officer Spicer must fail. As
discussed above, !officer Spicer's evidence at trial was peripheral, at most raising an issue
of credibility, and was not material to his various convictions. Thus, with there being no
22 . (
issues of mater al fact on the record, there was no legitimate purpose to holding an
evidentiary hear ng.
V. DEFEN ANT IS NOT ENTITLED TO DISCOVERY.
Defender t lastly complains that the «court erred in failing to grant Appellant's
discovery reque t pursuant to Pa.R.Cr.P. Rule 1502(e)" relating to the arrests of Officer
Spicer and othe 's, Irregardless of Defendant's misidentifying the appropriate rule of
discovery, his request represents nothing more than a prurient fishing expedition and his
complaint is wit out merit.
As the ommonwealth so aptly notes, Commonwealth v. Abu-Jamal, 553 Pa.
485, 720 A.2d 7 (1998), makes it crystal clear that discovery in PCRA matters is not a
matter of routin entitlement. This is clearly embodied in Pa.R.Cr.P. Rule 902(E) which
provides in part "(I) Except as provided in paragraph (E)(2), no discovery shall be
permitted at any stage of the proceedings, except upon leave of court after a showing of
exceptional circi instances." This is in clear contrast to capital cases which requires a
showing of "go d cause." [n his discovery request, Defendant has failed to meet his
burden of pleadii g and proving "exceptional circumstances."
In Abu-Ji mat, Appellant "requested wholesale discovery of whatever informa-
tion he 'believe ' to exist and/or of entire files so that he could discern whether his
assertions were t ·ue. '' Id. 720 A.2d at 91 In addressing Appellant's discovery request,
our Supreme Cot It held; "The ability of a party to conduct investigation into the claims I being raised in 1~ PCRA petition simply does not translate into a right of discovery;
especial I y the typ;e of discovery being sought by Appellant in the i nstant matter." Id.
23 ( I I /'
. lnstantll as in Abu-Jamal, Defendant is seeking the wholesale discovery of the
CommonwcaltJ1's files relating to the arrests of Officer Spicer and others. Defendant is
unclear as to hat he expects to discover and his request is overly broad in seeking
information reg rding the investigations of numerous officers, none of which, save for
Officer Spicer, vere involved in his arrest and/or convictions. As noted, Officer Spicer,
testifying as air expert witness, was not involved in his arrest or the subsequent
investigation lerding to his convictions. Despite Defendant's protestations, Officer
Spicer played dnly a peripheral role in his convictions. As the Commonwealth has
pointed out much of the material requested is already in the public domain offering
Defendant, at t e very least, an opportunity to be more specific as to what may be
potentially reve led by such discovery. Although "exceptional circumstances" is not
clearly defined, the Court finds that common sense requires more than a generalized
allegation of hat he hopes might· be discovered, which Defendant has not done.
Defendant utter y failed to meet his burden and the court finds no circumstances, let
alone "exceptiorl circumstances," justifying the granting of his request for discovery,
which amounts to nothing more than a wholesale fishing expedition into an unrelated
matter.
In cone! sion, the Court finds that imposition of Defendant's mandatory sentence
was rendered illegal by Alleyne and should be vacated and remanded for resentencing.
The Court also ~nds the remaining averrnents in Defendant's PCRA petition arc without
merit and were Jroperly dismissed.
24 >! .· ·, fo4
BY THE COURT:
January 30, 201
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