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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
MIKOS MILLER
Appellant No. 1007 EDA 2015
Appeal from the PCRA Order March 31, 2015
In the Court of Common Pleas of Northampton County
Criminal Division at No(s): CP-48-CR-0002208-2005
BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E., and JENKINS, J.
MEMORANDUM BY GANTMAN, P.J.: FILED OCTOBER 18, 2016
Appellant, Mikos Miller, appeals from the order entered in the
Northampton County Court of Common Pleas, which dismissed his first
petition filed under the Post Conviction Relief Act (“PCRA”).1 We affirm and
grant counsel’s petition to withdraw.
This Court previously set forth the relevant facts and convoluted
procedural history of this case as follows:2
At approximately 1:00 a.m. on June 6, 2005, Appellant,
HyQawnn Wallace, Alex Kulp, and Terrill Gibbs invaded a
residence located on 624 Elm Street, Bethlehem, that was
____________________________________________
1
42 Pa.C.S.A. §§ 9541-9546.
2
We recognize a number of procedural irregularities throughout the history
of this case, none of which affects our current jurisdiction. Due to our
disposition, we decline to address them.
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occupied by nine people. The four cohorts were each
armed with a shotgun and also were in possession of one
handgun. They bound their victims and terrorized them
with the weapons, robbed eight people, placed a gun to
the head of a thirteen-year-old boy who was mentally
challenged, beat [one victim] with a weapon, ransacked
the home, and stole numerous items. During the criminal
episode, one of the occupants of the house escaped and
contacted police, who arrived while the four perpetrators
were still at the scene and in the process of placing [one of
the victims] in the trunk of a car. Appellant admitted to
police that he was caught red-handed and acknowledged
that he would be doing prison time for his actions.
On February 9, 2006, a jury convicted Appellant of eight
counts of robbery, nine counts of simple assault, and one
count each of aggravated assault, burglary, conspiracy to
commit robbery, conspiracy to commit burglary, and
conspiracy to commit simple assault. The Commonwealth
issued notice of intent to seek the mandatory minimum
sentence applicable to the crimes due to the fact that they
were committed while Appellant was in visible possession
of a firearm. At the March 6, 2006 sentencing proceeding,
the court had the benefit of a newly-compiled presentence
report, to which Appellant had no corrections. Appellant
had a criminal history and self-identified as a member of
the Bloods gang.
After consideration of the presentence report, facts of the
crime, arguments of counsel, Appellant’s failure to display
remorse, and all the factors outlined in the Sentencing
Code, the court imposed its sentence. Appellant received
concurrent sentences of five to ten years imprisonment as
to each of the eight robbery convictions. That five-to-ten-
year sentence was imposed consecutively to an identical
term for burglary. For the aggravated assault [conviction],
conspiracy to commit burglary, and conspiracy to commit
robbery, Appellant also received five to ten year terms of
incarceration, which were all consecutive to one another
and the other two sentences already imposed. Finally, the
court gave a consecutive sentence of six to twelve months
imprisonment as to one count of simple assault. No
penalty was imposed on the remaining [conspiracy to
commit simple assault conviction. The other eight counts
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of simple assault merged for purposes of sentencing.] The
total term of incarceration amounted to twenty-five and
one-half to fifty-one years.
Appellant’s post-sentencing rights were explained, but he
did not file a post-sentence motion. Instead, he proceeded
to file a direct appeal and challenged the discretionary
aspects of his sentence. He failed to comply with the
dictates of Pa.R.A.P. 2119(f) by placing in his brief a
separate statement of reasons relied upon for the appeal
of the discretionary aspects of the sentence imposed.
Since the Commonwealth objected to the lack of the
statement, we were prohibited from addressing the sole
contention raised in that appeal and affirmed.
Commonwealth v. Miller, 915 A.2d 146 (Pa.Super.
2006) (unpublished memorandum).
Appellant immediately filed a PCRA petition and contended
that counsel was ineffective for failing to properly present
Appellant’s allegation as to the soundness of his sentence.
The PCRA court, after conducting a hearing, concluded that
counsel was not ineffective because all sentencing
challenges were meritless. That PCRA petition was denied
by [order docketed on] June 28, 2007. Within one year of
our decision in Appellant’s direct appeal, Appellant filed a
second PCRA petition seeking reinstatement of his
appellate rights nunc pro tunc. The PCRA court granted
him relief on October 5, 2007.
In the ensuing appeal nunc pro tunc, Appellant’s
allegations again pertained to the discretionary aspects of
his sentence. We concluded that these averments were
not preserved since Appellant did not file a post-sentence
motion. Commonwealth v. Miller, 963 A.2d 569
(Pa.Super. 2008) (unpublished memorandum). The
Supreme Court denied review on January 16, 2009.
Commonwealth v. Miller, 964 A.2d 2 (Pa. 2009).
On April [1], 2010, Appellant filed a timely pro se PCRA
petition from his nunc pro tunc direct appeal. … Counsel
was appointed and amended that petition by requesting
the right to file a post-sentence motion nunc pro tunc.
That relief was granted by the court, and the
Commonwealth [did] not challenge that ruling. Appellant
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filed his post-sentence motion [nunc pro tunc], which was
dismissed by an order entered on March 4, 2011.
Appellant filed [a nunc pro tunc] appeal to this Court on
March 25, 2011 from dismissal of his post-sentence
motion.
