J-S85018-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
KEITH DEVINE
Appellant No. 3689 EDA 2015
Appeal from the PCRA Order December 1, 2015
in the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0014318-2007
BEFORE: PANELLA, J., RANSOM, J., and MUSMANNO, J.
MEMORANDUM BY RANSOM, J.: FILED JANUARY 10, 2017
Appellant, Keith Devine, pro se appeals from the December 1, 2015
order dismissing his petition filed under the Post Conviction Relief Act
(PCRA), 42 Pa.C.S. §§ 9541-9546. We affirm.
On April 29, 2009, the Honorable Jeffrey P. Minehart, sitting as trial
court without a jury, found Appellant guilty of third degree murder, criminal
conspiracy, and two counts of aggravated assault.1 On June 2, 2010,2
Appellant received concurrent sentences of twelve and one-half to twenty-
five years of incarceration on the murder charge, ten to twenty years of
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1
18 Pa.C.S. §§ 2502(c), 903(a)(1), and 2702(a), respectively.
2
The PCRA court’s opinion misstates the date of Appellant’s sentencing
hearing. PCRA Court Opinion, 3/1/16, at 1.
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incarceration on the conspiracy, and two sentences of ten to twenty years of
incarceration for the aggravated assault charges. See Notes of Testimony
(N.T.), 6/2/10, at 32-33. Appellant was given credit for time served. Id. at
34.
Thereafter, Appellant filed a post sentence motion, which was denied.
On August 5, 2011, this Court affirmed Appellant’s judgement of sentence
and on May 1, 2012, our Supreme Court denied Appellant’s petition for
allowance of appeal. Commonwealth v. Devine, 26 A.3d 1139 (Pa. Super
2011), appeal denied, 42 A.3d 1059 (Pa. 2012).
On June 6, 2012, Appellant timely filed a pro se petition seeking PCRA
relief. Counsel was appointed and subsequently submitted a no-merit letter
pursuant to Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988),
and a motion to withdraw. Appellant filed a series of pleadings in response
to PCRA counsel’s Finley letter. On October 26, 2015, the court issued a
Pa.R.Crim.P. 907 notice of its intent to dismiss Appellant’s petition without a
hearing, citing that Appellant’s counsel found his petition was without merit.
Appellant timely filed a response. On December 1, 2015, the court
dismissed Appellant’s petition.
Appellant timely appealed pro se and filed a court-ordered Pa.R.A.P.
1925(b) statement. The PCRA court issued a responsive opinion.
Appellant raises the following issues for our review:
1. THE POST CONVICTION [C]OURT ERRED WHEN IT DENIED
THE [APPELLANT] RELIEF PURSUANT TO HIS AMENDED PCRA
PETITION, BY ERRONEOUSLY RULING IT “UNTIMELY” PURSUANT
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TO [§] 9545(B), AND BY WHOLESALE ADOPTION OF PCRA
[C]OUNSEL’S “NO MERIT LETTER” IN LIEU OF FILING A POST
CONVICTION RELIEF ACT OPINION, WHICH WAS A CLEAR
ABDICATION OF THE [C]OURT’S DUTY; AND WHERE THE
[APPELLANT] WELL PLED, AND WOULD HAVE BEEN ABLE TO
PROVE, THAT HE WAS ENTITLED TO SUBSTANTIVE RELIEF IN
THE FORM OF A NEW TRIAL AS THE RESULT OF:
2. THE PETITIONER WAS DENIED HIS RIGHT TO EFFECTIVE
ASSISTANCE OF COUNSEL UNDER BOTH ARTICLE I § 9 OF THE
PENNSYLVANIA CONSTITUTION AND THE SIXTH AMENDMENT
UNDER THE UNITED STATES CONSTITUTION FOR COUNSEL’S
FAILURE TO OBJECT TO THE [ADMISSIBILITY] OF UNAVAILABLE
WITNESS, KENDALL STERNS, [INADMISSIBLE] PRELIMINARY
HEARING NOTES OF TESTIMONY INTRODUCED AT PETITIONER’S
TRIAL.
3. THE PETITIONER WAS DENIED HIS RIGHT TO EFFECTIVE
ASSISTANCE OF COUNSEL UNDER BOTH ARTICLE I § 9 OF THE
PENNSYLVANIA CONSTITUTION AND THE SIXTH AMENDMENT
UNDER THE UNITED STATES CONSTITUTION WHEN TRIAL
COUNSEL “STIPULATED” TO THE MEDICAL RECORDS OF THE
GUN SHOT VICTIMS DEPRIVING PETITIONER OF HIS RIGHT TO
CONFRONT WITNESSES UNDER THE COMPULSORY PROCESS.
