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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
JOHN ASHBEY GASS, :
:
Appellant : No. 293 MDA 2015
Appeal from the PCRA Order January 20, 2015
in the Court of Common Pleas of Lackawanna County Criminal Division
at No(s): CP-35-CR-0001830-2010
BEFORE: BOWES, OTT, and FITZGERALD,* JJ.
MEMORANDUM BY FITZGERALD, J.: FILED FEBRUARY 12, 2016
Appellant, John Ashbey Gass, appeals pro se from the order of the
Lackawanna County Court of Common Pleas denying his first Post Conviction
Relief Act1 (“PCRA”) petition without a hearing. Appellant claims his prior
counsel was ineffective and his sentence is unconstitutional in light of
Alleyne v. United States, 133 S. Ct. 2151 (2013). We affirm.
This Court previously summarized the facts leading to Appellant’s
conviction.
On March 19, 2010, a confidential informant (“CI”)
appeared at the Scranton Police Department and told
police that he was acquainted with an individual he knew
as “Smoke,” from whom he could purchase heroin. In the
*
Former Justice specially assigned to the Superior Court.
1
42 Pa.C.S. §§ 9541-9546.
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presence of Officer Justin Butler, CI placed a call to
“Smoke” and the two agreed to meet at a convenience
store in Scranton so CI could purchase heroin. The police
provided CI with $100 in “buy money” for use in the
transaction and performed a thorough search of CI’s
person to ensure he possessed no contraband prior to the
controlled buy. CI also informed Officer Butler that
“Smoke” was a short black male who would be driving a
small silver pickup truck-type vehicle.
Officer Butler drove CI to the prearranged location and
CI exited Officer Butler’s vehicle to wait for “Smoke” to
arrive. Detective David Mitchell was also situated in a
black SUV in the convenience store parking lot taking
surveillance photos. CI subsequently returned to Officer
Butler’s vehicle and informed him that “Smoke” had
changed the buy location to a nearby Wendy’s restaurant.
The two drove to the restaurant; the CI exited Officer
Butler’s vehicle and entered a silver Subaru Baja, which is
a small pickup-type truck, driven by “Smoke.” Upon
returning to Officer Butler’s vehicle, the CI handed him
unsealed glassine packets that subsequently tested
positive for heroin [weighing “21 hundredths of a gram”
N.T., 10/24/11, at 125-126.]
While taking photos in the convenience store parking
lot, Detective Mitchell had obtained the tag number of the
Subaru Baja driven by “Smoke.” A subsequent records
search showed that the vehicle had been pulled over by
Officer Jeffrey Luntz of the Pocono Mountain Regional
Police that same day while being driven by [Appellant.]
Police then used [Appellant’s] name and date of birth to
obtain two photographs of him, which were subsequently
shown to CI in an attempt to confirm the connection
between the nickname “Smoke” and [Appellant]. CI did, in
fact, identify the individual in the photos as the person he
knew as “Smoke.” Officer Butler also recognized the
individual in the photos as the person who had sold heroin
to CI.
Commonwealth v. Gass, 349 MDA 2012 (unpublished mem. at 1-3) (Pa.
Super. Jan. 25, 2013).
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Appellant was initially charged with one count of possessing a
controlled substance with intent to deliver (“PWID”) heroin,2 and with
Dominic J. Mastri, Esq. (“trial counsel”) as his counsel, entered a guilty plea
in April 2011. However, Appellant filed a motion to withdraw his plea, and
the court, following a hearing in August 2011, held Appellant’s motion in
abeyance and scheduled trial for October 2011. The Commonwealth
amended the information to add one count of criminal use of a
communication facility.3 Appellant filed pretrial motions, which the trial
court denied.
On October 24, 2011, the trial court entered an order withdrawing
Appellant’s guilty plea. That same day, the matter proceeded to trial, and a
jury found Appellant guilty of both charges. On November 4, 2011, the
Commonwealth filed a sentencing memorandum seeking consecutive
sentences in the aggravated range of the Sentencing Guidelines.