Commonwealth v. Miller, No. 1889 EDA 2011, unpublished memorandum
at 1-5 (Pa.Super. filed March 8, 2013) (internal footnote and some internal
citations omitted). This Court affirmed Appellant’s judgment of sentence on
March 8, 2013, concluding Appellant’s challenges to the discretionary
aspects of his sentence merited no relief. See id. Appellant did not pursue
further direct review.
On April 2, 2014, Appellant filed the current counseled PCRA petition,
claiming trial counsel was ineffective for: (1) failing to conduct adequate
pre-trial investigation to prepare for Appellant’s defense; (2) failing to
challenge fingerprint evidence presented at trial, or to conduct an
independent analysis of the fingerprint evidence; (3) declining to file pre-
trial suppression motions challenging the identification of Appellant and
Appellant’s arrest, or a motion to sever Appellant’s case from his co-
defendants; and (4) conceding Appellant’s guilt during closing arguments.
The court held a PCRA hearing on May 2, 2014. On June 17, 2014, the
PCRA court denied relief.
In December 2014, Appellant wrote a letter to the Clerk of Courts
claiming he had asked PCRA counsel to file an appeal from the denial of
PCRA relief, but counsel failed to do so. The court appointed new counsel for
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Appellant on January 14, 2015. On March 23, 2015, counsel filed a motion
to file a nunc pro tunc appeal. In the alternative, counsel asked the court to
enter a new “final” order denying PCRA relief from which counsel could
timely file an appeal. On March 31, 2015, the court granted Appellant’s
motion and entered a “final” order re-affirming its June 17, 2014 denial of
PCRA relief. Appellant timely filed a notice of appeal on April 14, 2015.3
Preliminarily, appellate counsel has filed a Turner/Finley4 brief and
motion to withdraw as counsel. Before counsel can be permitted to
withdraw from representing a petitioner under the PCRA, Pennsylvania law
requires counsel to file a “no-merit” brief or letter pursuant to Turner and
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3
The court did not order Appellant to file a concise statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(b). Appellant filed a
voluntary pro se Rule 1925(b) statement, but his filing constitutes a legal
nullity because Appellant is still represented by counsel. See Pa.R.A.P. 3304
(stating where litigant is represented by attorney before court and litigant
submits for filing petition, motion, brief or any other type of pleading in
matter, it shall not be docketed but forwarded to counsel of record). See
also Commonwealth v. Ellis, 534 Pa. 176, 626 A.2d 1137 (1993) (holding
there is no constitutional right to hybrid representation at trial or on appeal;
this Court will not review pro se documents filed by represented appellants);
Commonwealth v. Nischan, 928 A.2d 349 (Pa.Super. 2007), appeal
denied, 594 Pa. 704, 936 A.2d 40 (2007) (explaining pro se filings submitted
by counseled defendants are legal nullities). On August 3, 2015, Appellant
filed a pro se motion seeking to amend his April 2, 2014 PCRA petition to
add a challenge to the legality of his sentence under Alleyne v. United
States, ___ U.S. ___, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013), and its
progeny. The court entered an order on January 22, 2016, stating it would
not entertain the pro se filing because Appellant was represented by counsel
and not entitled to hybrid representation, and an appeal was pending.
4
Commonwealth v. Turner, 518 Pa. 491, 544 A.2d 927 (1988) and
Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc).
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Finley. Commonwealth v. Karanicolas, 836 A.2d 940 (Pa.Super. 2003).
[C]ounsel must…submit a “no-merit” letter to the [PCRA]
court, or brief on appeal to this Court, detailing the nature
and extent of counsel’s diligent review of the case, listing
the issues which the petitioner wants to have reviewed,
explaining why and how those issues lack merit, and
requesting permission to withdraw.
Commonwealth v. Wrecks, 931 A.2d 717, 721 (Pa.Super. 2007). Counsel
must also send to the petitioner a copy of the “no-merit” letter or brief and
motion to withdraw and advise petitioner of his right to proceed pro se or
with privately retained counsel. Id. “Substantial compliance with these
requirements will satisfy the criteria.” Karanicolas, supra at 947.
Instantly, appellate counsel filed a motion to withdraw as counsel and
a Turner/Finley brief detailing the nature of counsel’s review and explaining
why Appellant’s issues lack merit. Counsel’s brief also demonstrates he
reviewed the certified record and found no meritorious issues for appeal.
Counsel notified Appellant of counsel’s request to withdraw and advised
Appellant regarding his rights. Thus, counsel substantially complied with the
Turner/Finley requirements. See Wrecks, supra; Karanicolas, supra.
Appellant raises the following issues in the brief filed on appeal:5
DID [THE] PCRA COURT ERR IN DISMISSING CLAIMS
RAISED IN [APPELLANT’S] PCRA PETITION DATED APRIL
2, 2014?
IS [APPELLANT] ENTITLED TO A REMAND FOR
SENTENCING BASED ON THE PENNSYLVANIA SUPREME
____________________________________________
5
Appellant filed a pro se response to counsel’s Turner/Finley brief.
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COURT’S DECISION IN COMMONWEALTH V. HOPKINS[,
___ Pa. ___, 117 A.3d 247 (2015)]?
(Turner/Finley Brief at 5).
As a second prefatory matter, the timeliness of a PCRA petition is a
jurisdictional requisite. Commonwealth v. Turner, 73 A.3d 1283
(Pa.Super. 2013), appeal denied, 625 Pa. 649, 91 A.3d 162 (2014). A PCRA
petition, including a second or subsequent petition, shall be filed within one
year of the date the underlying judgment of sentence becomes final. 42
Pa.C.S.A. § 9545(b)(1). A judgment of sentence is deemed final “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.A. § 9545(b)(3).
