J-S95011-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
DEMETRIOUS WELLS
Appellant No. 316 EDA 2016
Appeal from the PCRA Order Dated January 5, 2016
In the Court of Common Pleas of Philadelphia County
Criminal Division at No: CP-51-CR-0006559-2008
BEFORE: STABILE, MOULTON, and MUSMANNO, JJ.
MEMORANDUM BY STABILE, J.: FILED MARCH 28, 2017
Appellant Demetrious Wells appeals from the January 5, 2016 order of
the Court of Common Pleas of Philadelphia County (“PCRA court”), which
denied without a hearing his request for collateral relief under the Post
Conviction Relief Act (the “Act”), 42 Pa.C.S.A. §§ 9541-46. Upon review, we
affirm.
The facts and procedural history of this case are undisputed. As
recounted by a prior panel of this Court:
On August 31, 2006, in the early morning hours, the body
of [L.H.], a U.S. Army veteran, was found lying in the street at
31st and Nevada Streets [in Philadelphia]. [L.H.] had been shot
numerous times. An investigation began immediately and
revealed that in the hours prior to the shooting, [L.H.] had
visited his mother and asked for $10.00 to buy something to eat.
She did not give him any money and told him that he should use
his own funds. After speaking to his mother, [the victim] rode
his bike back to his neighborhood where he went to [a] MAC
machine and withdrew $20.00. [L.H.] was killed soon
thereafter. When police found him, the $20.00 was missing.
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The investigation went cold and remained so for some
time. In December of 2006, police received a letter outlining
who and how the crime was committed. Although the letter was
signed, police ascertained that the letter had been written by
someone other than the person who allegedly signed it.
Fingerprint analysis eventually led police to Mark Clark-Allen who
admitted having prepared the letter.
Mr. Clark-Allen testified that he and [Appellant] were
roommates on the day of the murder and that he was in bed
when he heard shots outside his residence. Approximately ten
or fifteen minutes after he heard the gunshots, he heard the
voices of [Appellant] and two other males coming from the first
floor of the residence. [Appellant] and the males were
discussing the robbery of [L.H.] and Clark-Allen heard them
state that they had just robbed [L.H.] of $20.00 and a gun he
was licensed to carry while [L.H.] stood outside of a take-out
Chinese restaurant waiting for food he had ordered.
The next morning, [Appellant] told Clark-Allen that
following the robbery, [L.H.] followed him and the other two
males home. Then, when [L.H.] knocked on the door, and asked
that the gun be returned because it did not belong to him,
[Appellant] related that he walked [L.H.] around the corner and
shot him after [L.H.] charged at him.
[Appellant] was arrested on January 21, 2008, following a
domestic dispute unrelated to the instant matter. Following
[Appellant’s] arrest, the police ascertained that [Appellant] was
wanted for murder and, consequently, [Appellant] was
transported to the Homicide Division of the Philadelphia Police
Department where, after waiving his rights, he was interviewed
and gave a statement concerning the incident. In that
statement, [Appellant] claimed that he shot [L.H.] with [L.H.’s]
gun after getting ‘the jump’ on [L.H.] and stripping him of his
weapon.
Ballistic examination of evidence gathered at the scene
and evidence taken from [L.H.]’s residence demonstrated that
[Appellant] shot and killed [L.H.] with [L.H.’s] gun.
An autopsy of [L.H.]’s body revealed that he died as a
result of having been shot five times including in his head at
close range. Some of the wounds he suffered were to his hand
and arm thereby demonstrating that he had raised them in a
futile effort to block the bullets. In addition, it was discerned that
he was shot while trying to flee. The manner of death was
homicide.
Commonwealth v. Wells, No. 1659 EDA 2009, unpublished memorandum,
at 1-3 (Pa. Super. filed October 19, 2010) (citing Trial Court Opinion,
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2/1/10, at 1-3), appeal denied, 19 A.3d 1051 (Pa. 2011). A jury convicted
Appellant of first degree murder and possessing instruments of crime
(“PIC”). The trial court sentenced Appellant to life imprisonment on the
charge of murder and a concurrent two-and-one-half to five-year term of
imprisonment for the PIC conviction. Following the trial court’s denial of his
post-sentence motion, Appellant timely appealed to this Court. On appeal,
we affirmed the judgment of sentence. On March 30, 2011, our Supreme
Court denied Appellant’s petition for allowance of appeal.
On March 28, 2012, Appellant pro se filed the instant PCRA petition.
The PCRA court appointed counsel, who, on September 8, 2014, filed an
amended petition, raising ineffective assistance of counsel claims. In
particular, Appellant argued that his appellate counsel was ineffective for
failing to raise the denial of his suppression motion on direct appeal. On
January 5, 2016, following a Pa.R.Crim.P. 907 notice, the PCRA court denied
Appellant relief for want of merit. Appellant timely appealed to this Court.
On appeal,1 Appellant raises a single issue for our review:
Did the Honorable PCRA [c]ourt err when it dismissed
[Appellant’s] PCRA petition without holding a hearing where
[Appellant] properly pled and would have been able to prove
that he was entitled to relief?
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1
“In reviewing the denial of PCRA relief, we examine whether the PCRA
court’s determination ‘is supported by the record and free of legal error.’”
Commonwealth v. Fears, 86 A.3d 795, 803 (Pa. 2014) (quoting
Commonwealth v. Rainey, 928 A.2d 215, 223 (Pa. 2007)).
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Appellant’s Brief at 3.
Appellant argues that his appellate counsel was ineffective for failing to
pursue the denial of suppression of his statements on direct appeal.
Appellant asserts that the police obtained the statements in violation of his
right against self-incrimination.
A PCRA petitioner is entitled to relief if he pleads and proves that prior
counsel rendered ineffective assistance of counsel. 42 Pa.C.S.A.
§ 9543(a)(2)(ii). “To prevail on an [ineffectiveness] claim, a PCRA petitioner
must plead and prove by a preponderance of the evidence that (1) the
underlying legal claim has arguable merit; (2) counsel had no reasonable
basis for acting or failing to act; and (3) the petitioner suffered resulting
prejudice.” Commonwealth v. Reyes-Rodriguez, 111 A.3d 775, 780 (Pa.
Super. 2015) (en banc). “A petitioner must prove all three factors of the
“Pierce[2] test,” or the claim fails.” Id.
Instantly, despite Appellant’s argument that his ineffectiveness claim
meets the arguable merit prong of the Pierce test, his brief is bereft of any
discussion or argument with respect to the reasonable basis and prejudice
prongs. As we recently emphasized, “[a] petitioner must prove all three
factors of the Pierce test, or the [ineffectiveness] claim fails. In addition,
on appeal, a petitioner must adequately discuss all three factors of the
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2
Commonwealth v. Pierce, 527 A.2d 973 (Pa. 1987).
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Pierce test, or the appellate court will reject the claim.” Reyes-Rodriguez,
111 A.3d at 780 (emphasis added) (citing Fears, 86 A.3d at 804)). Thus,
given Appellant’s failure to discuss the reasonable basis and prejudice
prongs on appeal, we must reject his ineffectiveness claim.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/28/2017
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