Commonwealth’s Sentencing Mem., 11/4/11, at 1. The Commonwealth did
not refer to a mandatory minimum sentence in its memorandum or file a
separate notice of its intent to seek a mandatory sentence. On November
10, 2011,4 the trial court sentenced Appellant to three to six years’
2
35 P.S. § 780-113(a)(30).
3
18 Pa.C.S. § 7512(a).
4
The docket reflects that Appellant was sentenced on November 10, 2011.
The face sheet of the sentencing transcript indicates the hearing took place
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imprisonment for PWID and a concurrent one to two years’ imprisonment for
criminal use of a communication facility.
This Court affirmed the judgment of sentence on January 25, 2013.
See Gass, 349 MDA 2012, at 20. Appellant did not file a petition for
allowance of appeal in the Pennsylvania Supreme Court. Trial counsel
represented Appellant through his direct appeal.
On March 28, 2013, Appellant filed the pro se PCRA petition giving rise
to this appeal.5 The PCRA court appointed counsel, Kurt Lynott, Esq. (“PCRA
counsel”). PCRA counsel did not amend Appellant’s pro se petition, but
appeared at a conference on February 3, 2014.6 PCRA counsel stated that
“rather than do a formal amended petition,” he intended to frame
Appellant’s issues “on the record,” orally. N.T., 2/3/14, at 8. PCRA counsel
recited the following claims. Trial counsel was ineffective for failing to (1)
impeach police officers at trial, (2) ask questions from a list Appellant
provided him, (3) obtain independent photographs of the crime scene, (4)
file a petition for allowance of appeal in Appellant’s direct appeal, and (5)
on November 11th. We refer to the November 10th date in the text of this
memorandum, but cite to date of sentencing transcript as indicated on the
face sheet.
5
The record only contains the first page of the standard form pro se PCRA
petition.
6
Appellant, who was incarcerated at the time, participated by video
teleconferencing.
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challenge the removal of a juror “more aggressively at the time of trial.” Id.
at 8-11. PCRA counsel also represented that Appellant intended to challenge
the “legality of the sentence” because it exceeded the aggravated range
minimum sentence called for by the Sentencing Guidelines. Id. at 11.
Appellant made one correction to counsel’s recitation of his issues to include
his claim that trial counsel should have also impeached the CI at trial, but
did not assert additional claims. Id. at 12. The parties did not present
evidence at the conference, and a new hearing date was scheduled “for
March.” Id. at 22.
The docket indicates PCRA counsel thereafter filed a “motion to
withdraw as counsel” on June 26, 2014, but the record does not contain the
motion or a Turner/Finley7 “no-merit” letter. See Docket, CP-35-CR-
0001830-2010, 4/21/15, at 14. The docket also indicates the PCRA court,
on July 1, 2014, issued a Pa.R.Crim.P. 907(1) notice of intent to dismiss
Appellant’s petition. However, the court’s Rule 907 notice is not in the
record, and the docket does not contain a notation describing the methods
or parties included in the notice. See id.
On September 4, 2014, the PCRA court received Appellant’s pro se
letter and a motion for appointment of counsel, both dated August 23, 2014.
Appellant averred he attempted to correspond with the court between July 1
7
See Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988);
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
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and August 13, 2014. In his motion, he claimed PCRA counsel “failed to file
motions on [his behalf,] claiming the issues had no merit.” Appellant’s Mot.
for Appointment of Counsel, 9/4/14, at 1. Appellant also stated he prepared
a pro se motion for writ of habeas corpus based on the “many issues that
have merit and that [PCRA counsel] failed to file.” Id. The record does not
contain Appellant’s alleged correspondence to the court from July 1 and
August 13, 2014, or the purported motion for writ of habeas corpus. The
court denied Appellant’s motion for appointment of counsel on September 4,
2014. See Docket at 14.
The PCRA court, on January 20, 2015, entered the instant order
denying Appellant’s petition and granting PCRA counsel leave to withdraw.
The court attached to its order a memorandum opinion that it agreed with
PCRA counsel’s assessment that all claims were previously litigated. See
PCRA Ct. Op., 1/20/15, at 4-5. The court alternatively concluded three of
Appellant’s claims of ineffectiveness—those related to trial counsel’s failures
to ask the Appellant’s questions, impeach the trial witnesses, and obtain
photographs of the scene—were meritless. Id. at 7. The court reasoned
Appellant’s petition failed to establish “the alternative[s] not chosen offered
a potential for success greater than the course actually pursued.” Id.
