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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
KHASHION M. GARLAND, :
:
Appellant : No. 3551 EDA 2015
Appeal from the PCRA Order November 10, 2015
In the Court of Common Pleas of Philadelphia County
Criminal Division at No.: CP-51-CR-0007256-2009
BEFORE: STABILE, J., DUBOW, J., and STEVENS, P.J.E.*
MEMORANDUM BY DUBOW, J.: FILED JANUARY 06, 2017
Appellant, Khashion M. Garland, appeals from the Order entered in the
Philadelphia County Court of Common Pleas dismissing his first Petition filed
under the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-9546.
After careful review, we affirm.
On September 17, 2010, a jury convicted Appellant of Third-Degree
Murder1 and related firearms offenses. On December 17, 2010, the trial
court imposed an aggregate sentence of 22½ to 45 years’ incarceration.
Appellant filed a direct appeal, and this Court affirmed Appellant’s Judgment
*
Former Justice specially assigned to the Superior Court.
1
18 Pa.C.S. § 2502(c).
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of Sentence on March 1, 2013.2 See Commonwealth v. Garland, 63 A.3d
339 (Pa. Super. 2013). Appellant did not seek further review.
On February 28, 2014, Appellant filed the instant pro se PCRA Petition,
his first. The trial court appointed counsel, and counsel filed an Amended
PCRA Petition on April 29, 2015. On October 6, 2015, the PCRA court issued
a Pa.R.Crim.P. 907 Notice advising Appellant of its intent to dismiss his
Petition. Appellant did not file a response.
On November 9, 2015, the PCRA court dismissed Appellant’s Petition
without a hearing.
Appellant filed a timely Notice of Appeal.3 Appellant presents one
issue for our review:
Did the trial court err in not reinstating [A]ppellant’s right to file
an appeal nunc pro tunc from the [J]udgment of [S]entence due
to ineffective assistance [of] appellate defense counsel on direct
appeal in that appellate counsel was ineffective for waiving the
issue of trial court’s error in denying the motion to suppress the
firearm that was allegedly found on the [A]pellant at the time of
his arrest[?]
Appellant’s Brief at 2.
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
2
On direct appeal, this Court concluded, inter alia, that Appellant waived his
first claim regarding his motion to suppress the firearm he discarded when
fleeing from police on the night of his arrest because he failed to present this
specific issue in his Pa.R.A.P. 1925(b) Statement.
3
The trial court did not order a Pa.R.A.P. 1925(b) Statement, but the trial
court filed a Pa.R.A.P. 1925(a) Opinion on February 17, 2016.
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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
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). There is no right to a PCRA hearing; a hearing is unnecessary
where the PCRA court can determine from the record that there are no
genuine issues of material fact. Commonwealth v. Jones, 942 A.2d 903,
906 (Pa. Super. 2008).
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
before trial, at trial, during unitary review, on appeal or in a prior state
postconviction proceeding.” 42 Pa.C.S. § 9544(b).
“It is well settled that when [] counsel files a Pa.R.A.P. 1925(b)
statement that fails to preserve any issues for appellate review, the PCRA
court may reinstate the petitioner’s direct appeal rights nunc pro tunc.”
Commonwealth v. Pulanco, 954 A.2d 639, 642 (Pa. Super. 2008).
However, in instances where counsel’s acts or omissions caused waiver of
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one or more, but not all, issues on direct appeal, the petitioner “must
establish that counsel’s ineffectiveness so undermined the truth-determining
process so as to render unreliable the adjudication of guilt or innocence.”
Id.
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
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). Failure to satisfy any prong of the
test will result in rejection of the appellant’s ineffective assistance of counsel
claim. Commonwealth v. Jones, 811 A.2d 994, 1002 (Pa. 2002).
As the PCRA court opined in its Rule 1925(a) Opinion:
Petitioner’s ineffectiveness claim is without arguable merit.
Police Officer Galiczynski testified that Officer Perry and he
responded to a report of a gunpoint robbery at 12:50 p.m. on
March 13, 2009. Both twelve–year veteran police officers were
in full uniform, driving a marked police vehicle. Approximately
two blocks away from the scene, Officer Galiczynski observed
[Appellant] riding a bicycle “very fast” in the opposite direction
of the robbery. [Appellant] was “sweating heavily” and
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appeared “startled” when he looked in the direction of the
officers.
Officer Galiczynski and Officer Perry made a U-turn and activated
their lights and sirens. [Appellant] dropped his bicycle in a
common driveway and ran behind a home. Officer Galiczynski
followed on foot and observed [Appellant] hide behind a vehicle.
Officer Galiczynski gave verbal commands. [Appellant] refused
to show his hands and again fled on foot. At that time, Officer
Galiczynski observed [Appellant] reach down to his waistband
area, pull out a handgun, drop it, and continue to run. After a
brief chase, Officer Galiczynski and Officer Perry apprehended
[Appellant] and recovered the .380 semi-automatic firearm that
Officer Galiczynski observed [Appellant] discard.
The trial court properly denied the motion to suppress the
firearm because the evidence established that the officers had
reasonable suspicion to pursue [Appellant] based on the totality
of the circumstances. Since the denial of the motion to suppress
was correct, trial counsel’s failure to preserve this issue did not
constitute ineffective assistance of counsel. Trial counsel will not
be deemed ineffective for failing to pursue a meritless issue.
Trial Court Opinion, filed 2/17/16, at 3, 5-6 (citations omitted). We agree
with the trial court’s assessment.
As noted by the PCRA court, the evidence shows that Appellant’s
underlying claim lacks arguable merit. Because Appellant failed to prove his
underlying claim is of arguable merit, Appellant’s ineffectiveness claim fails.
The record supports the PCRA court’s findings and its Order is
otherwise free of legal error. Accordingly, we affirm.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/6/2017
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