4. THE PETITIONER WAS DENIED HIS RIGHT TO EFFECTIVE
ASSISTANCE OF COUNSEL UNDER BOTH ARTICLE I § 9 OF THE
PENNSYLVANIA CONSTITUTION AND THE UNITED STATES
CONSTITUTION FOR TRIAL COUNSEL’S FAILURE TO REQUEST A
SEVERANCE MOTION UNDER THE EXCEPTION ENUMERATED IN
PA.CRIM.P.[]579.
5. THE PETITIONER WAS DENIED HIS RIGHT TO EFFECTIVE
ASSISTANCE OF COUNSEL UNDER BOTH ARTICLE I § 9 OF THE
PENNSYLVANIA CONSTITUTION AND THE SIXTH AMENDMENT
UNDER THE UNITED STATES CONSTITUTION FOR TRIAL
COUNSEL’S FAILURE TO OBJECT TO THE INTRODUCTION OF
NON-TESTIFYING CO-DEFENDANT REDACTED STATEMENTS.
6. THE PETITIONER WAS DENIED HIS RIGHT TO EFFECTIVE
ASSISTANCE OF COUNSEL UNDER BOTH ARTICLE I § 9 OF THE
PENNSYLVANIA CONSTITUTION AND THE SIXTH AMENDMENT
UNDER THE UNITED STATES CONSTITUTION FOR TRIAL
COUNSEL’S FAILURE TO OBJECT AND MOVE FOR A MISTRIAL,
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WHEREIN THE COMMONWEALTH SOUGHT TO INTRODUCE
IRRELEVANT TESTIMONIAL EVIDENCE REGARDING [A] PRIOR
BAD ACT THAT ALSO CONSTITUTED A BRADY VIOLATION.
7. PETITIONER WAS DENIED HIS RIGHT TO EFFECTIVE
ASSISTANCE OF COUNSEL UNDER BOTH ARTICLE I § 9 OF THE
PENNSYLVANIA CONSTITUTION AND THE SIXTH AMENDMENT
UNDER THE UNITED STATES CONSTITUTION FOR COUNSEL’S
FAILURE TO OBJECT AND SUPPRESS THE STATEMENT OF
OFFICER FLANNERY COUPLED WITH COUNSEL’S
INEFFECTIVENESS FOR FAILING TO OBJECT TO THE
PROSECUTOR’S UNTIMELY DISCLOSURE OF SAID STATEMENT.
8. THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT
RENDERED A GUILTY VERDICT OF THE THIRD DEGREE IS
DEFINED BY EXCLUSION[] AT TITLE 18[]PA.C.S.A. SECTION
2502.
9. PETITIONER WAS DENIED HIS SIXTH AMENDMENT RIGHT TO
EFFECTIVE ASSISTANCE OF COUNSEL WHEN COUNSEL FAILED
TO OBJECT TO THE SPEEDY TRIAL AND DUE PROCESS
VIOLATION WHEN THERE WAS AN UNNECESSARY DELAY IN
SENTENCE IN VIOLATION OF PA.R.CRIM.P.[]704.
Appellant’s Brief at vi-vii (some capitalization added for consistency).
This Court’s standard of review regarding an order denying a petition
under the PCRA is whether the determination of the PCRA court is supported
by the evidence of record and is free of legal error. See Commonwealth v.
Ragan, 923 A.2d 1169, 1170 (Pa. 2007). We afford the court’s factual
findings deference unless there is no support for them in the certified record.
Commonwealth v. Brown, 48 A.3d 1275, 1277 (Pa. Super. 2012) (citing
Commonwealth v. Anderson, 995 A.2d 1184, 1189 (Pa. Super. 2010)).
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On appeal, Appellant raises nine issues for our review, the majority of
which allege ineffective assistance of trial counsel.3 We have reviewed the
certified record, the briefs of the parties, the applicable law, and the well-
reasoned opinion authored by the Honorable Jeffrey P. Minehart of the Court
of Common Pleas of Philadelphia County, filed March 1, 2016. We conclude
that Judge Minehart’s comprehensive opinion is dispositive of the issues
presented in this appeal. Accordingly, we adopt the opinion as our own for
purposes of further appellate review and affirm the order denying Appellant’s
PCRA petition on that basis.
Commonwealth’s Application for Relief granted; Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/10/2017
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3
On October 17, 2016, the Commonwealth of Pennsylvania untimely filed a
brief as well as an application for relief asking this Court to accept its brief as
timely filed.
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Circulated 12/19/2016 03:04 PM