Appellant took this timely appeal.8
8
The PCRA court did not order the filing of a Pa.R.A.P. 1925(b) statement.
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Appellant presents the following questions for review in his pro se
brief:
DID DEFENSE COUNSEL AS WELL AS COURT-APPOINTED
PCRA COUNSEL PROVIDE INEFFECTIVE ASSISTANCE?
WERE APPELLANT’S CONSTITUTIONAL RIGHTS UNDER THE
U.S. CONST., SIXTH AMENDMENT, AND PA. CONST.,
ARTICLE 1,9 VIOLATED WHEN THE DISTRICT MAGISTRATE
BOUND OVER APPELLANT’S CASE TO THE TRIAL COURT AS
THE RESULT OF THE DISTRICT ATTORNEY INTRODUCING
HEARSAY EVIDENCE IN ORDER TO ESTABLISH A PRIMA
FACIE CASE, DEPRIVING APPELLANT THE RIGHT TO
CONFRONT AND CROSS–EXAMINE A KEY WITNESS?
DID APPELLANT RECEIVE AN ILLEGAL SENTENCE BASED
ON THE UNITED STATES SUPREME COURT’S DECISION IN
[Alleyne]?
Appellant’s Brief at 4.
We summarize Appellant’s arguments as follows. Appellant raises two
claims of error at his preliminary hearing and sentencing, as well as
numerous challenges to his counsels’ performance at the preliminary
hearing, trial, sentencing, and the underlying PCRA proceeding.9
As to the preliminary hearing, Appellant asserts the testifying officer
“never personally saw a drug transaction take place between this Appellant
and the ‘C.I.’ but he (Officer) knew that a transaction did occur. [T]he ‘C.I.’
was not present at the Preliminary Hearing, therefore, the Officer’s
testimony in regards to this specific transaction was based on hearsay
9
Appellant has abandoned his claim that trial counsel was ineffective for
failing to file a petition for allowance of appeal in his direct appeal.
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evidence.” Id. at 11 (punctuation altered). Appellant claims trial counsel’s
failure to challenge the absence of the CI violated his right to confrontation
and waived his right to challenge the use of hearsay evidence to establish
that a drug transaction occurred. Id. at 11-12. He further raises a claim of
direct error asserting the hearsay evidence was insufficient to sustain the
finding of a prima facie case. Id. at 19.
As to trial, Appellant claims trial counsel was “grossly ineffective for
failing to uncover inconsistent statement made by both the CI” and Officer
Butler. Id. at 13. Further, trial counsel was ineffective for “failing to obtain
photos of the alleged scene of the ‘controlled buy[,]’” and “failing to
introduce evidence in the form of a diagram . . . to show the jury . . .
Appellant’s car was not parked in the manner testified to” by the
Commonwealth’s witnesses. Id. at 14-15. Therefore, trial counsel was
constitutionally deficient for failing to “call[ ] into question the credibility of
both the C.I. as well as that of the testifying officers” and use “photographic
evidence” to establish witnesses “made knowingly false statements under
oath during trial.” Id. at 13.
As to his sentence, Appellant avers the trial court applied a mandatory
minimum sentence based on the weight of the heroin sold to the CI. Id. at
16; see also 18 Pa.C.S. § 7508 (“Drug trafficking sentencing and
penalties”). He argues trial counsel should have been aware of the alleged
imposition of a mandatory sentence, “even though the Commonwealth never
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informed the defense that it was seeking a mandatory minimum
sentence[,]” and the trial court “never informed . . . [him it] was imposing a
mandatory minimum sentence[, and he was] misled to believe that the
sentence he received was due to his prior record score.” Appellant’s Brief at
16. Section 7508, he notes, has been declared unconstitutional in light of
Alleyne and he is thus entitled to relief. Id. at 21; see also
Commonwealth v. Thompson, 93 A.3d 478, 494 (Pa. Super. 2014).
Alternatively, he contends “the [trial c]ourt abused its discretion” by
sentencing outside the sentencing guidelines based on his prior record.
Appellant’s Brief at 19.
