Com. v. Bellon, C.

J-S34021-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee

v.

CHARLES A. BELLON,

Appellant No. 1472 WDA 2013

Appeal from the PCRA Order August 26, 2013
In the Court of Common Pleas of Blair County
Criminal Division at No(s): CP-07-CR-0001272-2002

BEFORE: GANTMAN, P.J., BENDER, P.J.E., and OTT, J.

MEMORANDUM BY BENDER, P.J.E.: FILED AUGUST 07, 2014

2013 order denying his petition for relief filed pursuant to the Post

Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. Appellant raises a

multitude of issues, the majority of which involve allegations of ineffective

assistance of his trial counsel. After careful review, we affirm.

We summarize the complicated and lengthy procedural history of this

case as follows. On May 9, 2002, the Pennsylvania Office of Attorney

General (OAG) filed a criminal complaint charging Appellant with 23

offenses, including: seventeen counts of possession with intent to deliver a

controlled substance (PWID), two counts of corrupt organizations, and one

count each of criminal conspiracy, criminal use of a communication facility,

stemmed from his involvement in a large-scale drug dealing operation
J-S34021-14

conducted throughout Blair County and several surrounding counties from

1997 through 2001.

Appellant initially entered into a negotiated plea agreement whereby

withdrawing all of the remaining charges and recommending a sentence of

Appellant filed a motion to withdraw his plea. The trial court denied that

peal

his plea should have been granted. Accordingly, we reversed his judgment

of sentence and remanded for trial. Commonwealth v. Bellon, 864 A.2d

574 (Pa. Super. 2004) (unpublished memorandum).

Upon remand, Appellant proceeded to a jury trial and, on August 7,

2006, he was convicted of eleven counts of PWID, two counts of corrupt

organizations, and one count each of conspiracy, criminal use of a

communication facility, and dealing in unlawful proceeds. On April 5, 2007,

affirmed his judgment of sentence. Commonwealth v. Bellon, 29 A.3d

836 (Pa. Super. 2011) (unpublished memorandum).

Appellant filed a pro se PCRA petition on September 30, 2011.

New counsel subsequently entered his appearance and was granted leave to

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file, and did file, two more amended petitions. After conducting an initial

hearing to ascertain the precise issues Appellant was raising, the PCRA court

conducted an evidentiary hearing on August 23, 2012. On August 26, 2012,

the court issued an order and a 72-

petition.

Appellant filed a timely notice of appeal.1 Herein, he presents seven

issues, and eight sub-issues, for our review:

I. Was trial counsel ineffective for not pursuing whether the
statute of limitations was violated by alleging criminal conduct in
all of 1997?

II. [] Was trial counsel ineffective for not appropriately moving
for dismissal of charges [when] the case was remanded for trial?

[a.] [] Was trial counsel ineffective for not moving for
dismissal due to res judicata/procedural default and
defect?

[b.] [] Was trial counsel ineffective for not moving for
dismissal due to the expired statute of limitations?

III. Was trial counsel ineffective regarding witness Haralson?

[a.] [] Was trial counsel ineffective for not moving for a
mistrial and dismissal of charges for the inappropriate

[b.] [] Did the Commonwealth commit misconduct by not
fully turning over the plea arrangement and agreement of
witness Haralson?

____________________________________________
1
The PCRA court did not order Appellant to file a Pa.R.A.P. 1925(b)
statement. Instead, it filed a document advising Appellant that in support of
its denial of his petition, the court would rely on the established record
(assumedly referencing, inter alia, its detailed August 26, 2012 opinion).

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J-S34021-14

IV. [] Was trial counsel ineffective for not further pursuing the

V. [] Was trial counsel ineffective regarding the
witnesses[, Agent] Young and [Agent]
Feather?

[a.] [] Was trial counsel ineffective in allowing Agent
Young to testify as an expert?

[b.] [] Was trial counsel ineffective in allowing Agent

[c.] [] Was trial counsel ineffective in allowing Agent Young
to testify as an expert to the credibility of witnesses?

[d.] [] Was trial counsel ineffective in not objecting to
further testimony by Agent Feathers?

