Com. v. Dale, L.

J-S60021-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee

v.

LOUIS DALE

Appellant No. 3565 EDA 2014

Appeal from the PCRA Order December 2, 2014
In the Court of Common Pleas of Delaware County
Criminal Division at No(s): CP-23-CR-0001184-2010

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

MEMORANDUM BY OTT, J.: FILED NOVEMBER 17, 2015

Louis Dale appeals pro se from the order entered on December 2,

2014, in the Court of Common Pleas of Delaware County, denying him relief,

without a hearing, on his petition filed pursuant to the Post Conviction Relief

Act (PCRA), 42 Pa.C.S. § 9541 et seq. In this timely appeal, Dale raises

eight issues for our review.1 The Honorable Kevin F. Kelly has authored an
____________________________________________

1
The issues are: (1) error in failing to appoint counsel for the instant
appeal; (2) error in failing to consider Dale’s subsequent petition raising
Alleyne v. United States, 133 S.Ct. 2151 (2013), as a continuation of the
instant petition rather than as a separate petition; (3) error in dismissing the
petition without a hearing; (4) PCRA counsel ineffectiveness for failing to
comply with the dictates of Commonwealth v. Turner, 544 A.2d 927 (Pa.
1988), and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988; (5)
PCRA counsel ineffectiveness for failing to develop and investigate Dale’s
PCRA claims; (6) pre-trial counsel ineffectiveness for failure to investigate
possible defense or to file pre-trial motions, including a motion to suppress;
(7) trial counsel ineffectiveness for failure to object to misstatements of
(Footnote Continued Next Page)
J-S60021-15

exhaustive, 79 page, Pa.R.A.P. 1925(a) opinion that comprehensively

addresses Dale’s issues and which demonstrates the errors and fallacies of

those issues. Accordingly, we affirm on the basis of that sound decision. In

light of the thoroughness of the PCRA court opinion, we refer the reader to

pages 1-10 of that decision for the factual and procedural history. We

simply note that Dale was convicted by a jury of the armed robbery of

Darren Brooks on December 4, 2009, and that the police were led to Dale

due to his suspected involvement in another recent robbery.

Regarding Dale’s substantive claims2:

Issue one, regarding the failure to appoint counsel for this appeal, is

discussed at pages 10-13;

Issue two, regarding Alleyne v. United States, is discussed at pages 13-

23;3
_______________________
(Footnote Continued)

evidence by Commonwealth counsel and failure to call alibi witnesses; and
(8) trial counsel ineffectiveness for failure to object to misstatements by
Commonwealth counsel during closing argument.
2
We address the claims in the order Dale raised them. The PCRA reordered
the issues, addressing issue three, last. Additionally, the PCRA court opinion
addresses nine issues rather than eight because the PCRA court broke issue
six, regarding claims of pre-trial ineffectiveness into two numbered issues,
as there were two lawyers involved in pre-trial activities.
3
Regarding Dale’s claim that his sentence is illegal per the United States
Supreme Court decision in Alleyne, Dale has argued he was subjected to a
mandatory minimum sentence pursuant to 42 Pa.C.S. § 9712 regarding
sentences committed for offenses committed with firearms. The PCRA court,
however, correctly noted his mandatory sentence was based upon his status
as a recidivist. See 42 Pa.C.S. § 9714(a)(1); Certificate of Imposition of
(Footnote Continued Next Page)

-2-
J-S60021-15

Issue three, regarding dismissal of the instant petition without a hearing, is

discussed at pages 73-74;

Issues four and five, regarding PCRA counsel ineffectiveness, are discussed

at pages 23-31;

Issue six, regarding the failure to file pre-trial motions and explore defenses,

is addressed at pages 31-49;

Issues seven and eight, regarding the failure to object to misstatements at

trial and in closing argument are addressed at pages 49-72, 75-77.

Our standard of review for the denial of relief of a PCRA petition is well

settled:

On appeal from the denial of PCRA relief, our standard of review
calls for us to determine whether the ruling of the PCRA court is
supported by the record and free of legal error. The PCRA court's
findings will not be disturbed unless there is no support for the
findings in the certified record.

Commonwealth v. Lewis, 63 A.3d 1274, 1278 (Pa.Super. 2013) (citation

omitted).

_______________________
(Footnote Continued)

Judgment of Sentence, 9/28/2010. The trial court conducted a pre-trial
colloquy with Dale, regarding his decision to go to trial, that clearly
explained the nature of the mandatory sentence he was facing. See N.T.
Trial, 7/13/2010, at 3-15. During this same colloquy, Dale stated he was
satisfied with counsel’s representation and counsel had done everything
requested of him. These statements, although not under oath, support the
PCRA court’s conclusions rejecting Dale’s claims of pre-trial ineffective
assistance of counsel.

-3-
J-S60021-15

Our review of the certified record demonstrates the PCRA court’s

denial of Dale’s petition, without a hearing, is supported by the record and

free from legal error. Accordingly, the order of December 2, 2014, denying

Dale relief is affirmed.

Order affirmed. Parties are directed to attach a copy of the PCRA

court’s June 17, 2015, opinion in the event of further proceedings.
Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 11/17/2015

-4-
 Circulated 10/30/2015 02:48 PM

IN THE COURT OF COlYIMON PLEAS OF DELAWARE COUNTY, PENNSYLVANIA
CRIMJNAL

COMMONWEAL TH OF PEJ\1NSYL VANIA NO. 1184-10

v.

LOUIS DALE

John F.X. Reilly, Esquire- Deputy District Attorney for the Commonwealth
Louis Dale - Pro Se

OPINION

Kelly, J. Date: June 17, 2015

A criminal complaint was filed on or about ·February 4, 2010, by Detective Joseph

Houghton, Yeadon Borough Police Department, charging Louis Dale (hereinafter referred to as

"Defendant" or "Dale"), inter alia, with Robbery' and Possessing Instruments of Crime.2

A preliminary hearing was held on February 19, 2010, before the Magisterial District

Court during which the prosecution moved to amend its criminal complaint to add the allegation

of Criminal Conspiracy' to commit all other already charged offenses. N.T. 2/19/10, pp. 20-22.

After the Commonwealth's presentation of evidence, the presiding Magisterial District Judge

held the Defendant for trial court purposes as to all prosecuted offenses, including the amended

·· Criminal Conspiracy" charge. N.T. 2/19/10, pp. 27-30.

Defendant Dale was formally arraigned before the trial court on or about March 18, 2010,

at which time the Office of the Delaware County District Attorney lodged against him Criminal

1
l 8 Pa.C.S. § 370 l.
2
18 Pa.C.S. § 907.
3
J 8 Pa.C.S. § 903.
4
Id.
 Circulated 10/30/2015 02:48 PM

Informations averring, inter alia, as follows: Information A - Robbery5 and Information F -

Possessing Instruments of Crime.6 See Criminal Informations.

The Delaware County Public Defender's Office determined that at bar the Defendant was

eligible for its professional services, and Defendant Dale was thus initially represented before the

trial court by Assistant Public Defender, Arthur J. Modesti, Esquire. On May 6, 2010, private

counsel, Scott L. Kramer, Esquire, entered his appearance on behalf of the Defendant and

assumed for the balance of proceedings before this court, including trial and sentencing,

Defendant Dale's stewardship.

A jury trial commenced on July 13, 2010, before this court and concluded the next day

(July 14, 2010). N.T. 7/13/10 and 7/14/10. As to all prosecuted charges/ Information A -

Robbery,8 a felony of the first degree, and Information F - Possessing Instruments of Crime,9 a

first degree misdemeanor, the jury found Defendant Dale guilty. N.T. 7/14/10, pp. 111-16. See

also Jury's Verdict.

Confirming its oral, of-record, notice offered in open court immediately subsequent to the

verdict's recording, the Commonwealth lodged written notice on or about July 28, 2010, further

memorializing, inter alia, its invocation of the Sentences for Second and Subsequent Offenses

mandatory minimum sentencing provisions material to Information A - Robbery.10 See

Commonwealth's Sentencing Notice. See also 42 Pa.C.S. § 9714.

s 18 Pa.C.S. § 3701.
6
18 Pa.C.S. § 907.
7
Immediately prior to the commencement of the trial's evidentiary presentation, without objection, the
Commonwealth, of-record, withdrew the balance of its past filed Criminal Informations. N.T. 7/13/10, pp. 15-17.
8
18 Pa.C.S. § 3701.
9
l8Pa.c.s. § 907.
1018Pa.C.S.
§ 3701.
2
 Circulated 10/30/2015 02:48 PM

A sentencing bearing was held on September 28, 2010, before this court. N.T. 9/28/10.

Defendant Dale's prior, first degree felony Robbery'! conviction was established via the

stipulation of counsel and unsolicitedly acknowledged of-record by the Defendant. N.T. 9/28/10,

pp. 13-14, 17-18. See also Commonwealth v. Dale, No. 5936-96 - Delaware County. Finding

the prosecution had sufficiently established the applicability of the Sentences for Second and

Subsequent Offenses' mandated provisions, 12 the court in the aggregate imposed a sentence of

ten (l 0) through twenty (20) years incarceration to be served at a state correctional institution.13

N.T. 9/28/10, pp. 20-28. See also Certificate of Imposition of Judgment of Sentence. No post-

sentence motions were lodged.

On September 27, 2010, trial counsel, Mr. Kramer, lodged a Petition for Leave to

Withdraw Appearance. Immediately following the imposition of sentence on September 28,

2010, by order also of that date (September 28, 20 l 0), the court granted this withdrawal petition.

See Order dated September 28, 2010.

Defendant Dale on or about October 27, 2010, filed a counseled Notice of Appeal from

his sentencing judgment with the Superior Court of Pennsylvania. See Superior Court No. 2944

EDA 2010. Contemporaneous with his lodging of the appeal notice, Assistant Public Defender

Patrick J. Connors, Esquire entered his office's appearance on behalf of Defendant Dale. See

Entry of Appearance dated October 27, 2010.

Via order of November 16, 20 l 0, this court directed the Defendant's attorney to file

of-record a Concise Statement of Matters Complained of on Appeal. See Order dated November

11 ld.
12
42 Pa.C.S. § 9714(a)(I).
13
No objection was raised by defense counsel at sentencing relevant to the adequacy of the Commonwealth's
mandatory minimum sentencing invocation notice. N.T. 9/28/10, pp. 3-4. See 42 Pa.C.S. § 9714(d).
3
 Circulated 10/30/2015 02:48 PM

16, 2010. See also Pa.R.A.P. 1925(b). Responding to this order (November 16, 2010),

Defendant Dale's lawyer timely filed on December 3, 2010, a Statement of Matters Complained

advancing the sole issue that the trial court erred when it failed during voir dire to inquire of the

venire whether any of the panelists would be unable to follow the instruction of law that the

jury's verdict must be unanimous. See Statement of Matters Complained, dated December 3,

2010.

This court on or about February 4, 2011, lodged its opinion concluding the Defendant's

appellate error assignment had been waived. See Trial Court Opinion, pp. 4-5.

The Superior Court by opinion dated September 9, 2011, affirmed the Defendant's

sentencing judgment finding that the singular claim advanced on direct appeal had been waived.

See Superior Court No. 2944 EDA 2010, Opinion, p. 2.

Defendant Dale on or about October 11, 2011, filed with the Pennsylvania Supreme

Court a Petition for Allowance of Appeal. See Supreme Court No. 765 MAL 2011.

The Supreme Court of Pennsylvania per its order dated January 5, 2012, denied the

Defendant's allowance of appeal petition. See Supreme Court No. 765 MAL 2011, Order dated

January 5, 2012. The Defendant did not lodge with the United States Supreme Court a Petition

for Writ of Certiorari.

Defendant Dale on or about March 28, 2012, filed pro se his initial Petition for Post

Conviction Collateral Relief See Defendant's Petition. This original collateral petition being

his first PCRA pleading the Defendant for such purposes was entitled to counsel's assistance.

See Commonwealth v. Perez, 799 A.2d 848, 851-52 (Pa.Super. 2002) citing Commonwealth v,

Guthrie, 749 A.2d 502, 504 (Pa.Super. 2000); Commonwealth v. Ferguson, 722 A.2d 177, 179

(Pa.Super. 1998); and Commonwealth v. Hampton, 718 A.2d 1250, 1252-53 (Pa.Super. 1998).

4
 Circulated 10/30/2015 02:48 PM

See also Commonwealth v. Ramos, 14 A.3d 894, 895-96 (Pa.Super. 201]) and Commonwealth v.

Luckett, 700 A.2d 1014, 1016 (Pa.Super. 1997). Per order dated March 30, 2012, and consistent

with his request for counsel's stewardship, Henry DiBenedetto Forrest, Esquire was for this

initial collateral action appointed to represent the Defendant. See Defendant's Petition, p. 31 and

Order dated March 30, 2012.