Lastly, as to the underlying PCRA proceeding, Appellant asserts PCRA
counsel was ineffective because he “failed to raise and argue” the issues set
forth above. Id. at 18. He disparages PCRA counsel’s performance by
referring to an alleged policy of appointing “torpedo” counsel. Id.
The Commonwealth suggests only one of Appellant’s issues were
“previously litigated[.]” Commonwealth’s Brief at 5. However, it contends
the PCRA court properly denied Appellant’s claim that trial counsel was
ineffective for obtaining photographs of the crime scene. Id. at 6. As to
Appellant’s remaining issues, the Commonwealth responds they were not
raised at the February 3, 2014 conference or in a timely response to the
PCRA court’s Pa.R.Crim.P. 907 notice and are thus waived. Id. at 5. The
Commonwealth separately addresses Appellant’s preliminary hearing and
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sentencing claims and argues, in the alternative, that they are waived on
different grounds and/or meritless. Id. at 8-13.
For the reasons that follow, we decline to find Appellant’s issues
waived based on his failure to preserve them in the PCRA court.
Nevertheless, our review of Appellant’s arguments and the record compels
the conclusion that Appellant has not carried his burden of establishing his
right to appellate relief.
At the outset, it is well-settled issues not raised in the PCRA court may
not be raised for the first time on appeal or sua sponte by this Court.10
Commonwealth v. Pitts, 981 A.2d 875, 879 & n.3 (Pa. 2009).
Nevertheless, the state of the record transmitted to this Court bears further
comment. The record does not contain complete copies of Appellant’s pro se
petition, PCRA counsel’s June 26, 2014 motion to withdraw and/or no-merit
letter, or the PCRA court’s Pa.R.Crim.P. 907 notice. The docket also does
not indicate when and to whom the court’s Rule 907 notice was distributed.
Appellant concedes in his brief to this Court that he “elected not to respond
to” the court’s Rule 907 notice. Appellant’s Brief at 7. However, Appellant’s
pro se letter to the court and his pro se motion for appointment of counsel,
10
One exception to this rule is that “[t]he denial of PCRA relief cannot stand
unless the petitioner was afforded the assistance of counsel” in a first PCRA
petition. Commonwealth v. Albrecht, 720 A.2d 693, 699 (Pa. 1998)
(citation omitted).
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both dated August 23, 2014, suggest otherwise.11 Further, despite
Appellant’s request to have docketed and filed his alleged communications to
the court following the issuance of the Rule 907 notice, there is no indication
the court received Appellant’s correspondence or attempted to comply with
the request. Appellant’s other purported pro se filings, including his alleged
motion for writ of habeas corpus addressing issues not raised by counsel
were not referenced by the court. Under these circumstances, and in an
abundance of caution, we decline to find waiver based on the failure to
present the issues raised in the brief in the PCRA court.
The standards for reviewing the denial of PCRA relief are well settled.
In conducting review of a PCRA matter, we consider the
record “in the light most favorable to the prevailing party
at the PCRA level.” Our review is limited to the evidence
of record and the factual findings of the PCRA court. This
Court will afford “great deference to the factual findings of
the PCRA court and will not disturb those findings unless
they have no support in the record.” Thus, when a PCRA
court’s ruling is free of legal error and is supported by
record evidence, we will not disturb its decision. Of
course, if the issue pertains to a question of law, “our
standard of review is de novo and our scope of review is
plenary.”
Commonwealth v. Stultz, 114 A.3d 865, 872 (Pa. Super.) (citations
omitted), appeal denied, 2015 WL 5749418 (Pa. Sept. 30, 2015). We may
affirm the PCRA court’s rulings on any basis apparent on the record.
11
Appellant, for example, stated, “I write because I have received a copy of
my docket sheet that was printed on 08/19/14. . . . I see the ‘notice of
intention to dismiss PCRA’ was signed on 07/01/14.” Letter from Appellant
to Clerk of Judicial Resources, 8/23/14.
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Commonwealth v. Wiley, 966 A.2d 1153, 1157 (Pa. Super. 2009) (citation
omitted).