Pennsylvania law makes clear that a PCRA petition brought after a nunc pro
tunc direct appeal is considered a first PCRA petition, and the one-year time
clock will not begin to run until the nunc pro tunc direct appeal renders the
appellant’s judgment of sentence final. Turner, supra at 1286;
Commonwealth v. Fowler, 930 A.2d 586, 591 (Pa.Super. 2007), appeal
denied, 596 Pa. 715, 944 A.2d 756 (2008); Commonwealth v. O’Bidos,
849 A.2d 243, 252 n.3 (Pa.Super. 2004), appeal denied, 580 Pa. 696, 860
A.2d 123 (2004).
Instantly, the court reinstated Appellant’s post-sentence motion rights
nunc pro tunc on October 29, 2010, without objection from the
Commonwealth. Appellant subsequently filed timely post-sentence motions
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nunc pro tunc, which the court denied by final order entered March 4, 2011.
Appellant timely filed a direct appeal nunc pro tunc on March 25, 2011, and
this Court affirmed the judgment of sentence on March 8, 2013. Appellant
did not pursue further direct review. Thus, Appellant’s judgment of sentence
became final on April 7, 2013, upon expiration of time to file a petition for
allowance of appeal with our Supreme Court. See Pa.R.A.P. 1113(a)
(stating except as otherwise prescribed by this rule, petition for allowance of
appeal with Pennsylvania Supreme Court shall be filed within 30 days after
entry of order or judgment sought to be reviewed). Appellant filed the
current PCRA petition on April 2, 2014, which is timely. See 42 Pa.C.S.A. §
9545(b)(1). This petition constitutes Appellant’s “first” PCRA petition
following the date Appellant’s judgment of sentence became final. See
Turner, supra; Fowler, supra; O’Bidos, supra.
Our standard of review of the denial of a PCRA petition is limited to
examining whether the record evidence supports the court’s determination
and whether the court’s decision is free of legal error. Commonwealth v.
Ford, 947 A.2d 1251, 1252 (Pa.Super. 2008), appeal denied, 598 Pa. 779,
959 A.2d 319 (2008). This Court grants great deference to findings of the
PCRA court if the record contains any support for those findings.
Commonwealth v. Boyd, 923 A.2d 513, 515 (Pa.Super. 2007), appeal
denied, 593 Pa. 754, 932 A.2d 74 (2007). If the record supports a post-
conviction court’s credibility determination, it is binding on the appellate
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court. Commonwealth v. Knighten, 742 A.2d 679, 682 (Pa.Super. 1999),
appeal denied, 563 Pa. 659, 759 A.2d 383 (2000).
After a thorough review of the record, the briefs of the parties, the
applicable law, and the well-reasoned opinion of the Honorable Stephen G.
Baratta, we conclude Appellant’s first issue merits no relief. The PCRA court
opinion comprehensively discusses and properly disposes of that question.
(See PCRA Court Opinion, filed March 31, 2015, at 6-15)6 (finding: trial
counsel testified at PCRA hearing that contesting Appellant’s identification
and participation was unwise, due to overwhelming evidence that Appellant
was at scene of crimes; counsel testified he discussed trial strategy with
Appellant to present defense as “drug deal gone bad,” and Appellant agreed
with this strategy; Appellant offered no alibi witnesses; court credited
counsel’s testimony; Appellant failed to show counsel lacked reasonable
basis in pursuing chosen strategy, so this ineffectiveness claim fails;
additionally, counsel testified trial strategy was consistent with co-
defendant’s strategy, so motion to sever was not necessary; counsel
explained any pre-trial motions concerning identification would have been
unsuccessful based on amount of evidence against Appellant and agreed-
upon trial strategy; counsel’s testimony was credible; Appellant cannot show
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6
The PCRA court refers to the current April 2, 2014 petition as Appellant’s
third PCRA petition. We have already decided this petition constitutes
Appellant’s first PCRA petition for timeliness purposes, given the nunc pro
tunc relief granted in this case.
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prejudice to support ineffectiveness claims concerning counsel’s failure to file
pre-trial motions; Appellant also claims counsel failed to interview key
Commonwealth witnesses and failed to test fingerprint evidence linking
Appellant to crimes; counsel testified Appellant was involved in every step of
decision-making process, and Appellant did not ask counsel to interview
certain witnesses or to test fingerprint evidence independently because
Appellant agreed to pursue “drug deal gone bad” trial strategy; Appellant did
not indicate how interviews of Commonwealth’s witnesses would have
changed outcome of trial or produce any alibi witnesses for counsel to
interview; counsel’s decision not to test fingerprint evidence was reasonable
trial strategy, which Appellant agreed to; this ineffectiveness claim fails).
Therefore, we affirm Appellant’s first issue on the basis of the PCRA court’s
opinion.