Subsequent to his requesting and being granted an extension of time within which to

lodge of-record an amended PCRA pleading, appointed counsel in compliance with the dictates

of Commonwealth v. Finley, 481 U.S. 551, 558-59, 107 S.Ct. 1990, 1995 (1987), Commonwealth

v. Turner, 518 Pa. 491, 495, 544 A.2d 927, 928-29 (1988) and Commonwealth v. Friend, 896

A.2d 607, 614-15 (Pa.Super. 2006) filed on or about August 15, 2013, an «Application to

Withdraw Appearance" and supporting "No Merit Letter." See "Application to Withdraw" and

"No Merit Letter." By his "No Merit Letter," the Defendant's lawyer based on his

comprehensive, advocate's review of the salient record and related investigation concluded

Defendant Dale's various explicit and/or implicit collateral claims raised by the Defendant's

original PCRA pleading lacked merit and/or otherwise were unsupported by the material record.

See "No Merit Letter," pp. 1-2, 10.

The Defendant on or about August 26, 2013, filed prose a Petition for Extension of Time

to File Response to "No Merit Letter." See Defendant's Extension Petition. Through this

extension petition, the Defendant requested leave of court to submit in support of his initial

collateral challenges additional legal authorities, other supportive documents, and/or relevant

witness affidavits. See Defendant's Extension Petition, p. 1. The court by order dated August

30, 2013, granted Defendant Dale's request for an extension of time to submit his supplemental

legal argument and/or other supportive factual materials. See Order dated August 30, 2013.

5
 Circulated 10/30/2015 02:48 PM

On September 20, 2013, the Defendant filed Petitioner's Response to Counsel's "No

Merit Letter."14 See Petitioner's Response to "No Merit Letter."

Defendant Dale on June 26, 2014, lodged pro se his Subsequent Petition for Post

Conviction Collateral Relief. 15 See Defendant's Subsequent Petition.

By his subsequent petition, the Defendant sought to have his mandatory minimum

sentence (Information A - Robberyj " set aside and that he be afforded a de novo sentencing

hearing. See Defendant's Subsequent Petition, p. 8. More specifically, Defendant Dale

maintained that his ten (10) year mandatory minimum sentence pursuant to the Sentences for

Second and Subsequent Offenses17 ran afoul of the constitutional teachings per the United States

Supreme Court in Alleyne v. United States, 133 S.Ct. 2151 (2013).18 See Defendant's

Subsequent Petition, p. 2.

14
It was only on its receipt of the· Defendant's later submitted prose Petitioner's Combined Response to the Trial
Court's Notice of Intent to Dismiss Without a Hearing (August 8, 2014) that this court became aware Defendant
Dale bad past lodged bis requested response to appointed counsel's "No Merit Letter" as for whatever the reasons
the Delaware County Office of Judicial Support on the response's lodging did not forward the same. See ·
Petitioner's Combined Response and Petitioner's Response to "No Merit Letter." After being so alerted to the
Defendant having seemingly past filed bis response to the "No Merit Letter," this court finally was able to secure
from the Judicial Support Office of Delaware County his Petitioner's Response to Counsel's "No Merit Letter." See
Petitioner's Response to "No Merit Letter."
15
This subsequent collateral pleading advanced a sentencing legality claim wholly separate and discrete from any of
the challenges the Defendant's original PCRA petition raised. See Defendant's Petition and Defendant's Subsequent
Petition.
16
18 Pa.C.S. § 370 l(a)(l)(ii).
17
42 Pa.C.S. § 9714.
18
In addition to his Alleyne driven challenge to the sentence at bar's legality, the Defendant most generally
advanced a claim that bis ten (10) through twenty (20) year Incarceration term exceeded the lawful statutory
maximum, See Defendant's Subsequent Petition, p. 2. Bald, undeveloped averrnents fail to satisfy a defendant's
burden of establishing entitlement to PCRA relief when such allegations are boiler plate, constitutional claims.
Commonwealth v. Hall, 582 Pa. 526, 535, 872 A.2d 1177, 1182 (2005) and Commonwealth v. Washington, 583 Pa.
566, 573-74, 880 A.2d 536, 540-41 (2005).

Moreover, Defendant Dale was found guilty by the jury of perpetrating a robbery through means of intentionally
placing his victim in fear of immediate serious bodily injury, 18 Pa.C.S. § 370l(a)(l)(ii). N.T. 7/14/10, pp. 112-13:
See also Jury's Verdict. This mode of robbery (intentionally placing victim in fear of immediate serious bodily
injury) was a first degree felony, 18 Pa.C.S. § 370l(b)(l). The statutory maximum period of imprisonmentsalient to
6
 Circulated 10/30/2015 02:48 PM

Because of the discreet nature of the claims raised by bis first versus bis second PCRA

petitions and recognizing that the resolution of the original collateral filing was grounded on

appointed counsel's "No Merit Letter" in combination with its independent case record review,

the court on July 29, 2014, entered of-record two (2) respective dismissal notices, one (1)

adopting the defense attorney's "No Merit Letter" rationale and granting Mr. DiBenedetto

Forrest's withdrawal application" salient to the first PCRA petition while the other detailed with

robbery - intentionally place victim i:n fear of immediate serious bodily injury (J 8 Pa.C.S § 3701 (b)), a felony of the
first degree, is twenty (20) years imprisonment. See 18 Pa.C.S. § J 103(1 ). This court's aggregate sentence of ten
(10) through twenty (20) years incarceration comported with the salient statutory maximum and was thus
unquestionably lawful. See Certificate of Imposition of Judgment of Sentence. See generally 42 Pa.C.S.
§ 9543(a)(2)(vii) and Commonwealth v. Lewis, 430 Pa.Super. 336, 343, 634 A.2d 633, 636 (1993) citing
Commonwealth v, Grier, 410 Pa.Super. 284, 288, 599 A.2d 993, 995 (1991).
19
On the Defendant's pro se lodging of his Subsequent Petition for Post Conviction Collateral Relief as discussed
infra, the court reviewed the salient case record and based on the filings then available to it, inter alia, concluded as
below regarding the Defendant's prose Petition for Extension of Time to File Response to "No Merit Letter:"

Despite being afforded the requested opportunity to provide such to this court,
the Defendant to date bas submitted in support of his original PCRA petition no
additional legal authorities, no relevant documents of any kind, and not a single
witness affidavit similar to his not having provided appointed counsel affidavits
of any potential witnesses as the instant collateral filing and extension petition
so averred.

See Dismissal Notice of Original Collateral and Order, dated July 29, 2014, Fn. 2. See also Defendant's Extension
Petition; Order dated August 30, 2013; and "No Merit Letter."

Once having received from the Judicial Support Office the Defendant's reply to his lawyer's "No Merit Letter,"
the court reviewed the same and in the context of that which the response set forth once more independently
examined the relevant case record. In such regard, inter alia, the court noted that based on bis advocate's
examination of the salient case record and related investigation, including but not limited to reviewing the trial
attorney's file and discussing such concerns with him, collateral counsel per bis "No Merit Letter" concluded that
below:

The record initially indicates that Defendant's wife, Shavon Jenkins testified in
Defendant's case to assist in the alleged alibi . .. . Isiah Matthews .... and
Natasha Dale (sister of Defendant) were also interviewed in advance of trial.
Based on this investigation, the undersigned submits that trial counsel
strategically determined that no exculpatory evidence would have been elicited,
and it was otherwise not in defendant's interest to call said witnesses. While
there did not to appear to be an issue regarding the availability of said witnesses,
the use of such a testimony, if elicited, would have not have been helpful to the
defendant. Counsel clearly had a reasonable basis for not utilizing said
witnesses at trial, which rationale concludes that counsel rendered affective
assistance.
7
 Circulated 10/30/2015 02:48 PM

the factual findings and legal conclusions the court's reasoning underlining its intent to dismiss,

absent a hearing, the Defendant's second, sentencing driven collateral petition. See Dismissal

Notices, dated July 29, 2014.

On August 8, 2014, the Defendant filed Petitioner's Combined Response to the Trial

Court's Notice ofintent to Dismiss Without a Hearing.20 See Petitioner's Combined Response.

Without seeking such and/or the court granting him that leave, Defendant Dale on

October 6, 2014, submitted an Amendment to Subsequent Petition for Post Conviction Collateral

Relief.21 See Defendant's Amendment to Subsequent Petition.

"No Merit Letter," p. 7. (Emphasis added).
20
Defendant Dale appended to his combined response a copy of a letter from Scott D. Galloway, Esquire indicating
a belief he was appointed for purposes of the second collateral petition to represent the Defendant's interests. See
Petitioner's Combined Response.

On its review of the Defendant's subsequent PCRA petition in recognizing that it set forth a sentencing legality
attack wholly discreet and independent of any of those claims his original collateral petition advanced, the court
opted not to again appoint counsel, but instead to first conduct its independent case record review believing the legal
nature of this collateral claim would readily allow its resolution without an evidentiary bearing. Pa.R.Crim.P.
904(D). See also Commonwealth v. Smith, 572 Pa. 572, 577-85, 818 A.2d 494, 496-501 (2003) quoting
Pa.R.Crim.P. 904; Commonwealth v, Rykard, 55 A.3d 1177, 1187 (Pa.Super, 2012); and Commonwealth v. Glacken,
32 A.3d 750, 753 (Pa.Super. 2011).

Pursuant to longstanding administrative practices, the Office of Judicial Support on the Defendant's prose lodging
of bis subsequent petition forwarded the same to this court along with notification that in the event it was determined
counsel should be appointed, Mr. Galloway per such relevant protocols was to be designated such. Despite this
court never having so acted, judicial support personnel assumed Mr. Galloway's appointment and erroneously noted
such of-record on the case docket. After discussions with the Delaware County Judicial Support Office Director and
the Office of Judicial Support' s inability to produce the order of another jurist appointing Mr. Galloway stewardship
of the Defendant's interests material to the second PCRA pleading, the case record was corrected to accurately
reflect this matter's events.
21
In his prose lodging of this petition, the Defendant neither sought nor did this court grant him leave to so amend
his subsequent collateral filing attacking his conviction's legality. See Commonwealth v, Rykard supra 55 A.3d at
1192 citing Commonwealth v. Williams, 551 Pa. 207, 252-53, 732 A.2d 1167, 1191 (1999); Commonwealth v.
Paddy, 609 Pa. 272, 339-40, 15 A.3d 431, 471 (2011); Commonwealth v. Porter, 613 Pa. 510, 523-24, 35 A.3d 4, 12
(2012); Commonwealth v, D'Amato, 579 Pa. 490, 522, Fn. 19, 856 A.2d 806, 825, Fn. 19 (2004); and
Commonwealth v. Derrickson, 923 A.2d 466, 469 (Pa.Super, 2007).
8
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The court by order dated December 2, 2014, dismissed both the Defendant's original

Petition for Post Conviction Collateral Relief and his Subsequent Petition for Post Conviction

Collateral Relief.22 See Order dated December 2, 2014.

On December 12, 2014, the Defendant lodged a timely pro se Notice of Appeal. See

Notice of Appeal. The court instructed Defendant Dale via order dated December 23, 2014, to

file a Concise Statement of Matters Complained of on Appeal. See Order dated December 23,

2014.

Per a separate order of the same date (December 23, 2014), the court granted in part and

denied in part the Defendant's Combined Request for Leave to Proceed in Forma Pauperis [sic]

and for Appointment of Counsel on Appeal. See Order dated December 23, 2014. The court

allowed Defendant Dale's application for leave to proceed in forma pauperis, but refused his

request for an appellate attorney's appointment. See Order dated December 23, 2014.

Responding to this court's order (December 23, 2014), directing the same, Defendant

Dale timely lodged on December 31, 2014, a prose statement of appellate complaints raising

nine (9) assignments of error.

The majority of the Defendant's appellate complaints maintain he was afforded

professionally incompetent representation by his pretrial, trial, and collateral attorneys. See

Statement of Matters Complained, Nos. 4, 5, 6, 7, 8. Such error assignments will be addressed

collectively below with individualized discussion as necessary salient to certain of these

challenges to counsel's stewardship, along with the related claim this court erred in the dismissal

of Defendant Dale's initial PCRA petition, absent a hearing. See Statement of Matters

22
As part of its deliberative processes material to the dismissal order's entry, the court fully reviewed and
considered that set forth by the Defendant via his Petitioner's Combined Response to the Trial Court's Notice of
Intent to Dismiss Without a Hearing. See Defendant's Combined Response. See also Order dated December 2,
2014.
9
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Complained, No. 3. The Defendant also advances via his final error assignment as discussed

infra a generalized prosecutorial misconduct claim. See Statement of Matters Complained, No.