“The PCRA, however, procedurally bars claims of trial court error, by
requiring a petitioner to show the allegation of error is not previously
litigated or waived. 42 Pa.C.S. . . . §§ 9543(a)(3), 9544.” Commonwealth
v. Reyes-Rodriguez, 111 A.3d 775, 780 (Pa Super.) (en banc), appeal
denied, 123 A.3d 331 (Pa. 2015). “Trial court error may constitute the
arguable merit prong of an IAC claim, but the issue must be framed properly
for a petitioner to be entitled to relief.” Id. (citation omitted).
“To plead and prove ineffective assistance of counsel a
petitioner must establish: (1) that the underlying issue has
arguable merit; (2) counsel’s actions lacked an objective
reasonable basis; and (3) actual prejudice resulted from
counsel’s act or failure to act.” The failure to meet any of
these aspects of the ineffectiveness test results in the
claim failing.
Stultz, 114 A.3d at 880 (citation omitted).
“As in all matters on appeal, the appellant bears the burden of
persuasion to demonstrate his entitlement to the relief he requests.”
Ruthrauff, Inc. v. Ravin, Inc., 914 A.2d 880, 893 (Pa. Super. 2005)
(citation omitted).
Although the courts may liberally construe materials filed
by a pro se litigant, pro se status confers no special benefit
upon a litigant, and a court cannot be expected to become
a litigant’s counsel or find more in a written pro se
submission than is fairly conveyed in the pleading.
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Commonwealth v. Blakeney, 108 A.3d 739, 766 (Pa. 2014), cert. denied,
135 S. Ct. 2817 (2015).
[t]he Rules of Appellate Procedure set forth the
fundamental requirements every appellate brief must
meet. . . .
The briefing requirements scrupulously delineated in
our appellate rules are not mere trifling matters of
stylistic preference; rather, they represent a studied
determination by our Court and its rules committee
of the most efficacious manner by which appellate
review may be conducted so that a litigant’s right to
judicial review . . . may be properly exercised. Thus,
we reiterate that compliance with these rules by
appellate advocates . . . is mandatory.
Commonwealth v. Perez, 93 A.3d 829, 837-38 (Pa. 2014) (citation
omitted), cert. denied, 135 S Ct. 480 (2014).
As to Appellant’s claims regarding the preliminary hearing, we
reiterate that assertions of trial court error are procedurally barred by the
PCRA. See Reyes-Rodriguez, 111 A.3d at 780. Thus, Appellant’s direct
claim of error in the preliminary hearing is waived under the PCRA.
Claims of ineffective assistance of counsel at a preliminary hearing are
cognizable under the PCRA. See Stultz, 114 A.3d at 882. However, the
prejudice that must be shown is whether the alleged ineffectiveness
“undermined the truth-determining process that no reliable adjudication of
guilt or innocence could have taken place[,]” see 42 Pa.C.S. §
9543(a)(2)(ii) (emphasis added), and not whether the outcome of the
preliminary hearing would be different. See Stultz, 114 A.3d at 882 (noting
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“It would be incongruous to make the prejudice analysis for purposes of
PCRA review less stringent than that during direct review”); accord
Commonwealth v. Sanchez, 82 A.3d 943, 984 (Pa. 2013) (reiterating
“once a defendant has gone to trial and has been found guilty of the crime
or crimes charged, any defect in the preliminary hearing is rendered
immaterial”).
Instantly, Appellant’s argument focuses on the outcome of the
preliminary hearing.12 See Appellant’s Brief at 14. He fails to assert trial
counsel’s omissions at the preliminary hearing “undermined the truth-
determining process” such “that no reliable adjudication of guilt or innocence
could have taken place.” See 42 Pa.C.S. § 9543(a)(2)(iii); Sanchez, 82
A.3d at 984; Stultz, 114 A.3d at 882. That the CI testified at trial and was
available for cross-examination further belie a claim of prejudice for the
purposes of the PCRA. See N.T., 10/24/11, at 57-76. Thus, Appellant’s
claims based on the preliminary hearing warrant no relief.
As to the claims of ineffectiveness at trial, Appellant merely asserts
that the CI and Officer Butler testified inconsistently at trial and that
diagrams and photographs would have established the witnesses’ false
testimony. However, he fails to include any specific reference to the record.