In his second issue, Appellant argues the trial court imposed
mandatory minimum sentences in this case pursuant to 42 Pa.C.S.A. § 9712
(stating any person who is convicted of crime of violence shall be sentenced
to mandatory minimum five years’ imprisonment if, during commission of
offense, person visibly possessed firearm that placed victim in reasonable
fear of death or serious bodily injury).7 Appellant claims the jury did not
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7
Although Appellant cites Hopkins, supra in his statement of questions
presented, that case dealt with a mandatory minimum sentence under 18
Pa.C.S.A. § 6317 (imposing mandatory minimum sentence of two years’
(Footnote Continued Next Page)
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expressly find beyond a reasonable doubt that Appellant visibly possessed a
firearm during commission of the crimes, so imposition of the mandatory
minimum sentences violates Alleyne, supra (holding any fact increasing
mandatory minimum sentence for crime is considered element of crime to be
submitted to fact-finder and found beyond reasonable doubt). Appellant
insists the mandatory minimum sentences imposed in his case are
unconstitutional in light of Alleyne and its progeny. Appellant concludes he
is serving an illegal sentence and entitled to resentencing without imposition
of the mandatory minimum sentences. We disagree.
Preliminarily, we observe that Appellant raised his Alleyne challenge
for the first time in his August 3, 2015 pro se motion to amend his PCRA
petition. Appellant’s pro se filing constitutes a legal nullity because he was
represented by counsel when Appellant filed it. See Pa.R.A.P. 3304; Ellis,
supra; Nischan, supra. Additionally, Appellant’s appeal from the denial of
PCRA relief was already pending when he filed this motion. See
Commonwealth v. Lark, 560 Pa. 487, 746 A.2d 585 (2000) (holding that
when appellant’s PCRA appeal is pending before court, subsequent PCRA
petition cannot be filed until resolution of review of pending PCRA petition by
highest state court in which review is sought, or upon expiration of time for
seeking such review).
_______________________
(Footnote Continued)
imprisonment if defendant committed drug delivery in school zone). Section
6317 is inapplicable in this case.
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Recently in Commonwealth v. Washington, ___ Pa. ___, 142 A.3d
810 (2016), the Pennsylvania Supreme Court resolved the issue of whether
a petitioner could raise an Alleyne challenge to the legality of his sentence
involving a mandatory minimum sentence in a timely PCRA petition, where
the petitioner’s judgment of sentence became final prior to the Alleyne
decision. The Washington Court stated:
[A] new rule of law does not automatically render final,
pre-existing sentences illegal. A finding of illegality
concerning such sentences may be premised on such a
rule only to the degree that the new rule applies
retrospectively. In other words, if the rule simply does not
pertain to a particular conviction or sentence, it cannot
operate to render that conviction or sentence illegal. …
* * *
[N]ew constitutional procedural rules generally pertain to
future cases and matters that are pending on direct review
at the time of the rule’s announcement.
Id. at ___, 142 A.3d at 814-15 (emphasis added). See also id. at ___, 142
A.3d at 815 (stating: “[I]f a new constitutional rule does not apply, it cannot
render an otherwise final sentence illegal”). The Washington Court applied
the retroactivity analysis delineated in Teague v. Lane, 489 U.S. 288, 109
S.Ct. 1060, 103 L.Ed.2d 334 (1989), and determined the new constitutional
rule announced in Alleyne is not a substantive or watershed procedural rule
that would warrant retroactive application. Washington, supra at ___,
142 A.3d at 818-19. The Court held the defendant was not entitled to
retroactive application of Alleyne because his judgment of sentence became
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final before Alleyne was decided. Id.
Instantly, the court sentenced Appellant on March 6, 2006, imposing
mandatory minimum sentences for some of Appellant’s offenses, pursuant to
Section 9712. Due to the grant of nunc pro tunc relief multiple times
throughout the history of this case, Appellant’s judgment of sentence
became final on April 7, 2013. The United States Supreme Court decided
Alleyne on June 17, 2013, more than two months after Appellant’s
judgment of sentence was already final. See Alleyne, supra.
Consequently, Appellant is not entitled to relief under Alleyne at this
juncture. See Washington, supra (holding Alleyne does not apply
retroactively on collateral review to challenge to mandatory minimum
sentence as “illegal”). Thus, Appellant’s second issue merits no relief.
Following our independent examination of the record, we conclude the
appeal is frivolous and affirm; we grant counsel’s petition to withdraw.8
Order affirmed; counsel’s petition to withdraw is granted.
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8
Our disposition addresses all issues presented in Appellant’s pro se
response to appellate counsel’s Turner/Finley brief, so we need not further
discuss any of those claims. To the extent Appellant complains PCRA
counsel was ineffective for failing to preserve the Alleyne challenge in
Appellant’s April 2, 2014 PCRA petition, that claim is meritless in light of our
disposition. Additionally, Appellant filed an application for appointment of
new counsel for this appeal. We deny Appellant’s request.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/18/2016
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Circulated 09/27/2016 02:54 PM
IN THE COURT OF COMMON PLEAS OF NORTHAMPTON COUNTY
COMMONWEALTH OF PENNSYLVANIA
CRIMINAL DIVISION
COMMONWEAL TH OF PENNSYLVANIA
v.
MIKOS MILLER,
Defendant
ORDER OF COURT
AND NOW, this-:?1'7a;·. -~f March, 2015, upon consideration of Defendant's, Mikos
Miller, Nunc Pro Tune Petition to Perfect Appeal, said petition is hereby GRANTED.
This Court hereby reaffirms the Order entered on June 17, 2014, denying Miller's
petition for relief filed pursuant to the Post-Conviction Relief Act (PCRA), 42
PA.CONS.STAT.ANN.§§
9541-9546.