VI. [] Does newly pertinent case of [Alleyne v. U.S., 133 S.Ct.
2151 (2013)] apply?

VII. [] Was trial counsel ineffective for not objecting to
misconduct by the prosecutor?

-76.

To begin we note that

or denial of post-conviction relief is limited to examining whether the lower

Commonwealth v. Morales, 701 A.2d 516, 520 (Pa.

1997) (citing Commonwealth v. Travaglia, 661 A.2d 352, 356 n.4 (Pa.

1995)). Where, as here, a petitioner claims that he received ineffective

assistance of counsel, our Supreme Court has stated that:

[A] PCRA petitioner will be granted relief only when he proves,
by a preponderance of the evidence, that his conviction or
sen
which, in the circumstances of the particular case, so
undermined the truth-determining process that no reliable

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J-S34021-14

performance is presumed to be
constitutionally adequate, and counsel will only be deemed
ineffective upon a sufficient showing by the petitioner. To obtain

was deficient and that the deficiency prejudiced the petitioner. A

unprofessional errors, the result of the proceeding would have
m of ineffectiveness
posits that: (1) the underlying legal issue has arguable merit;

omission.

Commonwealth v. Johnson, 966 A.2d 523, 532-33 (Pa. 2009) (citations

omitted).

for failing to challenge the criminal complaint and/or information on two

grounds. First, Appellant claims that both the criminal complaint and

criminal information violated the Pennsylvania Rules of Criminal Procedure

between 1997

about

date within the applicable statute of limitations (SOL). See Pa.R.Crim.P.

committed on or about any date within the period of limi

Pa.R.Crim.P. 506(B)(3) (requiring that criminal information allege that the

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2
consequently,

it is waived. See

see e.g.

Commonwealth v. Rainey, 928 A.2d 215, 226 (Pa. 2007) (stating that

claims not raised in the PCRA petition are waived).

Appellant also contends that his trial counsel should have challenged

the criminal complaint and information because it alleged criminal activity

that occurred outside of the applicable five-year SOL.3 Specifically, it

appears that Appellant takes issue with count 1 in the criminal information,

Information, 5/9/02, at 1 (unnumbered pages). Appellant maintains that

because the criminal complaint was filed on May 9, 2002, any criminal

conduct that occurred between January 1, 1997 and May 8, 1997 fell outside

of the five-year SOL.4 Therefore, he argues that his trial counsel should

instruction informing the jury that in order to convict Appellant, it must

____________________________________________
2
pro se petition, as
well as the three counseled amendments thereto.
3
The parties do not dispute that the applicable SOL is five years. See 42
Pa.C.S. § 5502(b)(2).
4
Appellant claims that the criminal complaint was filed on May 2, 2002. The
PCRA court, however, states that it was filed on May 9, 2002. Our review of
the certified record supports the date used by the PCRA court.

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J-S34021-14

84.

Initially, Appellant did not argue in his PCRA petition, or at the PCRA

hearing, that counsel was ineffective for failing to request a jury instruction

regarding the SOL issue.5 Therefore, that argument is waived. See

Pa.R.A.P. 302(a); Rainey, 928 A.2d at 226.

pretrial motion seeking dismissal of [the] PWID charges on grounds that

Pro Se PCRA Petition, 9/30/11,

at 3. Appellant has failed to even argue, let alone prove, that he was

explain why the Commonwealth could not have simply amended the criminal

information upon an objection by defense counsel. See Pa.R.Crim.P. 564

in form, the description of the offense(s), the description of any person or

any property, or the date charged, provided the information as amended

ineffective representat

liability may not be imposed upon acts committed outside the limitations

Commonwealth v. Purcell, 589 A.2d 217, 234 (Pa. Super. 1991)

____________________________________________
5
Consequently, the PCRA court did not address this claim.

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J-S34021-14

(citations omitted). Here, the PCRA court concluded that the

were committed, continuously, from late 1997 through March of 2001. See

PCRA Court Opinion, 8/26/12, at 26-28. The court noted the testimony of

Commonwealth witness Norman Ransom, who stated that in 1997 he and

Appellant agreed to begin a drug-selling operation. N.T. Trial, 7/31/06, at

-

funding of $2,000 to purchase crack cocaine. Id. at 23-24. Ransom stated

late Id. at

24 (emphasis added).

