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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
JAMAR LASHAWN TRAVILLION, : No. 1461 WDA 2013
:
Appellant :
Appeal from the PCRA Order, August 19, 2013,
in the Court of Common Pleas of Allegheny County
Criminal Division at No. CP-02-CR-0006704-2003
BEFORE: FORD ELLIOTT, P.J.E., PANELLA AND OLSON, JJ.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED FEBRUARY 10, 2015
Jamar Lashawn Travillion appeals, pro se, from the order denying his
first petition for post-conviction relief filed pursuant to the Post Conviction
Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. We affirm.
The facts, as summarized by a prior panel of this court on direct
appeal, are as follows:
Debra Lynn Diodati was the manager of the
Rainbow Apparel Store in Pittsburgh. She arrived at
9:30 a.m. to open the store after a snowstorm. As
she approached the door, she saw a man in a winter
jacket holding a manila folder in his left hand. In
summary, the man told her to turn off the store’s
alarm, and forced her to the area of the cash
registers where there was a safe. He put the folder
down and took two envelopes containing a total of
$200. After he took the money from the safe by the
cash registers, he pushed Diodati toward her office,
ripping a hinged door from the wall. He told her to
open another safe, which she did. He took two bank
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deposit bags containing over $6,000. He told her to
unlock the back door so he could leave and got into
a running car where there was a getaway driver.
Later, Diodati discovered the manila folder still
on the floor. The police found several fingerprints on
the folder and on papers inside the folder which
matched Travillion’s left hand. No other fingerprints,
including one on the door ripped from its hinges,
matched Travillion. Diodati described her robber as
being in his early twenties, well spoken, five feet
nine or ten inches tall, weighing about 160 pounds.
Travillion is six foot one and weighs about one
hundred and seventy pounds. Because he was
wearing some kind of mask, Diodati could not
identify his face. While the identification did not
exactly match Travillion, it was close enough not to
exclude him as well.
Commonwealth v. Travillion, No. 1773 WDA 2007, unpublished
memorandum at 2 (Pa.Super. filed November 5, 2008).
Following a jury trial on December 18, 2006, appellant was found
guilty of robbery. The Commonwealth filed notice to seek the mandatory
minimum sentence, as this was appellant’s second crime of violence. On
January 3, 2007, appellant was sentenced to serve 10 to 20 years’
imprisonment, which was to run consecutive to the sentence of life without
parole appellant was then serving in a separate case.
Post-sentence motions were filed and denied by operation of law on
August 29, 2007. Thomas Farrell, Esq., was appointed to represent
appellant for purposes of appeal. A timely direct appeal was filed, and on
November 5, 2008, a panel of this court affirmed judgment of sentence
finding the evidence presented was sufficient to sustain his conviction. (Id.)
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Appellant’s petition for reargument was denied on January 12, 2009. On
February 8, 2009, appellant filed a petition for allowance of appeal in the
Pennsylvania Supreme Court; the petition was denied on July 7, 2009.
On May 21, 2010, appellant filed a timely pro se PCRA petition.
Charles R. Pass, III, Esq., was appointed as counsel; and on January 10,
2011, Attorney Pass filed a motion to withdraw as counsel and a “no-merit
letter” pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988),
and Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc).
On January 12, 2011, the PCRA court issued a notice of intent to dismiss the
petition and counsel was permitted to withdraw. Thereafter, appellant filed
two separate motions for extension of time so he could hire private counsel
and/or amend his original PCRA petition; both extensions were granted.
(Docket #40, 42.)1 Nothing further was filed on appellant’s behalf, and on
August 19, 2013, the PCRA court dismissed appellant’s petition without a
hearing.
On September 9, 2013, appellant filed a pro se notice of appeal and
complied with the trial court’s order to file a concise statement of errors
complained of on appeal pursuant to Pa.R.A.P., Rule 1925(b), 42 Pa.C.S.A.,
and the trial court has filed an opinion. The following issues have been
presented on appeal:
1
We also note that on August 5, 2011, appellant filed a third motion for
extension of time. The trial court did not expressly grant this motion but did
not dismiss appellant’s petition until August 19, 2013. (Docket #45.)
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1. Did the PCRA court err and/or violate
Appellant’s rights for denying relief in this
post-conviction action without a hearing?
2. Did the PCRA court err and/or violate
Appellant’s rights for granting PCRA counsel
leave to withdraw from this post-conviction
action?
3. Did the PCRA court err and/or violate
Appellant’s rights for dismissing this
post-conviction action without first disposing of
the issues raised by one motion for extension
of time to hire counsel and/or amend the
original pro se petition?
Appellant’s brief at 4.
This Court’s standard of review regarding an order
denying a petition under the PCRA is whether the
determination of the PCRA court is supported by the
evidence of record and is free of legal error.
Commonwealth v. Halley, 582 Pa. 164, 870 A.2d
795, 799 n. 2 (2005). The PCRA court’s findings will
not be disturbed unless there is no support for the
findings in the certified record. Commonwealth v.
Carr, 768 A.2d 1164, 1166 (Pa.Super.2001).
Commonwealth v. Turetsky, 925 A.2d 876, 879 (Pa.Super. 2007),
appeal denied, 940 A.2d 365 (Pa. 2007). Further, to be eligible for relief, a
petitioner must plead and prove by a preponderance of the evidence that
“the allegation of error has not been previously litigated or waived.”