STATEMENT OF REASONS
Factual Background and Procedural History
This is the Miller's third PCRA filing. On February 9, 2006, a jury convicted Miller
of one count of Aggravated Assault (F2), 18 PA.CONS.STAT.ANN. § 27_02r{~)(~); three
counts of Conspiracy (F1), 18 PA.CONS.STAT.ANN. § 903(a)(1); eight counts of Robbery
(F1), 18 PA.CONS.STAT.ANN. § 3701(a)(1)(ii); one count of Burglary (F1), 18
PA.CONS.STAT.ANN. § 3502(a)(1); and nine counts of Simple Assault (M2), 18
PA.CONS.STAT.ANN. § 2701(a)(3). On March 6, 2006, the Honorable William F. Moran
sentenced Miller to an aggregate period of twenty-five and one half (25%) to fifty-one
(51) years' imprisonent.
With regard to the criminal episode in this case, the record shows that on June 6,
2005, Miller and three co-defendants invaded a residence on 624 Elm Street,
Bethlehem, Northampton County, Pennsylvania, which was occupied by nine people.
The co-conspirators were each armed with shotguns and possessed one handgun.
After entering the house, they bound the victims and terrorized them with weapons.
They then placed a gun to the head of a thirteen-year-old boy with mental disabilities,
"pistol-whipped" one of the victims, ransacked the residence and stole numerous items.
One of the victims escaped during the alleged robbery and called the police. The police
arrived while the assailants were still present and in the process placing a victim into a
car trunk. The assailants then fled the crime scene. The police identified and arrested
Miller approximately one block away from the residence and discovered certain items
that were stolen from the residence during the arrest.
Although Miller did not file any post-sentence motions, he filed a direct appeal
challenging the discretionary aspects of sentencing. The Superior Court of
Pennsylvania determined that Miller had failed to place in his brief a separate statement
of reasons relied upon for the appeal of the discretionary aspects of sentence pursuant
to Pa. R.A. P. 2119(f). As a result, the Superior Court refused to address the sole issue
raised in the appeal and affirmed Judge Moran's sentence.
On January 22, 2007, Miller filed his first PCRA petition, in which he asserted
that trial counsel was ineffective for failing to properly prosecute his appeal of the
discretionary aspects of his sentence. This Court denied PCRA relief on June 28, 2007.
On July 25, 2007, Miller filed a Motion for Leave to File Appeal Nunc Pro Tune, in which
he sought to reinstate his appellate rights. After a hearing, Judge Moran granted that
2
relief on through an Order and Statement of Reasons filed on October 5, 2007. Miller
filed an appeal nunc pro tune regarding the discretionary aspects of sentencing. The
Superior Court affirmed Miller's judgment of sentence on S~'c1u' ,11 ioo~i, finding that
the issue had not been preserved due to Miller's failure to file a post-sentence motion.
On January \ \J, 2009, the Supreme Court denied allocatur.
Miller filed a second PCRA on April 1, 2010. In an amended petition, filed on
July 26, 2010, Miller sought a reinstatement of his right to file post-sentence motions.
On October 25, 2010, with no objection from the Commonwealth, this Court granted the
petition, reinstating Miller's right to file post-sentence motions. Miller filed a Post-
Sentence Motion on November 4, 2010. Judge Moran denied and dismissed the Post-
Sentence Motion without a hearing on February 24, 2011, and issued a Corrected Order
on March 4, 2011. Miller appealed this decision to the Superior Court on March 25,
2011. On . \I\ (l(c.,\\ 1J2013, the Superior Court affirmed the sentence.
On April 2, 2014, Miller filed the instant PCRA Petition. As Judge Moran has
since retired from his commission, this case was reassigned to the undersigned. In his
PCRA Petition, Miller raises claims that were not proffered in his first two PCRA
petitions. Now, Miller asserts that he was denied his right to effective assistance of
counsel, as guaranteed by Article I, Section 9 of the PennsylvaniaConstitution, and the
Sixth and Fourteenth Amendments of the United States Constitution. Specifically, he
argues that:
(1) Trial counsel failed to conduct a pretrial investigation or adequately
prepare to defend the Defendant;
(2) Trial counsel failed to challenge alleged fingerprint evidence and/or
conduct independent testing of fingerprint evidence which was
introduce[d] by the Commonwealth at trial;
3
(3) Trial counsel failed to file pretrial motions, including motions.
challenging the identification of the defendant, motions to exclude
evidence obtained as 'fruits' of an unlawful arrest and a motion to
sever the trial of the instant Defendant and other defendants on the
basis of antagonistic defenses;
(4) Trial counsel was ineffective in conceding Defendant's guilt during
closing argument without previously discussing with the Defendant and
obtaining the Defendant's consent to such trial strategy.
See Petition for Post Conviction Collateral Relief, 04/02/14, at 2.
Because this third PCRA was brought within one year of the final order affirming
the discretionary aspects of the original sentence and it raised new claims of ineffective
assistance of counsel, we entertained the new claims.
On May 2, 2014, a PCRA hearing was held, in which both Miller and trial
counsel, Bohdan Zelechiwsky, Esquire, testified. Miller testified that he had limited
awareness of the evidence against him before trial, as he had seen trial counsel only a
few times before going to trial and the fingerprint evidence had not been produced until
approximately two days before trial. As such, he argued that trial counsel had failed to
adequately prepare for trial, as trial counsel had not thoroughly investigated certain
witnesses and the evidence. He also asserted that trial counsel had failed to file certain
pretrial motions, including a motion challenging the identification of the witnesses, a
suppression motion on the theory of an unlawful arrest, and a motion to sever his trial
from that of his co-defendant. Additionally, Miller complained that trial counsel had
conceded his guilt using the same strategy as his co-defendant, that of a "drug deal
gone bad."