9, compared to No. 8. The Defendant's two (2) remaining complaints on appeal contending

errors on the part of this court in refusing his request to appoint appellate counsel regarding the

dismissal of the original PCRA.petition and not by considering his subsequent collateral filing an

"extension" of his initial such lodging will be first addressed. See Statement of Matters

Complained, Nos. 1, 2.

L Did the trial court err in denying appellant's Request/or Appointment of Counsel on Appeal
from the order dismissing Appellant's initial PCRA petition?

See Statement of Matters Complained, No. l.

By way of this first appellate complaint, Defendant Dale maintains that the court erred in

its denial of his request for the appointment of counsel on the present appeal as it relates to

" ... the order dismissing Appellant's initial PCRA. Petition .... "23 See Statement of Matters

Complained, No. 1. See also Defendant's Combined Request ... for Appointment of Counsel on

Appeal and Order dated December 23, 2014. This error assignment on the instant record is

without merit.

"An indigent petitioner is entitled to appointment of counsel on his first PCRA.

petition .... " Commonwealth v. Perez supra 799 A.2d at 851-52 (Emphasis added) citing

Commonwealth v. Guthrie supra 749 A.2d at 504; Commonwealth v, Ferguson supra 722 A.2d

23
By the plain terms of this error assignment and his statement of complaints otherwise, the Defendant does not take
issue with the court having declined for purposes of his subsequent collateral petition challenging the lawfulness of
the sentence at bar to once more appoint counsel, See Statement of Matters Complained, No. l. Hence, this court
will offer no further discussion regarding its decision to not again appoint a lawyer to represent Defendant Dale oo
the pro se lodging of bis subsequent petition beyond that already described above and detailed per the order of
dismissal (December 2, 2014). Pa.R.A.P 1925(b)(4)(vii) ("Issues not included in the statement aod/or not raised in
accordance with the provisions of this paragraph (b)(4) are waived.") See also Commonwealth v. Mann, 820 A.2d
788, 794 (Pa.Super. 2003), appeal denied, 574 Pa. 759, 83 I A.2d 599 (2003) and Commonwealth v. Cannon, 954
A.2d 1222, 1228 (Pa.Super. 2008).
10
 Circulated 10/30/2015 02:48 PM

at 179; and Commonwealth v. Hampton supra 718 A.2d at 1252-53. See also Commonwealth v.

Ramos supra 14 A.3d at 895-96 and Commonwealth v. Luckett supra 700 A.2d at 1016.

The court appointed Attorney DiBenedelto Forrest as counsel for the Defendant with the

prose lodging of his first post conviction collateral relief petition. See Order dated March 30:

2012. See also Defendant's Petition. Mr. DiBenedetto Forrest on or about August 15, 2013,

filed an "Application to Withdraw Appearance" and supporting "No Merit Letter." See

"Application to Withdraw" and "No Merit Lener." See also Commonwealth v. Finley supra 481

U.S. at 558-59, 107 S.Ct. at 1995; Commonwealth v. Turner supra 518 Pa. at 495, 544 A.2d at

928-29; and Commonwealth v. Friend supra 896 A.2d at 614-15. On July 29, 2014, this court

granted the appointed counsel's "Application to Withdraw Appearance." See Dismissal Notice

of Original Petition and Order, dated July 29, 2014.

Defendant Dale on December 12, 2014, lodged his Combined Request ... for

Appointment of Counsel on Appeal. By way of this request, the Defendant, inter alia, sought at

bar his second appointment of counsel in order to raise ineffectiveness claims on appeal against

h.is first appointed, collateral lawyer. Defendant Dale noted per his appointment of appellate

counsel request that "[tjhe record is not clear as to whether or not the Court has granted former

counsel's Application to Withdraw Appearance." See Defendant's Combined Request ... for

Appointment of Counsel on Appeal. Despite this assertion, the instant record clearly

demonstrates that this court granted originally appointed counsel's withdrawal application via its

July 29, 2014, dismissal notice and related order. See Dismissal Notice of Original Collateral

Petition and Order, dated July 29> 2014.

On December 23, 2014, this court denied the Defendant's Combined Request ... for

Appointment of Counsel on Appeal. See Order dated December 23, 2014. This denial of the

11
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Defendant's application for counsel was grounded in the court's prior decision to allow the past

appointed collateral attorney's withdrawal request. The court concurred on its independent case

examination with appointed counsel relevant to Defendant Dale's first PCRA petition that such

collateral complaints were meritless and/or unsupported by the material record. The court

relatedly permitted via order Attorney DiBenedetto Forrest's requested withdrawal. See

Dismissal Notice of Original Petition and Order, dated July 29, 2014. See also Pa.R.Crim.P.

J20(B)(l)(2). The Defendant was not again entitled to the appointment of a lawyer to pursue an

appeal from the resulting denial of this same PCRA pleading. Commonwealth v. Perez supra

799 A.2d at 851-52 citing Commonwealth v. Gutherie supra 749 A.2d at 504.

Moreover, Defendant Dale's assertion that a second court appointment was needed to

advance claims of ineffectiveness against his collateral counsel is of no moment as such

allegations are to be raised in a defendant's response to a court's dismissal notice and not for the

first time on appeal. See Commonwealth v. Henkel, 90 A.3d 16, 20 (Pa.Super. 2014) and

Commonwealth v. Ford, 44 A.3d 1190, 1198 (Pa.Super. 2012) ("[W]hen counsel files a

Turner/Finley no-merit letter to the PCRA court, a petitioner must allege any, claims of

ineffectiveness of PCRA counsel in a response to the court's notice of intent to dismiss.") citing

Commonwealth v. Pitts, 603 Pa. 1, 9, Fn. 4, 981 A.2d 875, 880, Fn. 4. The Defendant did in fact

by his Petitioner's Response to Counsel's "No Merit" Letter challenge his collateral lawyer's

stewardship and has pursued on the instant appeal some of those same attacks. See Petitioner's

Response to "No Merit Letter" and Statement of Matters Complained, Nos. 4, 5.

Having reviewed his appointed attorney's "No Merit Letter" as well as the case record

and determined the collateral claims of Defendant D~e's initial PCRA petition were meritless

and/or lacked on the salient record adequate support, this court granted counsel's withdrawal

12
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application. See Dismissal Notice of Original Petition and Order, dated July 29. 2014. The

Defendant was not thereafter once more entitled to counsel's appointment. In denying

Defendant Dale's request that he again be afforded counsel to pursue the instant appeal relevant

to the denial of his first collateral filing, this court for these reasons above believes it did not err.

See Order dated December 23, 2014.

11. Did the trial court err in failing to consider Appellant's subsequent PCRA Petition (citing
Alleyne v. Unites States) as a continuation of his PCRA petition?

See Statement of Matters Complained, No. 2.

Defendant Dale contends per this appellate complaint that the court was mistaken in

considering the Defendant's Subsequent PCRA petition as an entirely separate and distinct

PCRA petition versus a continuation of his original PCRA petition. See Statement of Matters

Complained, No. 2.

It is only for the first time on appeal via his statement of appellate complaints that

Defendant Dale advances his "extension" argument. Defendant Dale lodged his first PCRA

petition on March 8, 2012. See Defendant's Petition. He then filed on June 26, 2014, bis second

collateral pleading. See Defendant's Subsequent Petition. A fair reading of the subsequent

petition reveals that while the Defendant was obviously well aware the timing of its filing was

problematic, he did not cite explicitly or implicitly that this second collateral pleading was an

"extension" of his first PCRA petition, but rather averred what he believed to be an applicable

exception to the Post Conviction Relief Act's one (1) year lodging mandate. See Defendant's

Subsequent Petition, pp. 2-4. On July 29, 2014, this court filed its dismissal notice regarding the

later PCRA petition and detailed, inter alia, that this collateral pleading was untimely. See

Dismissal Notice of Subsequent Petition, dated July 29, 2014, pp. 6-11. Similar to his

subsequent petition, Defendant Dale by his response to the court's dismissal notice did not
13
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Circulated 10/30/2015 02:48 PM

directly or indirectly set forth the argument his subsequent petition was an «extension" of his

first original collateral pleading was timely lodged. See Petitioner's Combined Response. The

Defendant via his amended petition also recognized the subsequent petition's filing was on its

face untimely and once more cited what he believed to be the statutory exception material to the

Post Conviction Relief Act's one (l) year date certain filing requisite, yet again Defendant Dale

did not explicitly and/or implicitly maintain that as an "extension" of the original PCRA petition

this later collateral pleading was timely lodged. See Defendant's Amendment Petition, p. 4.

While not directly advanced by the Defendant, his claim on appeal that this second collateral

filing was merely an "extension" of his original PCRA petition is a belated effort to avoid the

statutory time bar and the court resultantly lacking requisite jurisdiction. See generally 42

Pa.C.S. § 9543(b)(1)(3). The Defendant having failed to raise before this court his current

"extension" claim and opting to do so only for the first time at bar on appeal, this error

assignment for purposes of appellate review should be deemed waived. Pa.R.A.P. 302(a)

("Issues not raised in the lower court are waived and cannot be raised for the first time on

appeal."). See also Commonwealth v. Duffy, 832 A.2d 1132, 1137 (Pa.Super. 2003);

Commonwealth v. Tejada, 107 A.3d 786, 797 (Pa.Super. 2015); and Commonwealth v. Parker,

104 A.3d 17, 28 (Pa.Super. 2014).

Although believing that it did not err in refusing to consider Defendant Dale's subsequent

petition a simple "extension" of his first collateral filing, regardless of whether this court was

mistaken in not so viewing the Defendant's second PCRA petition, the collateral claim it

advances is without legal merit.

The Pennsylvania Supreme Court has rejected attempts " ... to circumvent the PCRA

time-bar by treating the second petition as an amendment to the first petition, where . . . the

14
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second petition was filed after the expiration of the PCRA. filing deadline." Commonwealth v.

Rienzi, 573 Pa. 503, 508, 827 A.2d 369, 371 (2003). The Supreme Court has further opposed the

notion that untimely collateral petitions may be viewed as "extensions" of previous collateral

petitions. See geneialiy Commonwealth v. Robinson, 575 Pa. 500, 837 A.2d 1157 (2003).

Tue Supreme Court of Pennsylvania in Commonwealth v. Porter observed, "[o'[ur

procedural Rules contemplate that amendments to pending PCRA petitions are to be 'freely

allowed to achieve substantial justice.' Pa.RCrim.P. 905(A)." Commonwealth v. Porter supra

613 Pa. at 523, 35 A.3d at 12. The Supreme Court further found in Porter that the

" ... appellant is mistaken in arguing that Rule 905 amendments are self-authorizing, i.e. that a

petitioner may simply "amend" a pending petition with a supplemental pleading. Rather the

Rule explicitly states that amendment is permitted only by direction or leave of the PCRA court."

Id. at 523-24, 35 A.3d at 12. See also Commonwealth v. Rykard supra 55 A.3d at 1192 citing

Commonwealth v. Williams supra 557 Pa. at 252-53, 732 A.2d at 1191; Commonwealth v. Paddy

supra 609 Pa. at 339-40, 15 A.3d at 471; Commonwealth v. D'Amato supra 579 Pa. at 522, Fn.

19, 856 A.2d at 825, Fn. 19; and Commonwealth v. Derrickson supra 923 A.2d at 469. The

Pennsylvania Supreme Court also noted that the defendant in Porter wrongly addressed new and

unrelated claims via his "amended" petition of his initial PCRA filing. Id. at 523-24, 35 A.3d at

12.

Although the record at bar certainly shows Defendant Dale did lodge an Amendment to

Subsequent Petition for Post Conviction Collateral Relief having learned from the court's

previously .filed dismissal notice of the second collateral petition's untimeliness, this pleading by

its plain terms neither requested leave to amend his past filing nor did this court grant him such

15
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relief. Pa.R.Crim.P. 905(A).24 See also Defendant's Amendment Petition. This unauthorized

attempted amendment to his subsequent petition does not bolster his effort to bring his second

collateral filing within mandated statutory time parameters as a simple "extension" of his first

PCRA petition. Commonwealth v. Porter supra 613 Pa. at 523, 35 A.3d at 12. See also

Commonwealth v. Rienzi supra 573 Pa. at 508, 827 A.2d at 371 and generally Commonwealth v.

Robinson supra.

Further, Defendant Dale averred in his subsequent PCRA petition entirely new and

unrelated challenges from those asserted in the Defendant's original PCRA petition. See

Subsequent PCRA Petition. See also Commonwealth v. Porter supra at 523-24, 35 A.3d at 12.