42 Pa.C.S.A. § 9543(3).
Moreover,
[t]he right to an evidentiary hearing on a
post-conviction petition is not absolute. A hearing
may be denied if a petitioner’s claim is patently
frivolous and is without a trace of support either in
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the record or from other evidence. A post-conviction
petition may not be summarily dismissed, however,
as “patently frivolous” when the facts alleged in the
petition, if proven, would entitle the petitioner to
relief.
Commonwealth v. Granberry, 644 A.2d 204, 208 (Pa.Super. 1994), citing
Commonwealth v. Box, 451 A.2d 252 (Pa.Super. 1982).
With respect to appellant’s claims of ineffective assistance, we note
that appellant is required to make the following showing in order to succeed
with such a claim: (1) that the underlying claim is of arguable merit;
(2) that counsel had no reasonable strategic basis for his or her action or
inaction; and (3) that, but for the errors and omissions of counsel, there is a
reasonable probability that the outcome of the proceedings would have been
different. Commonwealth v. Rivera, 10 A.3d 1276, 1279 (Pa.Super.
2010). The failure to satisfy any prong of this test will cause the entire
claim to fail. Commonwealth v. Daniels, 947 A.2d 795, 798 (Pa.Super.
2008). Finally, counsel is presumed to be effective, and appellant has the
burden of proving otherwise. Commonwealth v. Pond, 846 A.2d 699, 708
(Pa.Super. 2003).
Appellant first argues the PCRA court erred in dismissing his petition
without an evidentiary hearing as his petition set forth “unresolved
controversies of material fact.” (Appellant’s brief at 10-11.) Appellant
claims that the Commonwealth committed a Brady2 violation by concealing
2
Brady v. Maryland, 373 U.S. 83 (1963).
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certain fingerprint evidence and trial counsel was ineffective for failing to
object. Specifically, appellant argues that the Commonwealth divulged there
were other and/or smaller fingerprints on the manila folder found at the
scene, and these would have been exculpatory since “the Commonwealth
offer[ed] no eyewitness identification or substantial evidence that might
reasonably individualize Appellant as the actor here any more than it would
Joe Schmoe.” (Appellant’s brief at 20.)
In Commonwealth v. Weiss, 986 A.2d 808, 814-815 (Pa. 2009), our
supreme court explained the law and standards to be applied in addressing a
Brady claim. As the court noted, the United States Supreme Court in
Brady held that due process is violated when the prosecution withholds
evidence favorable to a defendant. Id. at 814. To establish a violation of
Brady, a defendant is required to demonstrate: (1) the evidence was
suppressed by the Commonwealth, either willfully or inadvertently; (2) the
evidence was favorable to the defendant; and (3) the evidence was material,
in that its omission resulted in prejudice to the defendant. Commonwealth
v. Dennis, 17 A.3d 297, 308 (Pa. 2011); Commonwealth v. Lambert, 884
A.2d 848, 854 (Pa. 2005).
The burden rests with appellant to “prove, by reference to the record,
that evidence was withheld or suppressed by the prosecution.”
Commonwealth v. Paddy, 15 A.3d 431, 451 (Pa. 2011). There is no
Brady violation when the appellant knew or, with reasonable diligence,
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could have uncovered the evidence in question, or when the evidence was
available to the defense from non-governmental sources. Paddy, 15 A.3d
at 451; Lambert, 884 A.2d at 856. The omission, once established, must
be evaluated in the context of the entire record. Commonwealth v.
Green, 640 A.2d 1242, 1245 (Pa. 1994). Brady does not require the
disclosure of information “that is not exculpatory but might merely form the
groundwork for possible arguments or defenses.” Paddy, 15 A.3d at 450;
Lambert, 884 A.2d at 856. Similarly, Brady does not require the
prosecution to disclose “every fruitless lead” considered during the
investigation of a crime. Paddy, 15 A.3d at 451; Lambert, 884 A.2d at
857.
Appellant's claim fails for a number of reasons. First, and most
significantly, appellant fails to establish by reference to the record the
existence of the specific material he claims was not disclosed. Second, he
fails to demonstrate how he could not have ascertained the existence of
“other fingerprints” or “smaller prints” appearing on the manila file folder.
Appellant also fails to show that the alleged evidence was either material or
exculpatory. Finally, appellant fails to establish that even if the alleged
material was disclosed, a different verdict would have likely occurred, and
therefore, there was no prejudice. As appellant’s underlying claim is
meritless, counsel could not be found to be ineffective. Hence, appellant is
not entitled to relief.
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Next, appellant argues that the PCRA court erred by granting
appointed counsel’s leave to withdraw. (Appellant’s brief at 38.) The heart
of his claim seems to be that counsel did not communicate with him before
determining his issues were “wholly frivolous.” (Id.) Appellant, however,
was advised of his opportunity to respond to counsel’s no-merit letter and
address the merits of his contentions. Appellant’s requests for additional
time to retain private counsel were granted; neither a counseled response
nor a pro se response was filed. We cannot find that the PCRA court erred
by permitting Attorney Pass to withdraw and by relying on the no-merit
letter. No relief is due.
The final issue presented is whether the PCRA court properly dismissed
the petition without disposing of issues appellant stated he wished to raise in
a motion for an extension of time to hire counsel and/or amend the original
pro se petition. As stated, the PCRA court granted appellant two extensions
of time.3 In its Rule 1925(a) opinion, the PCRA court detailed why each of
appellant’s 16 claims were meritless. Appellant is not entitled to relief.
Order affirmed.
3
Additionally, the PCRA court did not dismiss appellant’s petition until
August 19, 2013; appellant failed to file an amended petition or to obtain
counsel for over two years.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/10/2015
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