In response, trial counsel argued that he had met with. Miller on multiple
occasions and reviewed the facts of the case carefully with the petition as soon as he
4
received discovery. Trial Counsel testified that given the heinous nature of the crimes
committed and the evidence against Miller, Miller had chosen a strategy that arguably
had the highest probability of success. Trial Counsel reflected that this strategy had
been chosen after the receipt of discovery. Further, counsel noted that no alibi
witnesses were suggested and no other defense was presented, other than Miller was
at the scene and that it was not a robbery but rather a "drug transaction gone bad."
Miller and his co-defendant were of one mind with regard to the trial strategy.
Further, trial counsel stated that Miller had been highly involved and outspoken
during trial preparation, and had not requested that trial counsel file any of the motions
suggested in his current PCRA Petition, including a motion to sever or to challenge
Miller's identification. Additionally, trial counsel testified that it made sense to try Miller
and his co-defendant together, as they shared the same trial strategy. Due to the trial
strategy, trial counsel chose not to interview the eyewitnesses or independently test the
fingerprint evidence, as the trial strategy acknowledged Miller's presence at the scene.
Further, Miller offered no alibi witnesses.
On May 14, 2014, Miller submitted his "Brief in Support of Motion for Post-
Conviction Collateral Relief." On May 29, 2014, the Commonwealth submitted its "Brief
in Response to Defendant's Petition for PCRA Relief." On June 17, 2014, this Court
entered an Order denying PCRA relief.
On July 2, 2014, upon the retirement and resignation of Miller's PCRA counsel
from the conflicts counsel team, Brian M. Monahan, Esquire was appointed to represent
Miller. Upon finding the existence of a conflict of interest with Attorney Monahan, this
Court appointed Christopher M. Brett, Esquire to represent Miller on July 11, 2014.
5
Attorney Brett failed to file an appeal from this Court's order of June 17, 2014. Attorney
Brett has since been placed on administrative suspension. We appointed counsel to
represent Miller in his PCRA hearing of May 2, 2014 and during the appellate period in
conformance with Pa.R.Crim. P. 904. The Superior Court of Pennsylvania interpreted
Rule 904 in Commonwealth v. Jackson, 965 A.2d 280 (Pa. Super. 2009) as requiring
the following: "if the appointment of counsel is deemed necessary for purposes of
conducting an evidentiary hearing, then the petitioner requires the assistance of counsel
throughout the litigation of the issue. Such litigation necessarily includes the appeals
process." According to Miller's letter of December 29, 2014, no appeal was filed despite
Miller's desire to pursue appellate relief. Therefore, we were bound under Rule 904 to
appoint new counsel for Miller, as he required the assistance of counsel for purposes of
appeal. This Court appointed James F. Brose, Esquire to represent Miller. The time for
filing an appeal from our June 17, 2014 order has since elapsed. In order to permit
counsel to perfect Miller's appeal rights with respect to the denial of his PCRA petition,
we hereby enter this Order denying his PCRA.
Legal Standard
Counsel is presumed to be effective; the burden of proving otherwise rests with
the petitioner. See Commonwealth v. Cox, 983 A.2d 666, 678 (Pa. 2009). Generally,
"where matters of strategy and tactics are concerned, counsel's assistance is deemed
constitutionally effective if he chose a particular course that had some reasonable basis
designed to effectuate his client's interest." Commonwealth v. Puksar, 951 A.2d 267,
277 (Pa. 2008). Further, "[c]ounsel's performance is presumed constitutionally
adequate, and will be deemed ineffective only upon a petitioner's three-pronged
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showing that counsel's ineffectiveness was such that, 'in the circumstances of the
particular case, [it] so undermined the truth-determining process that no reliable
adjudication of guilt or innocence could have taken place." Commonwealth v. Dennis,
950 A.2d 945, 954 (Pa. 2008) (quoting Commonwealth v. Rios, 920 A.2d 790, 799
(Pa. 2007)).
In order for a petitioner to prevail on his claims of ineffective assistance of
counsel, the petitioner must plead and prove, by the preponderance of the evidence,
three elements: "(1) the underlying legal claim has arguable merit; (2) counsel had no
reasonable basis for his or her action or inaction; and (3) [the petitioner] suffered
prejudice because of counsel's action or inaction." Commonwealth v. Hutchison, 25
A.3d 277, 285 (Pa. 2011) (citing Commonwealth v. Pierce, 527 A.2d 973 (Pa. 1987)).
The failure of a petitioner to satisfy any of the prongs set forth above requires a rejection
of the ineffectiveness claim. See Dennis, 950 A.2d at 954.
Under the first prong, if a claim lacks merit, the court's inquiry ceases, as counsel
will not be deemed ineffective for failing to pursue a baseless or meritless issue. See
Commonwealth v. Johnson, 588 A.2d 1303, 1305 (Pa. 1991 ). In order to prove the
second prong of this test ("the Pierce standard"), the "reasonable basis" prong, a
petitioner must prove that "an alternative not chosen offered a potential for success
substantially greater than the course actually pursued." Hutchison, 25 A.3d at 285
(citing Commonwealth v. Williams, 899 A.2d 1060, 1064 (Pa. 2006). In order to
establish the third prong of the test, a petitioner must prove "that there is a reasonable
probabllity that the outcome of the proceedings would have been different but for·
counsel's action or inaction." Id.