These separate and distinct claims all largely focused on the legality of the Defendant's sentence

through the teachings of Alleyne v. United States supra; however, the Defendant's initial PCRA

petition did not contain explicitly and/or implicitly any such sentencing challenge. See

Defendant's Petition and Subsequent PCRA Petition.

Defendant Dale's argument that he can avoid the patent time bar and the absence of this

court enjoying requisite jurisdiction under the guise that the wholly separate and distinct

sentencing challenge advanced via his belated subsequent petition was a mere extension of his

first collateral petition only attacking counsel's stewardship is failing. Commonwealth v. Porter

supra 613 Pa. at 523-24, 35 A.3d at 12. See also Commonwealth v. Rykard supra 55 A.3d at

1192 citing Commonwealth v. Williams supra 557 Pa. at 252-53, 732 A.2d at 1191;

Commonwealth v. Paddy supra 609 Pa. at 339-40, 15 A.3d at 471; Commonwealth v. D'Amato

24
Per this error assignment and his statement of complaints otherwise, Defendant Dale does not take issue with the
court having declined to recognize his attempted, self-authorizing amendment petition. Hence, this court wi!J offer
no further discussion regarding the Defendant's amendment petition beyond that detailed above salient to bis
"extension'' argument. Pa.R.A.P. 1925(b)(4)(vii) ("Issues not included in the statement and/or not raised in
accordance with the provisions of this paragraph (b)(4) are waived.") See also Commonwealth v. Mann supra 820
A.2d at 794 and Commonwealth v. Cannon supra 954 A2d at 1228.
16
 Circulated 10/30/2015 02:48 PM

supra 579 Pa. at 522, Fn. 19, 856 A.2d at 825, Fn. 19; and Commonwealth v. Derrickson supra

923 A.2d at 469.

With Defendant Dale's argument failing for these reasons detailed above that his

subsequent petition was a simple "extension" of bis original PCRA pleading, the untimely nature

of this filing on the instant record is unquestioned.

A defendant must file a PCRA petition, including a second or subsequent one(s) within

one (1) year from the date judgment of sentence becomes final. 42 Pa.C.S. § 9545(b)(l). A

sentencing judgment becomes final for purposes of the Post Conviction Relief Act " . . . at the

conclusion of direct review, including discretionary review in the Supreme Court of the United

States and the Supreme Court of Pennsylvania, or at the expiration of time for seeking the

review." 42 Pa.C.S. § 9545(b)(3). This otherwise mandated one (1) year filing date is excused

onJy if a defendant alleges and proves one of the statutory exceptions set forth in subsections (i),

(ii) and/or (iii) of the Act's Section 9545, relating to government interference, newly discovered

evidence, or a constitutional right recognized by the federal and/or state Supreme Courts that is

applied retroactively. 42 Pa.C.S. § 9545(b)(l)(i)(ii)(iii). Even should one or more of these

enumerated exceptions to the one (1) year lodging requisite attach, a defendant for purposes of

the court's necessary jurisdiction must file any such collateral pleading " . . . within 60 days of

the date the claim could have been presented.', 42 Pa.C.S. § 9545(b)(2).

The Superior Court has repeatedly held second or subsequent PCRA petitions untimely

when such collateral pleadings were not filed within one (1) year after a defendant's judgment of

sentence became final. Commonwealth v. Johnson, 945 A.2d 185, 188 (Pa.Super. 2008) and

Commonwealth v. Davis, 916 A.2d 1206, 1208-09 (Pa.Super. 2007). Moreover, a second or

additional PCRA petition will only be considered if a defendant demonstrates that the

17
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proceedings resulting in his conviction were so unfair that a miscarriage of justice occurred

which no civilized society can tolerate, or a defendant is innocent of the convicted crimes.

Commonwealth v. Lawson, 519 Pa. 504, 513-14, 549 A.2d 107, 112 (1988) and Commonwealth

v. Szuchon, 534 Pa. 483, 487, 633 A.2d 1098, 1100 (1993).

The Supreme Court of Pennsylvania on January 5, 2012, denied the Defendant's Petition

for Allowance of Appeal salient to direct appeJlate review of his convictions. See Supreme

Court No. 765 MAL 2011, Order dated January 5, 2012. Hence, after recognizing the ninety

(90) day period for filing a Petition for Writ of Certiorari to the United States Supreme Court,25

the sentencing judgment at bar became final on April 4, 2012. 42 Pa.C.S. § 9545(b)(3). See also

Sup.Ct.R. 13.1.

Thus, in order to satisfy the Post Conviction Relief Act's one (1) year filing mandate,

Defendant Dale was required to lodge his second PCRA pleading no later than April 4, 2013.

The Defendant's second PCRA petition was filed on June 26, 2014, approximately twenty-six

(26) months beyond the date his sentencing judgment at bar became final and accordingly this

coJlateraJ pleading on its face was patently untimely. See Defendant's Subsequent Petition.

While after the one (1) year filing mandate a defendant may lodge a collateral pleading

no more than sixty (60) days subsequent to the United States Supreme Court or the Supreme

Court of Pennsylvania recognizing the constitutional protection being asserted, those claimed

rights must be held by the Supreme Court of the United States and/or the Pennsylvania Supreme

Court to have retroactive application for an otherwise belated coJlateral filing to fall within the

relevant exception to the Post Conviction Relief Act's one (1) year lodging deadline necessary to

the court's jurisdictional authority. 42 Pa.C.S. § 9545(a)(b)(l )(iii). See also Commonwealth v.

2s
Defendant Dale did not lodge such a Petition for Writ of Certiorari.
i 18
11
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 Circulated 10/30/2015 02:48 PM

Taylor, 933 A.2d 1035, 1038 (Pa.Super. 2007) citing Commonwealth v. Murray, 562 Pa. 1, 4,

753 A.2d 201, 203 (2000).

The Defendant's second collateral petition clearly rested on the United States Supreme

Court opinion of Alleyne v. United States supra which was decided on June 17, 2013. Because

Defendant Dale was asserting constitutional rights recognized by the Supreme Court of the

United States in its June 17, 2013, Alleyne supra decision, inter alia, he was required by the Post

Conviction Collateral Relief Act to file of-record any such claims on or before August 16, 2013.

42 Pa.C.S. § 9545(b)(l )(2). His subsequent petition was lodged some ten (10) months thereafter.

See Defendant's Subsequent Petition.

Defendant Dale's attempts to bring the subsequent PCRA pleading within the purview of

any recognized exception to the Post Conviction Relief Act's one (l) year from the date

sentencing judgment became final lodging mandate simply failed. Although via the collateral

petition at bar the Defendant was unquestionably asserting a constitutional claim driven by the

Alleyne v United States supra United States Supreme Court decision, he contended to avoid the

fatal flaw of this court not having necessary jurisdiction those constitutional protections are

" ... facts upon which the claim is predicated were unknown to him and could not have been

ascertained by the exercise of due diligence, ... whereby satisfying the requirements of 42

Pa.C.S .. § 9545(b)(2) [sic]:'' See Defendant's Subsequent Petition, p. 4. See also 42 Pa.C.S.

§ 9545(b)(l)(ii). The Defendant in an apparent concession his subsequent collateral petition was

untimely, misconstrued his constitutional right assertion as a factually driven after discovered

evidence challenge ignoring the Post Conviction Relief Act's unambiguous requisite, inter alia,

that the assertion of a constitutional right recognized by the Supreme Court of the United States

must be lodged within sixty (60) days of the date the claim could have been presented. 42

19
 Circulated 10/30/2015 02:48 PM

Pa.C.S. § 9545(b)(l)(ii)(iii)(2). See Defendant's Subsequent Petition, pp. 3-4. Moreover, the

Defendant via his subsequent petition had not adequately averred let alone established bis

necessary exercise of due diligence, assuming his claim of constitutional rights could in some

manner be seen as an after discovered evidence factual contention asserting constitutional

protections. 42 Pa.C.S. § 9545(b)(l)(ii). See Commonwealth v. Johnson supra 945 A.2d at 188

and Commonwealth v. Davis supra 916 A.2d at 1208-09.

Assuming this error assignment is not found for purposes of the instant appeal to have

been waived and in the event the facially late filing of the subsequent petition did not deprive

this court of the jurisdiction necessary to adjudicating its collateral claim, Defendant Dale's

Alleyne driven attack on his sentence is misplaced and without merit.

Unlike the defendant in Alleyne being subject to a mandatory minimum sentence

resulting from the factual circumstance of his brandishing a firearm, Alleyne v. United States

supra 133 S.Ct. at 2155-56, Defendant Dale's mandatory minimum sentence was solely

grounded in his criminal recidivism. 42 Pa.C.S. § 9714(a)(l) ("Any person who is convicted in

any court of this Commonwealth of a crime of violence shall, if at the time of the commission of

the current offense the person had previously been convicted of a crime of violence, be sentenced

to a minimum sentence of at least ten years total confinement, .... ") See also Commonwealth's

Sentencing Notice. N.T. 9/28/10, pp. 3-4, 13-14, 17-18.

In Alleyne, the Supreme Court of the United States acknowledged that it had past

recognized a recidivism-prior conviction narrow exception to the constitutional requirement that

the ultimate fact finder determine beyond a reasonable doubt any "element" of the crime that on

conviction increases the sentencing penalty. Alleyne v. United States supra 133 S.Ct. at 1260,

Fn. 1 citing Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219 (1998).

20
 Circulated 10/30/2015 02:48 PM

Relatedly, the Supreme Court in Alleyne exp.licitly did not revisit this recidivism exception to the

Sixth Amendment constitutional right of a jury finding beyond a reasonable doubt any "element"

of the crime that on conviction attaches a mandatory minimum sentence. Id.

As it related to Defendant Dale's contention his prior first degree felony Robbery26

conviction triggering his mandatory minimum sentence at bar should have been submitted to the

jury for their collective determination whether such was proven beyond a reasonable doubt,27 the

United States Supreme Court in rejecting a similar constitutional attack opined as follows:

... [T]he sentencing factor at issue here-recidivism-is a traditional,
if not the most traditional, basis for a sentencing court's increasing
an offender's sentence. . .. Consistent with this tradition, the Court
said long ago that a State need not allege a defendant's prior
conviction in the . . . information that alleges the elements of an
underlying crime, even though the conviction was 'necessary to
bring the case within the statute.' Graham v. West Virginia, 224
U.S. 616, 624, 32 S.Ct. 58J, 585-86 (1912). That conclusion
followed, the Court said, from 'the distinct nature of the issue,' and
the fact that recidivism 'does not relate. to the commission of the
offense, but goes to the punishment only, and therefore ... may be
subsequently decided.' Id., at 629, 32 S.Ct. at 588 (emphasis
added). The Court has not deviated from this view, See Oyler v.
Boles, 368 U.S. 448, 452, 82 S.Ct. 501, 503-504 (1962).

Almendarez-Torres v. United States supra 523 U.S. at 243-44, 118 S.Ct. at 1230-31.

The question before us is whether this latter provision defines a
separate crime or .simply authorizes an enhanced penalty. . .. [I]f
the provision simply authorizes an enhanced sentence when an
offender also has an earlier conviction, then . . . the fact of an
earlier conviction is not an element of the present crime.

26
18 Pa.C.S. § 370 l.
n . .
Although not required by the language of the Sentences for Second and Subsequent Offenses statute Defendant
Dale's previous first degree felony Robbery conviction was in effect established beyond a reasonable doubt via the
stipulation of. counsel regarding this past conviction as well as unsolicitedly acknowledged of-record by the
Defendant. 42 Pa.C.S. § 9714(d). N.T. 9/28/10, pp. 13-14, 17-18. See also Commonwealth v. Dale, No. 5936-96-
Delaware County.
21
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We conclude that the subsection is a penalty provision, which
simply authorizes the court to increase the sentence for a recidivist.
It does not define a separate crime.

ld. 523 U.S. at 226, 118 S.Ct. at 1222.

The Superior Court has repeatedly found that Alleyne constitutionally invalidates those

present Pennsylvania mandatory minimum sentencing statutes triggered by the prosecution's

proof of certain facts (E.g. Visible Possession of Firearm during the Commission of certain

Violent Crimes, 42 Pa.C.S. § 9712; Possession with Intent to Deliver specified Quantities of

Controlled Substances, 18 Pa.C.S. § 7508; Possession of a Firearm while engaged in Drug Sales

42 Pa.C.S. § 9712. l; and/or Perpetrating listed crimes of violence at or about a public transit site,

42 Pa.C.S. § 9713). See generally Commonwealth v. Valentine, 101 A.3d 801 (Pa.Super. 2014)

(Invalidating 42 Pa.C.S. §§ 9712 and 9713); Commonwealth v. Mosley, 2015 WL 1774216

(Pa.Super. 2015) (Invalidating 18 Pa.C.S. § 7508); Commonwealth v. Munday, 78 A.3d 661

(Pa.Super. 2013) (Invalidating 42 Pa.C.S. § 9712.1).

