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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
DOMENIQUE JAMES LEWIS, :
:
Appellant : No. 1017 WDA 2015
Appeal from the PCRA Order June 4, 2015
In the Court of Common Pleas of Allegheny County
Criminal Division No(s).: CP-02-CR-0008184-2010
BEFORE: STABILE, J., DUBOW, J., and MUSMANNO, J.
MEMORANDUM BY DUBOW, J.: FILED MARCH 17, 2016
Appellant, Domenique James Lewis, appeals pro se from the order
entered on June 4, 2015, dismissing his first petition filed pursuant to the
Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. After careful
review, we reverse the order of the PCRA court, affirm Appellant’s
convictions, vacate the judgment of sentence, and remand for resentencing
consistent with Alleyne v. United States, __ U.S. __, 133 S.Ct. 2151, 186
L.Ed.2d 314 (2013).
The facts as stated in our memorandum opinion on direct appeal are
as follows:
At trial, Megan [Wilsher] testified that on February 26, 2010,
while Lewis was sitting in her living room, he stood up, pulled
out a gun, smiled at her, and fired at her. [Wilsher] testified
Lewis shot her in the face, and after she fell, he shot her again.
Wilsher lost her right eye as a result of the shooting. See N.T.,
6/22/2012, at 77, 80–81. In corroboration of this testimony, the
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Commonwealth presented evidence that Lewis’s fingerprints
were found on a Coke can recovered from the scene. See id. at
196–197.
Furthermore, the Commonwealth, through the testimony of
Detective Scott Evans, introduced a recorded statement made by
Lewis to police, in which he admitted that on February 26, 2010,
he had engaged in a struggle with Brett Quinn over a gun that
discharged in the living room; he took the gun and fired at Quinn
multiple times, chased him and took his chain and watch;
returned to the house where he took $400 to $500 dollars from
Wilsher’s purse, as well as her cellular phone; and then disposed
of the gun. See N.T., 6/23/2012, at 30–46. The
Commonwealth, through Detective Evans, also introduced
documentation to show Lewis did not possess a permit to carry a
gun. Id. at 46. Finally, outside the presence of the jury, the
Commonwealth offered into evidence the certification from the
juvenile court for Lewis’s robbery conviction. Id. at 87.
Commonwealth v. Lewis, No. 358 WDA 2012 (filed April 29, 2013).
A jury convicted Appellant of Criminal Attempt - Murder (two counts),
Aggravated Assault (two counts), Robbery (two counts), and Carrying a
Firearm Without a License.1 In a bifurcated waiver trial, the trial court found
Appellant guilty of Possession of Firearms Prohibited.2 On September 8,
2011, the trial court sentenced Appellant to an aggregate term of 33½ to 67
years of imprisonment.3
1
18 Pa.C.S. §§ 901(a) and 2502; 18 Pa.C.S. § 2702(a)(1); 18 Pa.C.S. §
3701(a)(1)(i); and 18 Pa.C.S. § 6106(a)(1), respectively.
2
18 Pa.C.S. § 6105(a)(1).
3
Specifically, the trial court sentenced Appellant to a term of twenty to forty
years’ incarceration for the first Attempted Murder conviction and a
consecutive term of five to ten years’ incarceration for the second Attempted
Murder conviction. The trial court imposed a consecutive term of five to ten
years’ incarceration for the first Robbery conviction, and a consecutive term
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Appellant filed a direct appeal. In an unpublished memorandum, this
Court affirmed Appellant’s judgment of sentence on April 29, 2013.
Commonwealth v. Lewis, No. 358 WDA 2012 (filed April 29, 2013). Our
Supreme Court denied Appellant’s Petition for Allowance of Appeal on
September 17, 2013. Commonwealth v. Lewis, 74 A.3d 1030 (Pa.Super.
2013). Appellant’s judgment of sentence became final on December 17,
2013.
On August 4, 2014, Appellant filed a timely pro se PCRA petition and
the PCRA court appointed counsel. On February 17, 2015, appointed
counsel filed a petition to withdraw and a no-merit letter pursuant to
Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and
Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988).
On February 18, 2015, the PCRA court filed a notice of its intent to
dismiss Appellant’s PCRA petition without a hearing pursuant to Pa.R.Crim.P.
907. On June 4, 2015, the PCRA court denied the petition and granted
counsel’s petition to withdraw. Appellant filed a timely pro se notice of
appeal on June 25, 2015. Both Appellant and the trial court complied with
Pa.R.A.P. 1925.
Appellant raised four issues on appeal, which we have reordered for
ease of disposition:
of three and one-half to seven years’ incarceration for the Carrying a
Firearm Without a License conviction. The trial court imposed a finding of
guilt without further penalty for the remaining convictions.
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a. Abuse of Discretion: Whether trial court abused its
discretion when not granting appellant a mistrial due
to the showing of graphic pictures of the victim
thereby causing an inflammatory reaction from the
jury as well as the suggestive nature of the victim's
identification of the appellant.
b. Ineffective Assistance of Counsel: Whether trial
counsel for appellant was ineffective for failure to
object to or challenge the suggestive nature of
victim, Wilsher’s identification of the appellant,
thereby violating Commonwealth v. Pursell, 724 A.2d
293, 304 (1999), Strickland v. Washington, 104
S.Ct. 2062(1984) and U.S.C.A. Const. Amend. 6.
c. Illegality of Sentence: Whether trial court erred in
sentencing appellant to an illegal sentence in
violation of U.S.C.A. Cont. Amend. 5, 8, 14 and Pa.