-selling activity began at the end of

1997. While Appellant contends that the SOL issue should have been

determined by the jury,6

testimony, the jury would have concluded that his PWID offenses occurred

between January 1, 1997 and May 8, 1997. Accordingly, he has not proven

See

Commonwealth v. Spotz

____________________________________________
6
See Commonwealth v. Bethlehem, 570

Commonwealth is required to prove as an element of every criminal offense

omitted).

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J-S34021-14

s unprofessional errors, the result of the proceedings

-parts), he

alleges that his trial counsel was ineffective for not moving to dismiss the

charges that were reinstated after he withdrew his guilty plea. To reiterate,

Appellant initially pled guilty in this case and, after the trial court denied his

presentence motion to withdraw his guilty plea, he was sentenced on the

seven counts of PWID to w

20, 2003 sentencing order, it stated that the remaining 16 counts were

nolle prossed

appealed to this Court and, upon concluding that the trial court should have

sentence and remanded for trial. Upon remand, the Commonwealth

nolle prossed

03 sentencing order.

ability to reinstate those 16 charges. The trial court concluded that because

the sentencing order dismissing those charges had been vacated by this

Court on direct app

Opinion, 2/7/06, at 10. In other words, the trial court concluded that the

Commonwealth could prosecute Appellant for all 23 counts originally

charged.

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Following his trial and conviction, Appellant once again appealed to

this Court, arguing that the trial court erred in allowing the Commonwealth

to reinstate the 16 charges that had been nolle prossed and dismissed.

Commonwealth v. Bellon, 1213 WDA 2009, unpublished memorandum at

4 (Pa. Super. filed April 18, 2011) (citation omitted). In rejecting this claim,

our Court stated, in pertinent part:

logic, a defendant could plead guilty in exchange for the

guilty plea, and then prevent the Commonwealth from
reinstituting the charges that had been withdrawn as part of plea
negotiations. This position is untenable. A plea agreement is
exactly that, an agreement. Once the defendant withdraws the
agreement, the parties stand in the same position as they did
before its entry. Thus, all of the charges against Appellant
could lawfully be prosecuted after he withdrew his guilty
plea. See Commonwealth v. Rose, 820 A.2d 164 (Pa. Super.
2003). To hold otherwise would result in defendants gaming the
system by pleading guilty and withdrawing their pleas by
proclaiming innocence solely to reduce the number of charges.

Id. at 12 (emphasis added).

reinstatement of the at-issue charges. However, this time, Appellant frames

the issue as an ineffective assistance of counsel claim. Specifically, he

argues that counsel should have objected to the reinstatement of the

charges on the grounds that it violated the doctrine of res judicata. He also

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J-S34021-14

lude that Appellant was lawfully

prosecuted on all of the original 23 counts with which he was charged.

considered and decided a question submitted to it on appeal, it will not upon

a subsequent appeal on another phase of the same case, reverse its

Albright v.

Wella Corp., 359 A.2d 460, 463 n.4 (Pa. Super. 1976) (citing Burke v.

Pittsburgh Limestone Corp., 100 A.2d 595, 598 (Pa. 1953)).

charges against Appellant could lawfully be prosecuted after he withdrew his

Bellon, 1213 WDA 2009, at 12. Not only do we agree with

that determination and the rationale underlying it, but even if we did not,

the law of the case doctrine compels us to adhere to it. The fact that

Appellant attempts to once again challenge the reinstatement of the charges

on slightly different grounds does not permit this Court to reach a different

result.7 -parts thereof,

are meritless.
____________________________________________
7
We note that the PCRA court reached the same conclusion, finding that it

at 33.

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J-S34021-14

Next, Appellant contends that his trial counsel was ineffective based on

two ostensible errors regarding the testimony of Commonwealth witness

Charles Haralson. In regard to his first complaint, Appellant essentially

contends that the Commonwealth discovered that Mr. Haralson committed

perjury during his testimony before a grand jury in this case, yet the

no steps whatsoever other than to casually bring it to

perjury, yet he does not

specify precisely what the Commonwealth was required to do differently.