However, the Pennsylvania Superior Court bas further reviewed the applicability of

Alleyne in relation to a defendant's past criminal history in Commonwealth v. Watley and

recognized relevant to current considerations that "[t]he Alleyne decision, therefore, renders

those Pennsylvania mandatory minimum sentencing statutes that do not pertain to prior

convictions constitutionally in.firm insofar as they permit a judge to automatically increase a

defendant's sentence based on a preponderance of the evidence standard." Commonwealth v

Watley, 81 A.3d 108, 117 (Pa.Super. 2013) (en bane) (Emphasis added). See also

Commonwealth v. Lane, 81 A.3d 974, 976, Fn. 5 (Pa.Super. 2013), appeal denied, 92 A.3d 811

22
 Circulated 10/30/2015 02:48 PM

(Pa. 2014) ("No Pennsylvania case has applied Alleyne to sentences enhanced solely by prior

· ·
convictions. ")28

Assuming arguendo it enjoyed necessary jurisdiction and this appellate complaint has not
,,
been waived being first raised on appeal, this court concluded that Defendant Dale's request that

his recidivism driven mandatory minimum sentence be set aside as violative of his Sixth

Amendment rights per the United Stated Supreme Court teachings in Alleyne was without

support. Alleyne v. United States supra 133 S.Ct. at 2160, Fn. 1. See also Almendarez-Torres v.

United States supra 523 U.S. at 226, 243-44, 118 S.Ct. at 1222, 1230-31; Commonwealth v.

Watley supra 81 A.3d at 117; and Commonwealth v, Lane supra 81 A.3d at 976, Fn. 5. In light

of the foregoing, this error assignment, if not seen as waived, is without support and rneritless.

Ill. Was PC.RA counsel ineffective in Jailing to comply with the standards set out in Finley?

JV. Was PC.RA counsel ineffective in failing to investigate and develop appellant's claims
raised in his PCRA petition?

See Statement of Matters Complained, Nos. 4 and 5.

Defendant Dale maintains that his PCRA counsel was professionally incompetent in not

complying with the standards established for such representation by Finley and further that his

collateral lawyer failed to address all those claims the Defendant had averred in his original

collateral petition. See Statement of Matters Complained, No. 4 and 5. See also Petitioner's

Response lo "No Merit Letter." As these two (2) appellate complaints pertain to the alleged

28
This court is aware that the Pennsylvania Supreme Court most recently in its decision of Commonwealth v
Hopkins held the Drug Free School Zones' mandatory minimum sentencing provisions, 18 Pa C.S. § 6317,
constitutionally infirm under Alleyne. Commonwealth v. Hopkins, 98 MAP 2013, Opinion. While the Supreme
Court's reasoning in combination with those other fact driven mandatory sentencing statutes employing a similar
statutory scheme and language render these other mandated sentences for the same reasons unconstitutional (E.g. 42
Pa.C.S. § 9712 - Sentences for Offenses Committed with Firearms), it is the view of this court that there are no
saJient legal principles set forth via Hopkins that call into question the current viability of the Superior Court's past
decisions recognizing that Alleyne yet acknowledges a recidivism-prior conviction narrow exception to the
constitutional requirement that the ultimate fact finder determine beyond a reasonable doubt any other type
"element" of the crime that on conviction increases the sentencing penalty. Commonwealth v. Hopkins supra.
23

I
 Circulated 10/30/2015 02:48 PM

ineffectiveness of Defendant Dale's PCRA counsel and both involve his PCRA attorney's review

of the Defendant's record at bar they will be addressed jointly. See Statement of Matters

Complained, No. 4 and 5.

Foremost, an ineffectiveness of PCRA counsel error assignment is waived for appellate

review unless it is raised in a defendant's response to the court's dismissal notice.

Commonwealth v. Henkel supra 90 A.3d at 20 and Commonwealth v Ford supra 44 A.3d at

1198 ("[\V]hen counsel files a Turner/Finleyno-merit letter to the PCRA court, a petitioner must

allege any claims of ineffectiveness of PCRA counsel in a response to the court's notice of intent

to dismiss.") citing Commonwealth v. Pitts supra 603 Pa. at 9, Fn. 4, 981 A.2d at 880, Fn. 4.

Defendant Dale properly raised the alleged incompetence of his collateraJ lawyer for purposes of

the pending appeal having advanced such a claim in his combined response to this court's

dismissal notices.29 See Petitioner's Combined Response. See also Commonwealth v. Henkel

supra 90 A.3d at 20 and Commonwealth v. Ford supra 44 A.3d at 1198 citing Commonwealth v.

· Pitts supra 603 Pa. at 9, Fn. 4, 981 A.2d at 880, Fn. 4.

An examination of a PCRA. attorney's supposed professional incompetence is conducted

under the general ineffectiveness of counsel standard. Commonwealth v. Rykard supra 55 A.3d

at 1189 citing Commonwealth v. Chmiel, 612 Pa. 333, 361-62, 30 A.3d 1111, 1127-28 (2011)

citing Commonwealth v. Pierce supra 515 Pa. at 158, 527 A.2d at 975-76.

The law presumes counsel was not incompetent, and a defendant bears the burden to

prove otherwise. Commonwealth v. Uderra, 550 Pa. 389, 400, 706 A.2d 334, 339 (1998) and

29
In Defendant Dale's Combined Response to this court's dismissal notices, be noted that he had previously
asserted his collateral counsel's ineffectiveness in the Defendant's Response to Counsel's "No Merit Letter." See
Petitioner's Response to Dismissal Notice, p. 2. Through the incorporation of this document the Defendant
adequately raised his collateral counsel's professional incompetence as required in Commonwealth v. Henkel.
Commonwealth v. Henkel supra 90 A.3d at 20. See also Commonwealth v. Ford supra 44 A.3d at 1198 citing
Commonwealth v. Pitts supra 603 Pa. at 9, Fn. 4, 981 A.2d at 880, Fn. 4.
24
 Circulated 10/30/2015 02:48 PM

Commonwealth v, Burkholder, 719 A.2d 346, 349 (Pa.Super. 1998). To prevail on a claim of

ineffective assistance of counsel, a defendant must demonstrate as follows: 1) The claim(s) are of

arguable merit; 2) Counsel had no reasonable basis for his or her action(s) and/or omission(s) in

question; and 3) Counsel's action(s) and/or inaction(s) prejudiced the defendant in that there was

a reasonable possibility that but for the act or omission challenge, the outcome of the

proceedings would have been different. Commonwealth v. Pierce, 515 Pa. 153, 158, 527 A.2d

973, 975 (1987) citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064

(1984). See also Commonwealth v. Allen, 557 Pa. 135, 144, 732 A.2d 582, 587 (1999);

Commonwealth v. Fulton, 547 Pa. 282, 291, 830 A.2d 567, 572 (2009) citing Commonwealth v.

Pierce, 567 Pa. 186, 202, 786 A.2d 203, 213 (2001); Commonwealth v. Kimball, 555 Pa. 229,

312, 724 A.2d 326, 333 (1999); and Commonwealth v. Neal, 421 Pa.Super. 478, f 82, 618 A.2d

4 3 8, 440 ( 1992). A defendant bears the burden of proving all three (3) prongs of ~he ineffective
I
standard and failure to establish even just one (1) of these requisites warrants dismissal of the

claim without further consideration of the other two (2) additional neJssary proofs.

Commonwealth v. Robinson, 583 Pa. 358, 369, 877 A.2d 433, 439 (2005).
.
I
'
I
I
The Strickland benchmark encompasses all constitutionally cognizable
I
claims of

counsel's incompetence. Commonwealth v. Pierce supra 515 Pa. at 158, 527 A.2? at 975 citing

Strickland v. Washington supra 466 U.S. at 687, 104 S.Ct. at 2064. Under ~e Strickland

standard, an allegation of ineffectiveness cannot be proven without a finding of prejudice that

except for the challenged act(s) or omission(s), the proceeding's outcome would have been

different. Commonwealth v. March, 528 Pa. 412, 414, 598 A.2d 961, 962 (1991) and

Commonwealth v. Buehl, 510 Pa. 363, 378, 508 A.2d 1166, 1174 (1986). Moreover, a

defendant's lawyer cannot be deemed incompetent for failing to raise and/or pursue meritless

25
 Circulated 10/30/2015 02:48 PM

claims. Commonwealth v. Sneed, 616 Pa. 1, 33, 45 A.3d 1096, 1115 (2012) and Commonwealth

v. Hutchinson, 521 Pa. 482, 488, 556 A.2d 370, 372 (1989).

"A PCRA petitioner must exhibit a concerted effort to develop his ineffectiveness claim

and may not rely on boilerplate allegations of ineffectiveness." Commonwealth v. Natividad,

595 Pa. 188, 209, 938 A.2d 310, 322-23 (2007) citing Commonwealth v. Spotz, 587 Pa. 1, 99,

896 A.2d 1191, 1250 (2006) (Finding the ineffectiveness claim insufficient when the appellant

" . . . failed to set forth his claim pursuant to the three-prong Pierce test for establishing an

ineffective assistance of counsel claim."). See also Commonwealth v. Perry, 959 A.2d 932, 936

(Pa.Super. 2012) quoting Commonwealth v. Natividad supra 595 Pa. at 209, 938 A.2d at 322-23.

Commonwealth v. Hall supra 582 Pa. at 535, 872 A.2d at 1182 and Commonwealth v.

Washington supra 583 Pa. at 573 74, 880 A.2d at 540-41. " ... (A)n undeveloped argument,

which fails to meaningfully discuss and apply the standard governing the review of

ineffectiveness claims, simply does not satisfy Appellant's burden of establishing that he is

entitled to any relief." Commonwealth v. Bracey, 568 Pa. 264, 273, Fn. 4, 795 A.2d 935, 940,

Fn. 4 (2001). Furthermore, bald, undeveloped averments fail to satisfy a defendant's burden of

establishing entitlement to PCRA relief when such allegations are boilerplate, constitutional

claims. Commonwealth v. Hall supra 582 Pa. at 535, 872 A.2d at 1182 and Commonwealth v.

Washington supra 583 Pa. at 573-74, 880 A.2d at 540-41.

Section 9543 of the Post Conviction Relief Act, inter alia, provides to be eligible for

relief a defendant must establish by a preponderance of the evidence that the conviction(s)

resulted from one (1) or more of the Act's specifically delineated errors and/or defects and that

such have not been previously litigated. See 42 Pa.C.S. § 9543(a)(l)(2)(3). A defendant

asserting ineffective assistance of counsel must relatedly show that this ineffectiveness " ... so

26
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undermined the truth-deterrruning process that no reliable adjudication of guilt or innocence

could have taken place." See 42 Pa.C.S. § 9543(a)(2)(ii).

The Defendant's two (2) error assignments maintain that his collateral counsel was

ineffective. and it was his burden to demonstrate that his collateral counsel was professionally

incompetent. Commonwealth v. Uderra supra 550 Pa. at 400, 706 A.2d at 339 and

Commonwealth v Burkholder supra 719 A.2d at 349. Defendant Dale was unable to satisfy the

Strickland benchmark requiring that he demonstrate: 1) TI1e claim(s) are of arguable merit; 2)

Counsel had no reasoned basis for his or her action(s) and/or omission(s) in question; and 3)

Counsel's action(s) and/or inaction(s) prejudiced the defendant in that there was a reasonable

possibility that but for the act(s) or om.ission(s) challenged, the outcome of the proceedings

would have been different. Commonwealth v. Pierce supra 515 Pa. at 158, 527 A.2d at 975

citing Strickland v. Washington supra 466 U.S. at 687, 104 S.Ct. at 2064.

In .first attacking his appointed counsel, Defendant Dale maintains Attorney DiBenedetto

Forrest did not comply in some otherwise unspecified manner with the dictates of

Commonwealth v Finley supra, Commonwealth v, Turner supra and Commonwealth v, Friend

supra. See Statement of Matters Complained, No. 4. A review of the salient case record,

including collateral counsel's "No Merit Letter" reveals otherwise. See "No Merit Letter."