Const. Art. 1 §10, thereby giving appellant the right
to raise such claim by way of sentencing appellant
solely on the severity of crime.
d. Abuse of Discretion Based on Illegality of
Sentence: Whether Trial Court erred in respect to
the discretionary aspect of appellant’s sentence in
accordance to 42 Pa. Cons. Stat. § 9721, 9725, 204
Pa. Code § 303.2 et seq., and 42 Pa. Cons. Stat. §
9721(b) as appellant contends that he was
prejudiced by there being substantial question that
the sentence imposed was not appropriate under the
sentencing code, thereby, violating U.S.C.A. 5 and
14 and Pa. Const. Art 1 § 10, and Commonwealth v.
Urrutia, 653 A.2d 706, 710 (Pa. Super. 1995).
Appellant’s Brief at 3-4 (boldface removed).
We review the denial of a PCRA petition to determine whether the
record supports the PCRA court’s findings and whether its order is otherwise
free of legal error. Commonwealth v. Fears, 86 A.3d 795, 803 (Pa.
2014). This Court grants great deference to the findings of the PCRA court if
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they are supported by the record. Commonwealth v. Boyd, 923 A.2d 513,
515 (Pa.Super. 2007). We give no such deference, however, to the court’s
legal conclusions. Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa.Super.
2012).
A PCRA petitioner is not automatically entitled to an evidentiary
hearing. Commonwealth v. Miller, 102 A.3d 988, 992 (Pa.Super. 2014).
The PCRA court may decline to hold a hearing if the petitioner’s claim is
patently frivolous and has no support either in the record or in other
evidence. Id. The reviewing court on appeal must examine each issue
raised in the PCRA petition in light of the record before it in order to
determine if the PCRA court erred in its determination that there were no
genuine issues of material fact in controversy and in denying relief without
conducting an evidentiary hearing. Id.; see also Commonwealth v.
Roney, 79 A.3d 595, 604 (Pa. 2013) (applying abuse of discretion standard
to review of PCRA court’s denial of petition without a hearing).
To be eligible for relief pursuant to the PCRA, Appellant must establish,
inter alia, that his conviction or sentence resulted from one or more of the
enumerated errors or defects found in 42 Pa.C.S. § 9543(a)(2). Appellant
must also establish that the issues raised in the PCRA petition have not been
previously litigated or waived. 42 Pa.C.S. § 9543(a)(3). An allegation of
error “is waived if the petitioner could have raised it but failed to do so
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before trial, at trial, during unitary review, on appeal or in a prior state
postconviction proceeding.” 42 Pa.C.S. § 9544(b).
In his first issue, Appellant argues that the trial court abused its
discretion by denying his request for a mistrial based on allegedly
inflammatory graphic pictures of the victim and the suggestive nature of the
victim’s identification. The PCRA does not recognize such a claim. See 42
Pa.C.S. § 9543(a)(2). As the trial court properly found, this is an issue for
direct appeal. In fact, Appellant previously raised this issue on direct appeal
and this Court concluded that it was meritless. Commonwealth v. Lewis,
No. 358 WDA 2012 (filed April 29, 2013); see 42 Pa.C.S. § 9543(a)(3)
(stating allegation of error previously litigated not eligible for PCRA relief).
As a result, Appellant’s first claim on appeal must fail.
In his second issue on appeal, Appellant argues that his trial counsel
rendered ineffective assistance in failing to challenge the suggestive nature
of the victims’ identification.4 This claim is also without merit.
The law presumes counsel has rendered effective assistance.
Commonwealth v. Rivera, 10 A.3d 1276, 1279 (Pa.Super. 2010). The
burden of demonstrating ineffectiveness rests on Appellant. Id. To satisfy
this burden, Appellant must plead and prove by a preponderance of the
evidence that: (1) his underlying claim is of arguable merit; (2) the
4
Appellant argues here for the first time that his trial counsel was ineffective
for failing to request a Kloiber instruction. Since Appellant failed to include
this claim in his 1925 Statement of Errors it is waived.
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particular course of conduct pursued by counsel did not have some
reasonable basis designed to effectuate his interests; and (3) but for
counsel’s ineffectiveness, there is a reasonable probability that the outcome
of the challenged proceedings would have been different. Commonwealth
v. Fulton, 830 A.2d 567, 572 (Pa. 2003).
First, Appellant must meet the “arguable merit” prong. “The threshold
inquiry in ineffectiveness claims is whether the issue/argument/tactic which
counsel has foregone and which forms the basis for the assertion of
ineffectiveness is of arguable merit[.]” Commonwealth v. Pierce, 645
A.2d 189, 194 (Pa. 1994) (internal citation omitted). “Counsel cannot be
found ineffective for failing to pursue a baseless or meritless claim.”