Moreover, despite conceding that during cross-examination his counsel

Appellant contends that his trial counsel acted ineffectively by not objecting

Id.

at 88-89.

a claim of ineffective assistance grounded in trial counsel's
failure to object to a prosecutor's conduct may succeed when the
petitioner demonstrates that the prosecutor's actions violated a
constitutionally or statutorily protected right, such as the Fifth
Amendment privilege against compulsory self-incrimination or
the Sixth Amendment right to a fair trial, or a constitutional
interest such as due process. To constitute a due process
violation, the prosecutorial misconduct must be of sufficient
significance to result in the denial of the defendant's right to a
fair trial. The touchstone is fairness of the trial, not the
culpability of the prosecutor.

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J-S34021-14

Commonwealth v. Koehler, 36 A.3d 121, 144 (Pa. 2012) (citations and

internal quotation marks omitted).

duct in

Id.

examination of Mr. Haralson, she revealed the issue of his perjured grand

jury testimony, explicitly asking Mr. Haralson if he had testified truthfully.

N.T. Trial, 8/3/0, at 10. He stated that he had not. Id. The prosecutor

Id. at 10-11. Mr. Haralson responded that he did

understand those facts. Id. at 10-11.

Then, on cross-

acknowledged that he lied during his grand jury testimony. Id. at 21.

Id. at 22. Counsel

then questioned Mr. Haralson as follows:

[Trial Counsel]: So why should the jury believe you now when
you already admitted that you lied under oath?

[Trial Counsel]: Alright. But the grand jury thought you were
speaking the truth [t]here, correct?

[Mr. Haralson]: Yes.

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J-S34021-14

[Mr. Haralson]: Yes.

[Mr. Haralson]: Yes.

Id. at 22.

Based on this evidence, the PCRA court conclud

Opinion at 40. We agree. Consequently, we conclude that trial counsel was

not ineffec

Additionally, the record confirms that counsel had a reasonable basis

for not doing so. For instance, when asked at the PCRA hearing whether it is

following exchang

trial counsel:

[The Commonwealth]: And you also asked a series of questions
to Mr. Haralson about him lying to the grand jury in order to
discredit him before the jury?

[Trial Counsel]: Yes.

[The Commonwealth]: So, even though you may not have filed a
motion to preclude Mr. Haralson as a witness, your strategy was

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[Trial Counsel]: Correct, because that fit our whole defense
scheme which was prosecutorial misconduct and [the] lengths
that they would go to prosecute [Appellant].

Id. at 41-

designed to bolster Appellant

claim of ineffectiveness fails on this basis, as well.

claims that the Commonwealth violated Brady v. Maryland, 83 S.Ct. 1194

(1963), by not di

Brady claim. There, Mr. Haralson stated that in exchange for testifying at

he subsequently pled guilty. N.T. PCRA Hearing, 8/23/12, at 6-7.

exchange:

[PCRA Counsel]: Okay. Now, I guess the key question, Mr.
Haralson, is when did you know that your cooperation against
[Appellant] was going to aid you in your federal plea?

[Mr. Haralson]: Before --- before trial, I was told that whatever
needed to be done was gonna be done to help me out.

Id. at 6. Mr. Haralson clarified that these statements were made by both

Assistant District Attorney Jackie Bernard (ADA Bernard) and Pennsylvania

Office of Attorney General Narcotics Agent Randy Feathers (Agent Feathers).

Id. at 11.

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J-S34021-14

However, on cross-examination, it was revealed that the federal

charges against Mr. Haralson had not even been filed until November 15,

2006, several months after Mr. Haralson testified against Appellant in late

July and early August of 2006. Id. at 10. Mr. Haralson was also asked on

cross-

specific agreement,

understanding or promise with the Commonwealth where the

Id. at 14. Mr.

Id. at 14-15.

trial, she disclosed to defense counsel that the Commonwealth had entered

into three plea agreements with Mr. Haralson in state court. Id. However,

she repeatedly maintained that she never entered into an agreement with

Mr. Haralson, nor made any promises to him, regarding his federal case. Id.

at 103, 106. Indeed, ADA Bernard testified that she did not recall even

knowing

Id. at 104. She also stated that there was no

Id.