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The petitioner's abstract allegations of ineffectiveness will not be considered.
See Commonwealth v. DeHart, 650 A.2d 38, 43 (Pa. 1994). Instead, "a petitioner
must allege actual prejudice and be able to identify a specific factual predicate that
demonstrates how a different course of action by prior counsel would have better
served his interest." kL. Further, "an evaluation of counsel's performance is highly
deferential, and the reasonableness of counsel's decision cannot be based upon the
distorting effects of hindsight." Commonwealth v. Basemore, 744 A.2d 717, 735 (Pa.
2000).
Discussion
A. Trial s.trategy
First, Miller alleges that trial counsel was ineffective because he chose and
pursued a strategy under which Miller's guilt was not contested. Miller argues that he is
not guilty of the crimes for which he was convicted, and that trial counsel's strategy
resulted in a guilty verdict. Trial Counsel's strategy, which was apparently based on the
discovery and formed after discussion with Miller, was to admit Miller's presence at the
scene of the crime, but to also frame it as a "drug transaction gone wrong." Essentially,
Miller argues, the trial strategy was tantamount to admitting his guilt, because questions
as to his identity and involvement in the crime were not contested.
We note Miller did not identify any alleged alibi witnesses, nor did he present a
summary of anticipated testimony by his alibi witnesses.
In determining whether counsel's acts or omissions were reasonable, defense
counsel is accorded broad discretion to determine tactics and strategy. See
Commonwealth v. Thomas, 744 A.2d 713, 717 (Pa. 2000). We find that the cases of
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Commonwealth v. Johnson, 815 A.2d 563 (Pa. 2002) and Commonwealth v. Lofton,
292 A.2d 327 (Pa. 1972) are instructive in determining whether an admission of guilt .
can constitute a reasonable defense strategy. In both of those cases, the Supreme
Court of Pennsylvania found that defense counsel had a reasonable basis for pursuing
the trial strategy and, as a result, the claim of ineffective assistanceof counsel failed.
In Johnson, supra, defense counsel chose to not present diminished capacity
evidence because it did not promote his defense strategy: that the co-defendant had
shot the victims instead. See Johnson 815 A.2d at 576-77. Defense counsel deemed
that an investigation into the diminished capacity would not promote his trial strategy,
because the only credible defense based on the evidence was to admit partial
participation but to deny that the defendant had the motive to kill the victims and to
promote the idea that his client had stopped facilitating the commission of the crime
prior to the shootings. See id. The Supreme Court of Pennsylvaniafound that defense
counsel had a reasonable basis for the strategy chosen, and therefore he was not
ineffective for failing to present diminished capacity evidence. See id. at 578-79.
In Lofton, supra, another homicide case, defense counsel chose a trial strategy
conceding a degree of guilt. Defense counsel in that case conceded that the defendant
was guilty of first degree murder in the face of overwhelming evidence. Lofton, 292
A.2d at 330. Instead, defense counsel concentrated on avoiding the death penalty by
casting the defendant as only a "lookout" for the other felons and by arguing that the
defendant did not reasonably believe that a killing would occur during the robbery. See
id. The Supreme Court of Pennsylvania found that: "While we believe that a
concession by counsel at a degree of guilt hearing that his client is guilty of first degree
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murder should be offered only with the utmost of caution and only in those cases where
the evidence to that effect is truly overwhelming, we cannot conclude on this record that
[defendant's] counsel's strategy lacked any 'reasonable basis."' Id. As a result, the
Lollon court rejected the defendant's ineffective assistance of counsel claim. See id.
Similarly, in the instant case, trial counsel testified at the PCRA hearing that
based upon the evidence uncovered during discovery and a careful review of the facts
with Miller, it would be ineffective to argue that Miller was not present at the scene of the
crime. Trial Counsel testified that the evidence uncovered included (1) the identification
of the Miller by the police and the victims of the crime, in part based upon an easily
identifiable hairstyle (an "afro"), and (2) items belonging to the victims found with the
Petitioner at the time of arrest, approximately one block away from the house, after the
assailants had allegedly fled the residence. Later, the Commonwealth made trial
counsel aware of fingerprint evidence that linked Miller to the scene of the crime.
Further, trial counsel submitted that the heinous nature of the crime would make
contesting identity and guilt a dangerous strategy during sentencing. Finally, trial
counsel testified that he had carefully reviewed the evidence with Miller, who agreed
that this strategy gave him the highest probability of success based on the evidence.
We find trial counsel's testimony to be credible.
We also find that Miller has failed to show that trial counsel lacked a reasonable
basis for pursuing this trial strategy. Here, Miller has not proven by the preponderance
of the evidence that "an alternative not chosen offered a potential for success
substantially greater than the course actually pursued." Williams, 899 A.2d at 1064.
Further, Miller apparently agreed with the strategy throughout pretrial activities and his
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trial. He cannot prove ineffective assistance of counsel by merely showing that, in
hindsight, the trial strategy chosen did not produce the desired result. As a result, we
find that Miller has failed to prove his ineffective assistance of counsel claim.
B. Pretrial Motions
Miller also asserts that trial counsel failed to file pretrial motions, chiefly, that he
failed to file a motion to sever his trial from that of his co-defendant. In his brief, Miller
contends that "Given the co-defendant's admissions, his defense, while not entirely
antagonistic, was certainly inconsistent with the [Petitioner's] contention that he had
nothing to do with the criminal activity." Brief in Support at 7. Miller thus argues that a
motion to sever should have been filed because the trial strategies for him and his co-
defendant were inconsistent.