Such boilerplate arguments would require this Court to act as Appellant’s
12
We further note Appellant did not include a copy of the preliminary
hearing transcript in the record.
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counsel by scouring the transcript, speculating on the basis of this claim, and
framing an appropriate legal argument. Thus, these issues are waived for
appellate purposes. See Blakeney, 108 A.3d at 766; Perez, 93 A.3d at
837-38.
In any event, Appellant’s arguments appear to focus on the inability of
the surveilling officers to observe the transaction between him and the CI
and the reliability of their identifications of Appellant as “Smoke.” However,
in addition to the circumstantial evidence linking Appellant to the vehicle
driven to the controlled purchase, two officers, Officer Butler and Detective
David Mitchell, testified they observed Appellant during and after the
controlled buy and identified him at trial. N.T., 10/24/11, at 85, 106, 108.
Officer Butler testified he searched the CI before the meeting with Appellant
to ensure the CI did not have contraband and the CI returned from the
meetings with Appellant with a substance later proved to be heroin. Id. at
105-08. Accordingly, Appellant cannot establish prejudice attendant trial
counsel’s alleged omissions at trial, and this issue warrants no relief.
As to Appellant’s sentencing issue, we note mandatory minimum
statutes allowing a trial court to impose sentence based on facts found by a
preponderance of the evidence were lawful at the time of Appellant’s
sentencing in 2011, but are now unconstitutional. See Alleyne, 133 S. Ct.
at 2160; Thompson, 93 A.3d at 494. Further, 18 Pa.C.S. § 7508, which
formerly mandated sentences based on, inter alia, the weight of the
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substance sold, has been held unconstitutional in light of Alleyne. See
Thompson, 93 A.3d at 494.
A detailed recitation of the constitutional principles in Alleyne and
Thompson is unnecessary in the instant appeal as Appellant’s contention he
was sentenced to a mandatory minimum sentence is mere speculation and
lacks any support in the record. First, the Commonwealth did not seek a
mandatory minimum sentence. Second, the trial court imposed a minimum
sentence of three years for PWID without reference to Section 7508.
Rather, the court explained its imposition to exceed the sentencing
guidelines as follows:
[T]he reason for this sentence [is] that you do have a
prior record score of five.
You have three prior felony convictions for possession
with intent to deliver.
You have demonstrated that you are engaged in a
business of selling controlled substances for a living
between Luzerne County and New York State, and now
Lackawanna County, that in the past, you have failed to
successfully comply with probation or parole.
I noted in your criminal history that there were multiple
parole or probation violations that were lodged against
you.
The Court has taken all of these things into
consideration in determining the sentence.
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N.T., 11/11/11, at 13.13 Third, the 0.21 grams of heroin involved in this
case would not have triggered the former mandatory minimum sentence in
Section 7508.
Thus, the court did not apply a mandatory minimum sentence, but
rather sentenced him under its discretionary authority. Accordingly,
Appellant’s legality of sentence claim based on Alleyne is frivolous.
To the extent Appellant claims error in the court’s sentence, Appellant
previously challenged the discretionary aspects of his sentence in his direct
appeal. See Gass, 349 MDA 2012, at 17-20. This Court concluded that
“[t]he trial court clearly took into consideration the presentence report and
the information offered in support of [Appellant] by his attorney, as well as
[Appellant’s] prior convictions, his habitual criminality and his refusal to
accept responsibility for his crimes.” Id. at 20. Thus, we found no abuse of
discretion in the sentence. Id. Accordingly, this claim of direct error is
procedurally barred by the PCRA. See Reyes-Rodriguez, 111 A.3d at 780.
Appellant lastly contends that PCRA counsel provided ineffective
representation during the underlying PCRA proceeding. We hesitate to
consider this issue based on the incomplete record in this case and the
precept that a PCRA petition is entitled to “meaningful representation.” Cf.
Commonwealth v. Perez, 799 A.2d 848, 852 (Pa. Super. 2002). However,
in light of Pitts and Appellant’s failure to assert a potentially meritorious
13
See supra n. 4.
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issue in this appeal, we are constrained to conclude his derivative allegations
of PCRA counsel’s ineffectiveness warrant no further consideration by this
Court. See Pitts, 981 A.2d 875, 879 & n.3
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/12/2016
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