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J-S34021-14

sentencing transcript for [Mr.] Haralson [] indicates that there was

communication made from [her] and/or [Assistant District Attorney] Dave

Id. at

103. When asked to explain further, ADA Bernard stated:

[ADA Bernard]: Well, the [federal] case against Mr. Haralson
was not even brought until after the trial for [Appellant]. I do
recall [ADA] Gorman asking me if Haralson had testified in

did relay back to him that he had. He apparently had a phone
conversation or a phone call, I should say, from John Valkovci,

Id. at 104.

ADA Gorman also took the stand at the PCRA hearing. He testified

that he could not recall having a conversation with federal authorities about

Id. at 96. However, he

testified that it was possible that federal authorities had contacted him in

this regard and he simply relayed to them that Mr. Haralson had testified

Id. at 96.

stated that he never entered into any agreement or made any promise to

Mr. Haralson regarding his federal case. Id. at 55-56. Indeed, he testified:

ever would tell somebody that I could handle something another agency was

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J-S34021-14

Id. at 56. Agent

Feathers also stated that he never heard ADA Bernard make any promises to

Mr. Haralson regarding his federal case. Id. at 56.

Based on this evidence, we ascertain no abuse of discretion in the

Brady claim. Initially, Appellant does not

explain when he discovered the purported deal with Mr. Haralson in order to

satisfy his burden of proving that he could not have raised this claim on

direct appeal. See 42 Pa.C.S. § 9543(a)(3) (stating that to be eligible for

has not been previously lit

trial, at trial, during unitary review, on appeal or in a prior state

s waived.

Nevertheless, based on the evidence presented at the PCRA hearing,

we would conclude this Brady assertion is meritless. Even if ADA Bernard

and/or Agent Feathers suggested to Mr. Haralson that they would make his

known in any future criminal proceedings,

such a suggestion did not constitute an agreement or promise that had to be

disclosed under Brady. See Commonwealth v. Burkhardt, 833 A.2d 233,

243-

truthful testimony and cooperation would be considered in future

Brady, as such a

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J-S34021-14

represents nothing more than the type of ge

sentencing hearing, ADAs Bernard and Gorman answered honestly when

asked

trial. See Commonwealth v. Russell, 665 A.2d 1239, 1244 (Pa. Super.

1995) (concluding that the fact that a homicide detective responded to

inquiries by a federal prosecutor rega

Brady claim would fail

even if it were not waived.

responded to a request for a Bill of Particulars filed by Appellant. In

f Particulars Nunc Pro Tunc

contended that the criminal information was insufficiently specific regarding

the dates of his alleged offenses. Specifically, Appellant took issue with the

fact that for many of his offenses, the criminal information simply stated the

year in which the crime occurred. For the remaining offenses, the

information only specified a time-frame of several months of a particular

year, which Appellant also claimed was inadequate. Accordingly, Appellant

requested that the court order the Commonwealth to file a Bill of Particulars,

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J-S34021-14

providing more specific dates of his alleged crimes. The court ultimately

Therein, the Commonwealth again stated the year in

See

Request for Bill of Particulars, 2/27/06, at 1.

Particul

namely, an alibi defense for the year of 1997.

of

Particulars

daily

considering the circumst

Having heard the evidence at trial, the Court understands

Particulars. Indeed, based on the testimony of Norman Ransom,
[Appellant] possessed cocaine literally every day he was in Blair
County with the intent to deliver it to various individuals
including passing out free samples to encourage customers.

testimony of Norman Ransom

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J-S34021-14

was entirely consistent with the evidence which they presented.
The testimony of Norman Ransom was supported by Theresa
Rickabaugh Givens who described specific purchases from
[Appellant] which she testified commenced in 1997 and then

You know I did some calculating when I was going through
the transcript in this matter if I gave you a 30 year
sentence there would be I would not be giving you a one
day per crime sentence. In other words, if you take 30
years and you multiply it by 365 [days,] more crimes were
committed in your name or by you than there are days in
30 years and you were central to every one of those
crimes.

(See transcript of Sentencing Proceeding April 5, 2007,
Pages[]48-49).

PCRA Court Opinion at 34-35.

stated that

daily

counsel was not ineffective for failing to seek further clarification of the

Furthermore, even if this claim of ineffectiveness had arguable merit,

Appellant has not demonstrated that he was prejudiced. Appellant avers

that his defense was hampered by the lack of specificity in the criminal

to present an alibi defense for the PWID offense committed in 1997.