Mr. DiBenedetto Forrest by his "No Merit Letter" fully detailed the scope of his

collateral examination. See "No Merit Letter," pp. 1-2, 10. From Attorney DiBenedetto

Forrest's review of the Defendant's initial petition and subsequent communications with him, via

the "No Merit Letter," appointed counsel listed with particularity those PCRA issues Defendant

Dale wanted examined. See "No Merit Letter," pp. 2-4, 9, 10. Mr. Di.Benedetto Forrest then

individually explained with references to notes of testimony and legal citations why these

27
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collateral claims were meritless. See "No Merit Letter," pp. 4-9. Per that which his "No Merit

Letter" details, the comprehensive, advocate's review Mr. DiBenedetto Forrest undertook and

completed on the Defendant's behalf offers no support for this error assignment's complaint that

appointed counsel was ineffective. To the contrary, Attorney DiBenedetto Forrest in the lodging

of his "No Merit Letter" followed the applicable requisites of Commonwealth v. Finley supra,

Commonwealth v. Turner supra and Commonwealth v. Friend supra.

Defendant Dale contends via his extensive response that his PCRA lawyer failed to

address numerous allegations of his prior attorneys' purported professional incompetence. See

Petitioner's Response to "No Merit Letter." A review of the Defendant's response, his original

PCRA petition, and appointed counsel's "No Merit Letter" show otherwise. The only issues this

court can discern that Defendant Dale raised and which was not directly detailed per the ''No

Merit Letter" is regarding pre-trial counsel's (Attorney Modesti) supposed failure to adequately

meet with the Defendant. See Defendant's Petition; "No Merit Letter;" and Petitioner's

Response to "No Merit Letter." Any challenge to the pre-trial stewardship of Attorney Modesti,

including an alleged failure to sufficiently meet with the Defendant, on the instant record is

meritless.

· As discussed in more detail infra, Attorney Modesti's stewardship of Defendant Dale's

interests at bar was modestly limited to an approximate month during which this case was at a

pre-trial posture between an initial pre-trial conference and first trial listing. Moreover, and

contrary to the Defendant's assertion that he failed to communicate with him, inter alia, Attorney

Modesti lodged of record a Notice of Alibi Defense listing Cvyonne Jenkins as such a defense

witness. See Notice of Alibi Defense, dated April 5, 2010. It defies common sense that Attorney

Modesti could file an alibi notice with a specifically identified individual who was subsequently

28
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called as a witness and so testified at trial, absent communications with Defendant Dale. See

Notice of Alibi Defense, dated April 5, 2010. See also N.T. 7/14/10, pp. 10-29.

Defendant Dale has failed to adequately demonstrate that he was indeed prejudiced by

the failure to address this issue of his pre-trial lawyer supposedly not communicating with him as

it was his burden to do so in order to establish his collateral counsel's alleged ineffectiveness for

not addressing and/or otherwise pursuing such a challenge. Commonwealth v. Pierce supra 515

Pa. at 158, 527 A.2d at 975 citing Strickland v. Washington fUpra 466 U.S. at 687, 104 S.Ct. at

2064. See also Commonwealth v. Uderra supra 550 Pa. at 400, 706 A.2d at 339 and

Commonwealth v. Burkholder supra 719 A.2d at 349.

As the Defendant failed to demonstrate that he was prejudiced by his pretrial attorney's

purported failure to meet with him prior to trial, his collateral counsel cannot be deemed

professionally incompetent for failing to address such an issue. Commonwealth v. Sneed supra

616 Pa. at 33, 45 A.3d at 1115 and Commonwealth v. Hutchinson supra 521 Pa. at 488, 556 A.2d

at 372.

Defendant Dale's second attack on collateral counsel's stewardship via his related

contention that Attorney DiBenedetto Forrest 11 ... fail[ed) to investigate and develop Appellant's

claims raised in his PCRA petition ... " likewise is just without adequate of record support. See

Statement of Matters Complained, No. 5.

Mr. Difsenedetto Forrest's examination of the salient record was comprehensive. All

notes of testimony were read. The court's file was reviewed. The files of the trial and direct

appeal lawyers were fully inspected which included all discoverable materials as well as each

attorney's litigation preparation. There were related communications with both trial counsel and

the appellate lawyer. There were also communications with the Defendant and requests for

29
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relevant information which if provided, was reviewed and considered. Armed with this wealth

of material and documentation, applicable legal research was conducted. See "No Merit Letter,"

pp. 1-2. Eight (8) collateral claims were specifically identified as those ineffective challenges

Defendant Dale wanted pursued. See "No Merit Letter," pp. 2-4. Beyond examining the case

record in the context of those issues Defendant Dale wanted reviewed, appointed counsel

additionally engaged in the supplemental record examination per that below:

. . . l have conducted an additional, independent review of the
record regarding any potential, viable issues under the PCRA, not
previous discussed, including possible claims against appellate
counsel. This review encompassed all possible claims of a State
[sic] and/or Federal [sic] Constitutional [sic] nature. Such legal
and constitutional claims may not have been raised by the
Defendant, but such a review is typically warranted. With regard
to these issues and other potential violations of the law as well as
that under the Constitutions of Pennsylvania and/or the United
States, my investigation reveals no facts sufficient to prove a
violation of any right of the Defendant.

See "No Merit Letter," p. 10.

Resulting from this all-inclusive review, Attorney DiBenedetto Forrest lodged his ten

(10) page, single spaced, "No Merit Letter" replete with legal authorities, testimonial notes,

citations, and numerous footnotes. See "No Merit Letter."

The comprehensive, advocate's review Mr. DiBenedetto Forrest undertook and

completed on the Defendant's behalf belies this error assignment's complaint that appointed

counsel failed to investigate those collateral claims raised in his original PCRA petition as

subsequently discussed further between Defendant Dale and appointed lawyer. See "No Merit

Letter," pp. 1-4.

Despite the Defendant's assertions, Mr. DiBenedetto Forrest acted competently through

his lodging of this "No Merit Letter." See "No Merit Letter." As Defendant Dale's appointed

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PCRA counsel, Attorney DiBenedetto Forrest was free to reach the conclusions he believed in

his best professional judgment warranted regarding the Defendant's PCRA petition and any other

possible collateral claims. See Commonwealth v. Finley, 379 Pa.Super. 390, 397, 550 A.2d 213,

217 (Pa.Super. 1988); Commonwealth v. Chmiel supra 612 Pa. at 468, 30 A.3d at 1190-91; and

Commonwealth v. Meadows, 567 Pa. 344, 365, 787 A.2d 312, 324 (2001). Defendant Dale's

understandable disappointment that his PCRA lawyer found on his behalf no viable PCRA

grounds to pursue is not a basis on which to support a finding that 1'1r. DiBenedetto Forrest

provided incompetent, collateral stewardship.

Moreover, a defendant's lawyer cannot be found professionally incompetent for failing to

raise and/or pursue baseless claims. Commonwealth v. Sneed supra 616 Pa. at 33, 45 A.3d at

1115 and Commonwealth v. Hutchinson supra 521 Pa. at 488, 556 A.2d at 372. This standard is

as well applicable concerning assertions of a PCRA counsel's supposed ineffectiveness and their

review of claims against a prior lawyer's claimed ineffectiveness. "Post-trial counsel will not be

deemed ineffective for failing to raise and preserve meritless challenges to the effectiveness of

trial counsel." Commonwealth v. Rivera, 816 A.2d 282, 292 (Pa.Super. 2003) quoting

Commonwealth v. Thuy, 424 Pa.Super. 482, 498, 623 A.2d 327, 335 (1993).

V. Was pretrial counsel (Modesti) ineffective in/ailing to meet and consult with appellant
prior to trial, inf ailing to exp lgre potential trial defenses, in failingto petition the trial court
for funds to hire an investigator, in failing to prepareand file any pretrial motions, and in
failing to contact and interview known witnesses whose testimony would have been
exculpatory in nature?

See Statement of Matters Complained, No. 6.

Through this appellate complaint, the Defendant maintains that his pre-trial lawyer,

Arthur J. Modesti, Esquire, afforded him less than professionally mandated representation by

failing to complete the following: Meeting with the Defendant prior to trial; Exploring possible

31
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trial defenses; Hiring an investigator; Filing pretrial motions; and Contacting witnesses. See

Statement of Matters Complained, No. 6. Given his very abbreviated stewardship of Defendant

Dale's interests at bar together with such representation being limited to a time span

encompassing only the case's pre-trial conference through the first trial listing at which Scott L.

Kramer, Esquire entered his appearance, any challenge that Attorney Modesti was in some

manner ineffective warranting collateral remedy is meritless'"

Attorney Modesti began his representation of the Defendant on April 5, 2010, and was

soon after replaced on May 6, 2010, by Attorney Kramer. See Entries of Appearance. During

th.is single month of Attorney Modesti's tenure as Defendant Dale's lawyer, no material

instances of any consequence took place. Recognizing the minimal nature of the time period

Attorney Modesti was the Defendant's of record attorney, it is not surprising that Defendant Dale

failed to sufficiently demonstrate that any of his pre-trial lawyer's alleged actions and/or

omissions underpinning this appellate complaint enjoy even arguable merit. Moreover, the

Defendant has certainly not adequately established the challenged actions and/or inactions of

Attorney Modesti occasioned him to suffer the requisite degree of prejudice necessary to

collateral relief in that but for these purported oversights, the outcome of his trial which took

place two (2) months subsequent to Mr. Modesti stepping aside and under the stewardship of a

wholly independent defense counsel would have been otherwise. Commonwealth v. Uderra

supra 550 Pa. at 400, 706 A.2d at 339; Commonwealth v. Pierce supra 515 Pa. at 158, 527 A.2d

30
As maintained by the Defendant in this appellate complaint, the only possible avenue by which Attorney Modesti
could even remotely be found ineffective is bis failure to lodge and litigate an exclusionary pleading. See Statement
of Matters Complained, No. 5. However, the several issues the Defendant believes should have been addressed via
a suppression motion by either Attorney Modesti or Attorney Kramer as discussed infra are each without merit.
Recognizing, as Attorney Modesti may not be deemed incompetent for not pursuing meritless claims, his failing to
lodge an exclusionary motion is not a viable ground on which a collateral remedy may rest. Commonwealth v.
Sneed supra 616 Pa. at 33, 45 A.3d at 1115 and Commonwealth v. Hutchinson supra 521 Pa. at 488, 556 A.2d at
372.
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at 975 citing Strickland v. Washington supra 466 U.S. at 687, 104 S.Ct. at 2064; and

Commonwealth v. Robinson supra 583 Pa. at 369; 877 A.2d at 439.

Defendant Dale first maintains that Attorney Modesti failed to meet with him prior to his

trial. See Statement of Matters Complained: No. 6. The Defendant has not offered any support

as to how this alleged failure prejudicially impacted his matter at bar. See Statement of Matters

Complained, Nos. 4 and 5. Additionally, this claimed lack of communication between counsel

and Defendant Dale is undercut by Attorney Modesti having lodged of record an alibi notice

detailing the very same witness who so subsequently at trial testified. See Notice of Alibi

Defense, dated April 5, 2010 and N.T. 7/14/10, pp. 10-29.

Defendant Dale further contends that Attorney Modesti was professionally incompetent

by failing to petition the court for funds to hire an investigator." Defendant Dale previously

averred in his Response to Counsel's "No Merit Letter» that "[h]ad counsel petitioned the court

for funds to hire an investigator, Shaykia Cherry may have been located and subpoenaed for

court." See Petitioner's Response to "No Merit Letter," p. 12. (Emphasis added.)

Not only is Defendant Dale's averrnent meritless as the Defendant failed to show how the

hiring of a private investigator, who may or may not have found the purportedly helpful Shaykia

Cherry,32 who may or may not have been able to testify, and whose testimony may or may not

31
ln the Defendant's original PCRA petition, he averred that both Attorney Modesti and Attorney Kramer were
ineffective for failing to petition the court for funds to hire private investigator. See Defendant's Petition. pp. 4, IS.
See also Defendant's Response to "No Merit Letter," pp. 8-9.

T11e Office of the Delaware County Public Defender employs paralegals and investigators either of which was
accessible to Attorney Modesti. Hence, no investigative authorization funding petition would have been lodged with
the court by pre-trial counsel.
32
The Defendant maintains that an individual named Shaykia Cherry was 'in possession of the victim's cellular
phone and made contact with the victim concerning his phone. However, the Defendant has not provided any basis
for his assertions other than references to Detective Houghton's affidavit of probable cause, "However, on p. 6 of
the Incident Investigation Report, Detective Houghton notes that the victim notified him that he had been contacted
by a Shaykia Cherry .... " See Defendant's Petition, pp. 12, 17. A review of the relevant criminal complaint reveals
33
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have been beneficial to the Defendant, even if such testimony was found credible by the jury,

would have in fact altered the trial's outcome, especially at such an early stage of the

proceedings when Attorney Modesti was still of record defense counsel. Commonwealth v.

Pierce supra 515 Pa. at 158, 527 A.2d at 975 citing Strickland v. Washington supra 466 U.S. at

687, 104 S.Ct. at 2064. The Defendant's sheerly speculative argument regarding the hiring of a

private investigator not only fails to possess merit, but falls short of demonstrating that be was

indeed prejudiced by the absence of such an investigation being pursued.