Commonwealth v. Poplawski, 852 A.2d 323, 327 (Pa.Super. 2004)
(internal citation omitted).
Second, Appellant must meet the “no reasonable basis” prong. We
apply the “reasonable basis” test to determine whether counsel’s chosen
course was designed to effectuate his client’s interests. Pierce, supra at
194-95. “If we conclude that the particular course chosen by counsel had
some reasonable basis, our inquiry ceases and counsel’s assistance is
deemed effective.” Id. (internal citation omitted)
Third, Appellant must meet the “prejudice” prong. “Prejudice is
established when [a defendant] demonstrates that counsel’s chosen course
of action had an adverse effect on the outcome of the proceedings.”
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Commonwealth v. Chambers, 807 A.2d 872, 883 (Pa. 2002) (quoting
Commonwealth v. Balodis, 747 A.2d 341, 343-44 (Pa. 2000)). “The
defendant must show that there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have
been different.” Id. (quoting Strickland v. Washington, 466 U.S. 668,
694 (1984)). “A reasonable probability is a probability sufficient to
undermine confidence in the outcome.” Id. “A criminal defendant alleging
prejudice must show that counsel’s errors were so serious as to deprive the
defendant of a fair trial, a trial whose result is reliable.” Id. (quoting
Commonwealth v. Kimball, 724 A.2d 326, 331 (Pa. 1999)).
With respect to the identifications in this case, both victims initially
identified another individual, Josh Stone, as the shooter. Both victims later
identified Appellant as the shooter. At trial, both victims testified about their
initial misidentifications of Stone.
Contrary to Appellant’s argument, trial counsel did challenge the
nature of the victims’ identifications throughout the trial. Appellant’s trial
court addressed and challenged the identifications during her opening
statements. N.T. Trial, 6/22/11, at 39-40. She also vigorously cross-
examined the two victims regarding their identifications, the procedures
used, and their mis-identifications of other individuals. N.T. Trial, 6/22/11,
at 100-19, 150-59. In closing arguments, Appellant’s trial counsel again
challenged the identifications, attacked the victims’ credibility, and advanced
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the ultimately uncredited theory of misidentification. N.T. Trial, 6/23/11, at
145-60. Because trial counsel did challenge the identification evidence,
Appellant’s claim of ineffectiveness for failing to challenge the evidence lacks
arguable merit. See Pierce, supra at 194.
In his third and fourth issues on appeal, Appellant challenges the
discretionary aspects and the legality of his sentence. We need not address
his specific arguments because we are required to vacate Appellant’s
judgment of sentence on grounds not raised by Appellant. See
Commonwealth v. Watley, 81 A.3d 108, 118 (Pa.Super. 2013) (en banc)
(“Legality of sentence questions are not waivable and may be raised sua
sponte by this Court.”).
The certified record indicates that in 2011, the court imposed
mandatory minimum sentences pursuant to 42 Pa.C.S. § 9712 for each of
Appellant’s Attempted Murder and Robbery convictions.5 This Court affirmed
the judgment of sentence on direct appeal. While Appellant’s petition for
allowance of appeal was pending in our Supreme Court, the United States
Supreme Court decided Alleyne v. United States, __ U.S. __, 133 S.Ct.
2151, 186 L.Ed.2d 314 (2013), holding that any fact increasing the
mandatory minimum sentence for a crime is considered an element of the
5
Although the record does not contain a sentencing transcript, the
sentencing court’s forms indicate that it relied on Section 9712. We rely on
these facts from the certified record in reaching our conclusion that the trial
court relied on Section 9712 at Appellant’s sentencing.
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crime to be submitted to the fact-finder and found beyond a reasonable
doubt.
In Commonwealth v. Newman, 99 A.3d 86, 98 (Pa.Super. 2014)
(en banc), appeal denied, 121 A.3d 496 (Pa. 2015), this Court held that
pursuant to Alleyne, 42 Pa.C.S. § 9712.1 is no longer constitutional. In
Commonwealth v. Riggle, 119 A.3d 1058 (Pa.Super. 2015), this Court
declined to give Alleyne retroactive effect to cases on timely collateral
review when the defendant’s judgment of sentence had been finalized before
Alleyne was decided. In Commonwealth v. Miller, 102 A.3d 988
(Pa.Super. 2014), this Court observed that Alleyne does not invalidate a
mandatory minimum sentence when presented in an untimely PCRA petition.
Because Appellant’s judgment of sentence was not yet final when
Alleyne was decided and because he filed a timely PCRA petition, the
instant case is distinguishable from Riggle and Miller. Accordingly, because
the trial court sentenced Appellant to a mandatory minimum under Section
9712, which has been deemed unconstitutional, we must vacate his
judgment of sentence and remand for resentencing, without consideration of
the mandatory minimum sentence.
Appellant’s convictions for Attempted Murder, Aggravated Assault,
Robbery, Carrying a Firearm Without a License, and Possession of Firearms
Prohibited affirmed. Judgment of sentence vacated. Case remanded for
resentencing only. Jurisdiction relinquished.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/17/2016
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Com. v. Lewis, D.
Combined Opinion