At the PCRA hearing, however, trial counsel testified that Miller had understood
and agreed with the trial strategy throughout pretrial discussions, jury selection and the
trial. Further, trial counsel stated that the defense strategies of Miller and the co-
defendant were in line with each other, and that he therefore did not deem a motion to
sever necessary based on the coinciding trial strategies. Additionally, trial counsel
testified that any motions questioning Miller's identification by multiple victims would be
ineffective, given the weight and nature of the evidence against Miller, including
fingerprints, the timing of the arrest and Miller's easily-identifiable afro. We find this
testimony to be credible.
Miller has not shown that the result of the trial would have been different had trial
counsel filed these motions by the preponderance of the evidence, failing to establish
prejudice, the third prong of the Pierce standard. Further, trial counsel has shown that
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the course of action chosen, to not file the motions suggested by Miller during his most
recent PCRA hearing, complied with the agreed-upon trial strategy. Therefore, we find
that Miller's ineffective assistance of counsel claims against trial counsel must fail.
C. Trial Preparation
With regard to PCRA claims of ineffective assistance of counsel, our Supreme
Court has found that: "Counsel has a duty to undertake reasonable investigations or to
make reasonable decisions that render particular investigations unnecessary."
Basemore, 744 A.2d at 735 (citing Strickland v. Washington, 466 U.S. 668, 691
(1984)). Further, "[w]here counsel has made a strategic decision after a thorough
investigation of law and facts, it is virtually unchallengeable; strategic choices made
following a less than complete investigation are reasonable precisely to the extent that
reasonable professional judgment supports the limitation of the investigation." _Id. This
evaluation of counsel's performance is "highly deferential" and the evaluation of the
reasonableness of the decisions "cannot be based upon the· distorting effects of
hindsight. Id. Additionally, "reasonableness in this context depends, in critical part,
upon the information supplied by the defendant." Id. As a result, if counsel is not given
notice of particular mitigating evidence, he cannot be found ineffective for failing to
pursue that piece of evidence. See id.
Here, Miller claims ineffective assistance of counsel because trial counsel failed
to adequately prepare for trial. Miller submits that trial counsel failed to interview key
Commonwealth witnesses and independently test fingerprint evidence that linked him to
the home robbery. Further, Miller claims that he was not involved in the process of
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determining a trial strategy, as trial counsel failed to adequately review discovery with
him.
In response, trial counsel testified at the PCRA hearing that he met with Miller on
multiple occasions and that Miller was involved in every step of the decision making
process. Further, trial counsel asserts that that Miller never requested that he interview
those witnesses or independently test the evidence, as Miller wished to pursue the
strategy that the criminal event was not a robbery but rather a "drug transaction gone
wrong."
Miller asserts that under Commonwealth v. Dennis, 950 A.2d 945 (Pa. 2008),
trial counsel was ineffective for failing to investigate potential alibi witnesses, failing to
. interview witnesses who had identified him, and failing to prepare an independent
investigation of the fingerprints found at the scene of the crime. In Dennis, a homicide
case, our Supreme Court examined whether counsel was ineffective for failing to
investigate eyewitnesses and a possible alibi witness, as well as for failing to discover
evidence related to the murder weapon. Dennis, 950 A.2d at 957. The court discussed
cases in Pennsylvania which stand for the proposition that "at least where there is a
limited amount of evidence of guilt, it is per se unreasonable not to attempt to
investigate and interview known eyewitnesses in connection with defenses that hinge
on the credibility of other witnesses." ki; at 960 (emphasis in original). Such an
omission is not, however, is not per se prejudicial. See id. The Dennis court found that
the defendant had failed to properly plead and prove that trial counsel's failure to
interview certain witnesses and vet a potential alibi witness, and therefore that his claim
of ineffectiveness of counsel lacked arguable merit. See id. at 961-64.
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Similarly, we find here that the claim of ineffective assistance of counsel based
upon the failure to interview eyewitnesses lacks arguable merit. At the PCRA hearing,
Miller testified that he wished to challenge the identification of him by eyewitnesses, as
he argued that their identifications were not wholly independent. In response, trial
counsel argued that he did not interview the witnesses because of the wealth of
evidence against Miller and because such interviews would not have contributed to his
trial strategy. Miller did not offer the testimony of any of the witnesses, nor state how
such interviews would have changed the outcome of the trial. Further, Miller did not
mention any alibi witnesses to trial counsel, nor did he present any evidence regarding
any such witnesses at his PCRA hearing. As such, we find that these claims lack
arguable merit.
With regard to Miller's claim of inadequate trial preparation based on the failure
of trial counsel to independently test the fingerprint evidence, we find that such a
decision was reasonably based on the trial strategy employed. Miller agreed
continuously to this strategy throughout pretrial discussions, jury selection and the trial.
As the strategy did not attack Miller's presence at the crime scene, Trial Counsel cannot
be held ineffective for failing to independently investigate that evidence. Again, Miller
also failed to present evidence at the hearing to show by the preponderance of the
evidence that an independent investigation by trial counsel with regard to the fingerprint
evidence would have produced a different result. We find that this claim lacks arguable
merit.
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Accordingly, Miller's claims of ineffective assistance of counsel must be rejected,
as Miller has failed to establish ineffective assistance of counsel by the preponderance
of the evidence.
BY THE COURT:
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