However, at the PCRA hearing, Appellant stated that he told trial counsel he

was not present in Blair County at any time in 1997; instead, he told counsel

he arrived in Blair County in March of 1998. N.T. PCRA Hearing at 149. As

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J-S34021-14

more specific averment as to when in 1997 he committed PWID would not

ogic is convincing. Accordingly, even if this claim of

ineffectiveness had arguable merit, we would conclude that Appellant has

-issues) involves trial

testimony of Agent Young regarding

an encounter [the agent] had with Appellant at a basketball
court in Altoona. Agent Young approached [] Appellant about a
large missing sum of police money and angrily confronted []
Appellant. [] Appellant indicated he felt he had to respond to

vidence amounted to a confession that []
Appellant had been involved in the business of selling narcotics.

y

Id. at 95-96.

bald claim that a suppression motion would likely have been granted,

Appellant offers no explanation as to why the court would have suppressed

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Agent Young. Therefore, Appellant has failed to prove his ineffectiveness

claim has arguable merit. See Commonwealth v. Cope, 518 A.2d 819,

In any event, we would also agree with the PCRA

that trial counsel had a reasonable basis for not seeking to exclude Agent

not filing a motion to suppress this evidence as follows:

[Trial Counsel]: The biggest reason would probably be that
obviously since it was outside; [Appellant] was not in custody so
obviously Miranda, even though I disagree with it --- the rulings
on most of them --- but you have to be in custody; he has to be
subject to custodial interrogation. Obviously, the argument
between [Appellant] and [Agent] Young over ten thousand
dollars ($10,000) fit neither of those criteria and that
conversation, again, I think was important because it fit our
defense that that was one of the reasons they were so gung-ho
to convict [Appellant] at all costs.

N.T. PCRA Hearing at 44.

From this testimony, the PCRA court concluded:

Having reviewed the trial transcript we see the merit of [trial

good tactic as the evidence was (arguably) valuable to the
Defense at trial. Indeed, our review suggests this was the
clearest evidence the Defense had during the entire proceeding
that the Commonwealth was setting [Appellant] up and was
angry with him.

Accordingly, since the strategy [trial counsel] adopted (included)
admission of the conversation/argument between [Appellant]

to get t

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[Appellant] in front of the jury. In that pivotal respect, the
Defense had to choose. The choice [trial counsel] made was
clearly legitimate as he explained it and [it was] consistent (in
fact important) to the Defense strategy at trial.

PCRA Court Opinion at 46-

determination. Consequently, even if Appellant had satisfied the arguable

merit prong of the ineffectiveness test, we would conclude that counsel had

testimony.

witness. Appellant maintain

weight Id. at 98-99. Appellant

witnesses that testified during the Id.

with the expert qualification, it would be plain error for an expert to bolster

the credibility of other lay witnesses, yet this was exactly what was

Id. at 97-98.

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laim that counsel should have objected to Agent

credibility of other witnesses is waived for two reasons. First, Appellant did

not raise this claim in his PCRA petition. See Pa.R.A.P. 302(a); Rainey, 928

A.2d at 226. Second, Appellant provides no citation to where in the record

this ostensibly improper testimony by the agent occurred. Indeed, Appellant

does not even name the four witnesses on whose credibility Agent Young

allegedly commented. Consequently, this specific assertion is waived. See

Pa.R.A.P. 302(a); Commonwealth v. Berry, 877 A.2d 479, 485 (Pa. Super.

In

arguable merit. This Court recently stated that Pennsylvania Rules of

opinions, in the capacity as both a lay and an expert witness on matters that

may embrace the ultimate issues to be decided by the fact-

Commonwealth v. Huggins, 68 A.3d 962, 967 (Pa. Super. 2013), appeal

denied, 80 A.3d 775 (Pa. 2013).

Furthermore, Appellant did not establish that counsel made an

basis. At the PCRA hearing, Appellant only questioned trial counsel

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J-S34021-14

testimony on the basis that the Commonwealth failed to disclose that Agent

Young would be offered as an expert witness. See N.T. PCRA Hearing at 30.