Defendant Dale also avers by way of this error assignment that his pretrial counsel was

ineffective by failing to " ... prepare and file any pretrial motions." See Statement of Matters

Complained, No. 6. A review oftbe record at bar reveals he is mistaken.

On the same date Attorney Modesti entered his appearance (April 5; 2010), be

simultaneously lodged a Notice of Alibi Defense and an Omnibus Pretrial Motion. See Notice of

Alibi Defense, dated April 5, 2010. See also Omnibus Pretrial Motion. The notice listed a

Cvyonne Jenkins as an alibi witness for the Defendant. See Notice of Alibi Defense, dated April

5, 2010. The omnibus pretrial pleading included both a Motion for Discovery and a Motion to

Extend Time for Filing Omnibus Motion requesting additional time to file any omnibus claims

that would be deemed necessary after a review of any received discovery materials. See

Omnibus Pretrial Motion.

The Defendant is unable to demonstrate that this generalized claim has any arguable

merit and/or that he suffered the degree of prejudice requisite to collateral relief. Commonwealth

v Pierce supra 515 Pa. at 158, 527 A.2d at 975 citing Strickland v. Washington supra 466 U.S.

at 687, 104 S.Ct. at 2064.

that on page six (6) of the criminal complaint there is no mention of the purported Shaykia Cherry and/or this
individual contacting the victim. See Criminal Complaint and Probable Cause Affidavit, No. 1184-10.
34
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Defendant Dale also maintains that Attorney Modesti failed to contact and interview

supposedly known witnesses, who would have divulged exculpatory evidence. See Statement of

Matters Complained, No. 6. The Defendant again generally avers these witnesses possessed

evidence beneficial to the defense without providing any support. Even had Attorney Modesti

contacted these witnesses, Defendant Dale failed to demonstrate how such supposed exculpatory

evidence stemming from these witnesses would have altered this case's outcome. Moreover, the

limited time period that Attorney Modesti represented the Defendant would have also in tum

restricted his ability to locate and contact potential trial witnesses.

Further, a review conducted by Defendant Dale's collateral counsel revealed even had

Attorney Modesti spoken to these supposed exculpatory witnesses they would not have

benefitted the Defendant's cause. See "No Merit Letter," p. 7. As collateral counsel's

comprehensive, advocate's review found:

. . . The undersigned submits that trial counsel strategically
determined that no exculpatory evidence would have been elicited,
and it was otherwise not in Defendant's best interest to call said
witnesses. . .. the use of such testimony, if elicited, wou1d not have
been helpful to the Defendant. Counsel clearly had a reasonable
basis for not utilizing said witnesses at trial, which rationale
concludes that counsel rendered effectiveassistance. ·

See "No Merit Letter," p. 7. (Emphasis added).

Based on a review of the record at bar, not only does this error assignment Jack arguable

merit, but Defendant Dale failed to adequately demonstrate how these alleged failures of his

pre-trial counsel of one (1) month at such an early stage of the proceeding would result in a

different trial outcome. Commonwealth v. March supra 528 Pa. at 414, 598 A.2d at 962 and

Commonwealth v. Buehl supra 510 Pa. at 378, 508 A.2d at 1174. See also Commonwealth v.

Natividadsupra 595 Pa. at 209, 938 A.2d at 322-23 citing Commonwealth v. Spatzsupra 587 Pa.

35
 Circulated 10/30/2015 02:48 PM

at 99, 896 A.2d at 1250; Commonwealth v. Hall supra 582 Pa. at 535, 872 A.2d at 1182; and

Commonwealth v. Washington supra 583 Pa. at 573-74, 880 A.2d at 540-41. The Defendant has

simply not established how his pretrial lawyer's supposed ineffectiveness "undermined the truth-

determining process that no reliable adjudication of guilt or innocence could have taken place."

42 Pa.C.S. § 9543(a)(2)(ii).

The Defendant's various challenges pertaining to Attorney Modesti's professional

incompetence lack the support necessary to demonstrate such ineffectiveness did in fact take

place and/or that he as a result suffered actionable prejudice. Commonwealth v, Pierce supra

515 Pa. at 158, 527 A.2d at 975 citing Strickland v. Washington supra 466 U.S. at 687, 104 S.Ct.

at 2064. Defendant Dale has foremost failed to indicate how Attorney Modesti's supposed errors

months prior to a trial at which he was represented by wholly independent and privately retained

counsel altered the outcome of the matter at bar. Id. This appellate complaint of the Defendant

is therefore meritless.

VL Waspretrial/trialcounsel Scott Kramer ineffectivein failing to prepareandfile any
pretrial motions on behalf of the Appellant, to include, and most importantly, a pretrial motion
to suppressevidence?

See Statement of Matters Complained, No. 7.

Defendant Dale via this appellate complaint most. generally maintains that his pretrial

lawyer, Attorney Modesti, and trial counsel, Attorney Kramer, were professionally incompetent

by failing to file pretrial pleadings. The only such lodging so noted with particularity is a motion

to suppress evidence. See Statement of Matters Compla~ed, No. 7. Although the Defendant has

not referenced in this error assignment any underlying justification that bis counsel would have

for pursuing a suppression motion, a review of his original collateral petition in conjunction with

the Defendant's Response to Counsel's "No Merit Letter" reveals that he previously averred for

36
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the filing of an exclusionary pleading numerous rationales. See Defendant's Petition, pp. 8-17.

See also Defendant's Response to "No Merit Letter," pp. 12-14.

Per his initial PCRA petition as well as bis response to collateral counsel's "No Merit

Letter," Defendant Dale maintained that both Attorney Modesti33 and Attorney Kramer should

have lodged an exclusionary filing seeking to bar from the prosecution's use at trial the

following: Description of the motor vehicle involved in the robbery; Victim's description of the

offenders; Clothing worn by the Defendant; Detective Houghton's investigation into the

Defendant's alibi; A supposed Incorrect date on Detective Hougbton's affidavit of probable

cause; and/or A Photograph array entered into evidence at trial. See Defendant's Petition, pp. 8-

17. Defendant's Response to "No Merit Letter," pp. 12-14.

Even upon a cursory review of the relevant case record, it is readily evident that the vast

· majority of those claims Defendant Dale complains about bis lawyers not advancing via a

suppression motion are just devoid of merit. The Defendant's suggested challenges to the

following are simply not the proper subjects of an exclusionary pleading, but rather are at most

potential trial issues: Alleged conflicting descriptions of the motor vehicle involved in the

robbery; Victim's description of the robbers and/or their clothing; Detective Houghton's

investigation of the alibi defense; and Purported incorrect date noted in the criminal complaint's

probable cause affidavit. Commonwealth v. Burnside, 425 Pa.Super. 425, 429, 625 A2d 678,

680 (1993) citing Commonwealth v. Tuck, 322 Pa.Super. 328, 3 32, 469 A.2d 644, 646 (1983)

and Commonwealth v. Millner, 585 Pa. 237, 259, 888 A.2d 680, 692 (2005). See also

33
As was addressed previous salient to error assignment No. 6, Attorney Modesti's representation of the
Defendant's interests at bar was most abbreviate and limited to a single month between the case's pre-trial
conference and its first trial listing at which Attorney Kramer then entered his appearance. See Entries of
Appearance. To the extent applicable, this prior discussion about Mr. Modesti's most modest stewardship is
incorporated by reference as if fully set forth.
37

I
I

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 Circulated 10/30/2015 02:48 PM

Defendant's Petition, pp. 8, 12-14 and Defendant's Response to "No Merit Letter," pp. 12-14.

From the litany of subjects Defendant Dale contends should have been litigated pre-trial per an

exclusionary pleading, only those of the photo array and the seizure of certain articles of cJothing

incident to his unrelated, arrest require further discussion. Commonwealth v. Sneed supra 616

Pa. at 33, 45 A.3d at 1115 and Commonwealth v, Hutchinson supra 521 Pa. at 488, 556 A.2d at

372.

Starting with the circumstances through which the Commonwealth came into possession

of the Defendant's clothing articles, these two (2) possible suppression challenges as further

detailed below do not advance a sufficient basis on which to ground Post Conviction Relief Act

remedy.

Although the barring of physical items from the prosecution's trial usage is a common

and proper form of relief to be sought via a suppression motion, the grounds Defendant Dale

proffered as the basis for the clothing articles' exclusion34 were not those of his constitutional

rights supposedly being contravened and thus beyond the purview of a suppression pleading's

relief. See Commonwealth v. Burnside supra 425 Pa.Super. at 429, 625 A.2d at 680 citing

Commonwealth v. Tuck supra 322 Pa.Super. at 332, 469 A.2d at 646 and Commonwealth v.

Millner supra 585 Pa. at 259, 888 A.2d at 692 ("The point of a motion to suppress physical

evidence is to eliminate certain tangible evidence from the Commonwealth's trial

armamentarium, on grounds that the manner of the government's acquisition of that evidence

involved a violation of the defendant's constitutional rights.") (Emphasis added).

34
Defendant Dale maintains that the shirt entered into evidence should have been suppressed as it was the article of
clothing he was wearing on the day of his arrest which took place a month before the robbery at issue and that no
information detailing the shirt tbe robbery assailant was wearing underneath the other clothing described by the
victim. See Defendant's Petition, p. 13. See also Petitioner's Response to "No Merit Letter," pp. 10-11.
I 38
1!
u
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 Circulated 10/30/2015 02:48 PM

The Defendant's claimed grounds for the exclusion of his clothing articles not being a

cognizable basis to suppress these items, this collateral attack lacks the merit requisite to Post

Conviction Relief Act remedy. See Commonwealth v. Dennis, 597 Pa. 159, 175-76, 950 A.2d

954-55 (2008) quoting Commonwealth v. McGill, 574 Pa. 574, 587, 832 A.2d 1014, 1022

(2003); Commonwealth v. Busanet, 618 Pa. 1, 19, 54 A.3d 35, 46 (2012); and Commonwealth v.

Stewart, 84 A.3d 701, 707 (Pa.Super. 2013) ("A claim has arguable merit where the factual

averments, if accurate, could establish cause for relief See Commonwealth v. Jones, 583 Pa.

130, 876 A.2d 3 80, 385 (2005) ('if a petitioner raises allegations, which, even if accepted as true,

do not establish the underlying claim ... , he or she will have failed to establish the arguable merit

prong related to the claim.') whether the 'facts rise to the level of arguable merit is a legal

determination.' Commonwealth v. Saranchak, 581 Pa. 490, 866 A.2d 292, 304 n. 14 (2005).")

Recognizing relatedly that a defendant's lawyer caIU16t be found professionally incompetent for

not pursuing frivolous litigation, neither Attorney Modesti nor Attorney Kramer not seeking the

clothing articles' exclusion is an instance of ineffective counsel. Commonwealth v. Sneed supra

616 Pa. at 33, 45 A.3d at 1115 and Commonwealth v. Hutchinson supra 521 Pa. at 488, 556 A.2d

at 372.

Beyond the meritless nature of the underlining grounds he advanced regarding th.is

collateral challenge to his lawyers not litigating the clothing items' exclusion, a review of the

instant record and that of Commonwealth v. Dale, No. 798-10 Delaware County, shows that the

Commonwealth lawfully came to possess these articles of clothing. See also Commonwealth's

Exhibits C-5 - Black Long Sleeve Shirt; C-6 - Black Cargo Pants; and C-7 - Stipulation. N.T.

7/14/10, pp. 4-7.

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· Unrelated to the robbery at bar, the use of
such testimony, if elicited, would not have been help/ ul to the
Defendant. Counsel clearly had a reasonable basis for not
utilizing said witnesses at trial, which rationale concludes that
71

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 Circulated 10/30/2015 02:48 PM

counsel rendered EFFECTIVE assistance. Counsel further
conducted appropriate pre-trial investigation relative to the
substance of the purported testimony. For the foregoing reasons,
the claims related to inadequate investigation and failure to call
witnesses lack merit under the PCRA and accompanying case law.

I Footnote 4. Moreover, no witness affidavits containing the
I purported, beneficial testimony have been provided to the
undersigned, a necessary component of any such claim under the
I PCRA.

"No Merit Letter," pp. 5, 6, and 7, Fn. 4. (Emphasis added).