PCRA hearing concerning whether trial counsel should have objected to

but was only testifying as a fa

Id. The record confirms

ellant

has not met his burden of pleading and proving

this regard.

portion of

[Agent Feathers]: No, in my experience with corrupt

direct buys from the leaders.

[The Commonwealth]: And do you have an expert opinion on the
role [Appellant] played in this organization?

[The Commonwealth]: And what is that?

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J-S34021-14

for the fact finder.

going to sustain the objection. Another question, [ADA]
Bernard.

[The Commonwealth]: Thank you, your Honor. You said that
your interest was peaked [sic] once you spoke to Mr. Butler and
you found out the amounts of money that Mr. Butler owed

r answer.
Why was your interest peaked [sic]?

[Agent Feathers]: Well, this individual had owed [Appellant]
fifty-six hundred dollars ($5,600) on a front. To me as an expert

indicated to me that Mr. Butler was himself somewhat of a major
dealer and he was going to his source, which I believed was a
major dealer, [Appellant], just due to the amount of money
involved.

N.T. Trial, 8/4/06, at 263-64.

Appellant argues that trial counsel should have renewed his objection

Id. at 264.

Appellant maintains that

had this been a minor detail or low evidentiary worth question,
the inaction [of counsel] may have been excusable; however,
this question was of significant evidentiary value. Allowing
Appellant to be labeled by an expert witness as a major drug

intents and purposes handed the [Commonwealth] convictions
signed, sealed and delivered.

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J-S34021-14

Appellant provides no discussion of the basis on which counsel should

why such an objection would likely have been sustained. Indeed, the PCRA

court concluded that an objection to the above-quoted testimony by Agent

court reasoned, in relevant part:

[Agent Feathers] answered the question he was asked as to why
his interest was piqued. In his response, he indicated that both
Mr. Butler and [Appellant] appeared (due to the amount of
money involved) as major dealers. At the conclusion of a seven
day trial there was no nuclear rocket science in that opinion by

PCRA Court Opinion at 62-63. Because Appellant offers no argument

meritless, we conclude that Appellant has failed to prove that his

ineffectiveness claim regarding Agent Feather

merit. See Cope, 518 A.2d at 820.

of trial counsel ineffectiveness. Instead, Appellant attacks the legality of his

sentence under the Supreme Court of the Un

Alleyne

Id. at 2155.

multiple mandatory sentence enhancements without the benefit of a

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J-S34021-14

Brief at 100-101. Consequently, he maintains that under Alleyne, his

mandatory sentences must be vacated as illegal.

We disagree. Alleyne was decided on June 17, 2013, nearly two

that rule applies to all criminal cases still pending on direct review. As to

convictions that are already final, however the rule applies only in limited

Schriro v. Summerlin, 124 S.Ct. 2519, 2522 (2004). In

Id.

at 2522-2523.

addressed the retroactivity of Alleyne

this Court should undertake such an analysis. Instead, he asserts that we

should apply Alleyne to his case because he

has continually remained in the appellate process since his
conviction. This includes direct appeals and the instant PCRA
appeal. One of the issues challenged both at the direct appeal
level and in the instant PCRA was the aggregation of weights [of
the drugs] and the resulting application of mandatory sentences.
Since day one of the appeals process[,] [] Appellant has
contended that what eventually became the Alleyne decision
was the appropriate rule of law.

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became final prior to the decision in Alleyne; therefore, his case was not

Alleyne was issued. Schriro, 124 S.Ct. at

2522. We cannot ignore these facts and apply Alleyne on collateral review

not demonstrated that he is entitled to retroactive application of Alleyne.

In

ineffective for not objecting to particular instances of prosecutorial

misconduct as well as not moving for dismissal due to the cumulative nature

s Brief at 102. In support of this

claim, Appellant essentially rehashes the same arguments proffered in

several of his previous issues. Namely, Appellant asserts that (1) the

the criminal information; (2) the Commonwealth committed a Brady

violation with regard to an agreement with Charles Haralson; (3) the

testimony; and (4) the Commonwealth impermissibly elicited testimony from

Id. at 104. We thoroughly addressed each of these claims, infra,

and concluded

final issue is meritless.

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Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 8/7/2014

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