Defendant Dale's challenges encompassing this appellate complaint averring Attorney

Kramer's ineffectiveness fail for these reasons detailed above to satisfy all three (3) of the

requisite Strickland prongs and his trial counsel thus cannot be deemed ineffective so as to

warrant Post Conviction Relief Act remedy. Commonwealth v. Pierce supra 515 Pa. at 158, 527

A.2d at 975 citing Strickland v. Washington supra 466 U.S. at 687, 104 S.Ct. at 2064. Attorney

Kramer clearly questioned the Commonwealth's witnesses with the goal of undermining their

I credibility and was as well justified in his decision to refrain from objecting to the introduction

of the attire, including the long sleeve shirt (Commonwealth's Exhibit C-5). Also, the record

clearly establishes that defense counsel did protest the prosecution's eliciting purportedly

prejudicial testimony, but that he sensibly chose during the Commonwealth's closing not to once

more object to the already allowed testimony's referencing. Finally; despite the Defendant's

assertion otherwise, Attorney Kramer did call Ms. Jenkins as an alibi witness and his election to

present no such additional witnesses was reasonably based on pre-trial investigation and

interviews and grounded in advancing Defendant Dale's interests. These decisions by Attorney

Kramer were accordingly reasoned and justified therefore making the Defendant's present

appellate complaint meritless.

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I!
I

VIII. Did the trial court err in dismissingAppellant'sfirst PCRApetitio11without a hearing?

See Statement of Matters Complained, No. 3.

Per this error assignment on appeal, the Defendant maintains that the court erroneously

dismissed his original PCRA petition, absent an evidentiary hearing. See Statement of Matters

Complained, No. 3. This court to the contrary concluded that no reasoned purpose would be

served by any further proceedings as there were no genuine issues of material fact and Defendant

Dale thus was not entitled to a hearing prior to the court dismissing his initial collateral petition.
.1
See Dismissal Notice of Original Collateral Petition and Order dated July 29, 2014. See also
'l Order dated December 2, 2014. Moreover, this review of the Defendant's collateral petition and
I
I related error assignments on appeal demonstrates that the dismissal of his original collateral

petition, without a hearing, was not misguided.

"The right to an evidentiary hearing on a post-conviction petition is not absolute. A

PCRA court may decline to hold a hearing if the petition's claim is patently frivolous and
l
without a trace of support in either the record or from other evidence." Commonwealth v. Payne,
l
I 794 A.2d 902, 906 (Pa.Super. 2002) citing Commonwealth v. Jordan, 772 A.2d 1011, 1014

I (Pa.Super. 2001). "The control1ing factor in determining whether a petition may be dismissed

l without a hearing is the status of the substantive assertions in the petition." id. at 906 quoting
I
Commonwealth v, Weddington, 514 Pa. 46, 50, 522 A.2d 1050, 1052 (1987).
I Pennsylvania Rule of Criminal Procedure 907(1) in salient part states:

If the judge is satisfied from this review that there are no genuine

I issues concerning any material fact and that the defendant is not
entitled to post-conviction collateral relief, and no purpose would

I be served by any further proceedings, the judge shall give notice to
the parties of the intention to dismiss the petition and shall state in
the notice the reasons for the dismissal ....

Pa.R.Crim.P. Rule 907(1).
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"A reviewing court on appeal must examine each of the issues raised ... in light of the

record to determine whether the PCRA court erred in concluding that there were no genuine

issues of material fact and denying relief without an evidentiary hearing." Commonwealth v.

DuPont, 860 A.2d 525, 530 (Pa.Super. 2004) quoting Commonwealth v. Jordan, 772 A.2d 1011,

1014 (Pa.Super. 2001). See also Commonwealth v. Springer, 961 A.2d 1262, 1264 (Pa.Super.

2008).

On July 29, 2014, the court entered its two (2) notices of dismissal as to both Defendant

Dale's original and subsequent PCRA petitions.45 See Dismissal Notices and Orders, dated July

29, 2014. The dismissal notice relating to the Defendant's initial collateral petition was entered

after a review of appointed collateral counsel's "No Merit Letter" and the court's independent

examination of the salient case record. See Dismissal Notice of Original Collateral Petition and·

Order, dated July 29, 2014. See also Defendant's Petition. The court resultantly determined that

the Defendant's initial collateral petition lacked genuine issues of material fact. See Dismissal

Notice of Original Collateral Petition and Order, dated July 29, 2014.

Having concluded that Defendant Dale's initial PCRA petition lacked any genuine issues

of material fact, the court relatedly determined a hearing was unwarranted. See Commonwealth

v. DuPont supra 860 A.2d at 530 quoting Commonwealth v. Jordan supra 772 A.2d at 1014.

The Defendant's appellate complaints relating to the dismissal of his original collateral petition

and the averments pertaining to his pre-trial, trial, and collateral counsel's professional

incompetence as detailed above reveals that such errors were meritless.
45
This complaint on appeal by its plain terms and the statement of appellate complaints generally does not take issue
with the court having dismissed the Defendant's subsequent PCRA petition, absent a bearing. See Statement of
Matters Complained, No. 3 and Defendant's Subsequent Petition. Hence, this court will offer no discussion
regarding its decision to dismiss. without a hearing, Defendant Dale's second collateral pleading. See generally
Dismissal Notice of Subsequent Petition dated July 29, 2014. Pa.R.A.P. 1925(bX4)(vii) ("Issues not included in the
statement ... are waived." See also Commonwealth v, Mann supra 820 A.2d at 794, and Commonwealth v, Cannon
supra 954 A.2d at 1228. ·
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IX. Did the Commonwealth's attorney commit instances of misconduct by mis-stating [sic]the
evidence, and making highly prejudicial comments and inferences not supported by the
evidence at trial?

See Statement of Matters Complained, No. 9.

The Defendant has failed in bis final error assignment to detail with even modest

particularity those purported instances of prosecutorial misconduct this appellate complaint

largely references. There is simply no sufficiently descriptive allegation of what, when, and/or

how any purported actions of the Assistant District Attorney constituted improper prosecutorial

conduct, despite the bald averment that there were repeated and "highly prejudicial" "instances"

of the same. See Statement of Matters Complained, No. 9. It is only on a review of Defendant

Dale's initial PCRA filing as well as its allegations regarding the Commonwealth's closing

argument and his trial attorney not objecting to certain of the prosecution's summation that a

modicum of appreciable meaning can be imported to this error assignment. See Defendant's

Petition, pp. 25-27.

However, when this appellate complaint is viewed in the context of the original collateral

pleading it is seemingly nothing more than a generalized repetition of that advanced, in part, via

error assignment eight (8) fully discussed above. See Statement of Matters Complained, No. 8.

("Was trial counsel ... ineffective ... in failing to object to prejudicial remarks and mis-stating

[sic] ofthe evidence by the Commonwealth's attorney.") If not just a restatement of appellate

complaint No. eight (8) warranting no additional comment from the court, ·this complaint on

appeal (No. 9) is by its plain terms so broadly vague as to be meaningless and should thus be

deemed waived. Alternatively, this error assignment if in some manner is seen to be a discreet

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claim beyond such advanced by Defendant Dale prior,46 it is not an actionable basis on which

Post Conviction Relief Act remedy can be grounded.

Pennsylvania Rule of Appellate Procedure 1925 provides "[tjhe Statement [of appellate

complaints] shall concisely identify each ruling or error that the appellant intends to challenge

with sufficient detail to identify all pertinent issues for the judge." Pa.R.A.P. 1925(b)(4)(ii)

(Emphasis added.) See also Order dated December 23, 2014. As the Superior Court in

Commonwealth v. Mann previously recognized:

Pa.R.A.P. 1925 is intended to aid trial judges in identifying and
focusing upon those issues which the parties plan to raise on
appeal. Rule 1925 is thus a crucial component of the appellate
process. Id. 804 A.2d at 37. 'When a court has to guess what
issues an appellant is appealing, that is not enough for meaningful
review.' Commonwealth v. Dowling, 778 A.2d 683, 686
(Pa.Super. 2011). 'When an appellantfails adequately to identify
in a concise manner the issues sought to be pursued on appeal,
the trial court is impeded in its preparation of a Legal analysis
which is pertinent to those issues.' In re Estate of Daubert, 757
A.2d 962, 963 (Pa.Super. 2003). . .. Appellant's claim was not
specific enough to allow the trial court the opportunity to address
the claim that he is now raising on appeal .... Accordingly, we find
this issue to be waived.

Commonwealth v. Mann supra 820 A.2d at 794 (Emphasis added). See also Commonwealth v.
Cannon supra 954 A.2d at 1228.

Defendant Dale's most generalized assertion that the Commonwealth's attorney

committed misconduct in the form of unspecified "prejudicial comments and inferences" is

lacking any required detail. Resultantly, this error assignment should be seen for appellate

purposes as waived. Id.

Furthermore, to be eligible for relief under the Post Conviction Relief Act a defendant

must establish by a preponderance of the evidence that the challenged conviction(s) resulted

46
See Statement of Matters Complained, No. 8.
76

...
i
.,
II
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from one (1) or more of the Act's specifically delineated errors and/or defects and that such have

not been previously litigated and/or waived. 42 Pa.C.S. § 9543(a)(1)(2)(3). See also

Commonwealth v. Banks, 540 Pa. 143, 148-49, 656 A.2d 467, 469 (1995).

The Defendant's bald assertion that the Commonwealth's attorney committed

prosecutorial misconduct is not within the parameters of the PCRA and that generally detailed

per this error assignment is not cognizab]e for remedy under the Post Conviction Relief Act. 42

Pa.C.S. § 9543(a)(2). Commonwealth v. Lutz, 788 A.2d 993, 995, Fn. 7 (Pa.Super. 2001) ("A

prayer for relief, however, which does not fall within the remedies afforded by the PCRA will

not constitute a PCRA petition"). See also Commonwealth v. Deaner, 779 A.2d 578, 580

(Pa.Super. 2001) and Commonwealth v. Tanner, 410 Pa.Super. 398, 405, 600 A.2d 201, 205

(1991) ("The PCRA limits the types of claims that are cognizable. Thus, the petitioner must

'plead and prove by a preponderance of the evidence' that the conviction or sentence resulted

from one or more of eight specified circumstances. See 42 Pa.C.S. § 9543(a)(2)(i)-(viii)").

Foremost, this complaint on appeal should be seen as waived given its lack of even

modest specificity. Alternatively, the averments underpinning this error assignment are simply

not grounds on which the Post Conviction Relief Act allows the sought after collateral remedy.

Finally, assuming this appellate complaint is not found to have been waived. and/or alleges a

cognizable basis for relief under the Act, it is simply a generalized restatement of error

assignment No. eight (8) requiring no additional comment by this court beyond that already

discussed in its addressing and concluding that supposed failure of trial counsel to object to the

discernable instances of claimed prosecutorial misconduct is without merit.

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X. CONCLUSION

The Superior Court has held that appellate review of a PCRA's dismissal is conducted:

[I]n the light most favorable to the prevailing party at the PCRA
level. Commonwealth v. Burkett, 5 A.3d 1260, 1267 (Pa.Super.
2010). This review is limited to the findings of the PCRA court
and the evidence of record. Id. We will not disturb a PCRA
court's ruling if it is supported by evidence of record and is free of
legal error. Id This Court may affirm a PCRAcourt's decision on
any grounds if the record supports it. Id We grant great deference
to the factual findings of the PCRA court and will not disturb those
findings unless they have no support in the record. Commonwealth
v. Carter, 21 A.3d 680, 682 (Pa.Super. 2011). However, we afford
no such deference to its legal conclusions. Commonwealth v.
Paddy, 609 Pa. 272, 15 A.3d 431, 442 (2011); Commonwealth v.
Reaves, 592 Pa. 134, 923 A.2d 1119, 1124 (2007). Further, where
the petitioner raises questions of law, our standard of review is de
nova and our scope of review is plenary. Commonwealth v.
Colavita, 606 Pa. 1, 993 A.2d 874, 886 (2010).

Commonwealth v. Rykard supra 55 A,3d at 1183 quoting Commonwealth v. Ford supra 44 A.3d
at 1194.

As recounted above, this court did not err in its dismissal of Defendant Dale's original

and subsequent collateral petitions as there were no genuine issues concerning any material fact,

Defendant Dale was not entitled to such post conviction collateral relief, this court lacked

jurisdiction relevant to the second collateral petition (Subsequent Petition), and/or any such

claim(s) had been waived, and no reasoned purpose was served by further proceedings. This

assessment of the Defendant's collateral petition further reveals that his pre-trial, trial, and

collateral attorneys cannot be deemed professional ineffective in their stewardship of Defendant

Dale's interests. These findings of this court are amply supported by the instant case record, and

it committed no related legal error. Commonwealth v. Rykard supra 55 A.3d at 1183 quoting

Commonwealth v. Ford supra 44 A.3d at 1194.

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For all of these reasons, this court's dismissal, absent a hearing, of Defendant Dale's

II
original and subsequent collateral filings should be affirmed.
I'!

BY THE COURT:

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