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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
TYRIQUE I. JACKSON
Appellant No. 3708 EDA 2015
Appeal from the PCRA Order dated November 19, 2015
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0009821-2007
BEFORE: DUBOW, J., SOLANO, J., and PLATT, J.*
MEMORANDUM BY SOLANO, J.: FILED MARCH 28, 2017
Appellant, Tyrique I. Jackson, appeals pro se from the order dismissing
his petition filed pursuant to the Post-Conviction Relief Act (PCRA), 42
Pa.C.S. §§ 9541–9546. Upon review, we affirm on the basis of the PCRA
court’s opinion.
On November 5, 2008, a jury convicted Appellant of third-degree
murder. We previously summarized the facts underlying Appellant’s
conviction as follows:
On April 22, 2007, Ryan Haywood, Cedric Dowtin, David Alston,
and Sterling Almond all met on East Bringhurst Street in
Philadelphia so that Mr. Haywood could videotape Mr. Dowtin
perform a rap. Mr. Dowtin’s rap was about a dispute he was
having with Appellant. While Mr. Dowtin was rapping about
Appellant, a small crowd formed to watch his performance.
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
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Appellant then arrived on the scene with a large group of people.
Appellant called out to Mr. Dowtin, asking him if he was talking
about Appellant in his rap. Then, Appellant pulled out a gun and
fired a series of shots in the direction of Mr. Dowtin and the
crowd that was watching him perform. Mr. Alston and another
man, who was part of the crowd, Terrell Martin, were both shot
but were able to run to safety. Mr. Almond, however, was shot
through his left arm, with the bullet traveling through his chest.
Mr. Almond was transported to the hospital where he was
pronounced dead.
Commonwealth v. Jackson, 4 A.3d 201 (Pa. Super. 2010) (unpublished
memorandum at 1-2).
On December 19, 2008, the trial court sentenced Appellant to 20 –
40 years’ incarceration. Appellant filed a direct appeal and this Court
affirmed his judgment of sentence. See id. Appellant then petitioned the
Supreme Court for allowance of appeal. The Supreme Court denied this
request on November 27, 2012. Appellant did not seek review with the
United States Supreme Court, such that his conviction became final on
February 25, 2013. U.S. S.Ct. Rule 13; 42 Pa.C.S. § 9545(b)(3).
On April 2, 2013, Appellant filed the instant PCRA petition pro se. On
December 19, 2013, the PCRA court appointed counsel, Attorney O’Hanlon,
to represent Appellant. Attorney O’Hanlon filed a “no merit” letter pursuant
to Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988), and sought
to withdraw his appearance on February 20, 2014. On May 27, 2014, the
PCRA court issued notice of its intent to dismiss the petition pursuant to
Pennsylvania Rule of Criminal Procedure 907. On May 29, 2014, Appellant
hired counsel, Attorney Cooley, who substituted his appearance on
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Appellant’s behalf and requested additional time to review Appellant’s case.
The PCRA court granted Attorney Cooley’s request. However, Attorney
Cooley ultimately petitioned to withdraw his appearance, which the PCRA
court granted on August 18, 2015. The PCRA court once again appointed
Attorney O’Hanlon to represent Appellant.
On October 13, 2015, the PCRA court entered an order noting that
counsel had filed a “Finley letter” and advising of its Rule 907 Notice to
dismiss the PCRA petition without a hearing. Appellant filed a pro se
response on October 28, 2015. On November 19, 2015, “after again
reviewing the no-merit letter filed by Mr. O’Hanlon and all filings,” the PCRA
court issued the order dismissing Appellant’s PCRA petition and granting
Attorney O’Hanlon’s request to withdraw his appearance. Appellant’s pro se
appeal followed.
Appellant raises ten issues for our review:
[1.] Whether the PCRA court abused its discretion in
dismissing Petitioner’s petition for post-conviction relief
without first affording [P]etition[er] the opportunity to
correct and amend his petition and proceed pro se?
[2.] Whether the lower court erred in dismissing
Petitioner’s claim that trial counsel was ineffective for
failing to investigate, interview, and present eyewitness
Rodney Stevens at trial?
[3.] Whether the lower court erred in dismissing
Petitioner’s claim that trial counsel’s failure to object to the
trial court’s jury instruction on third degree murder and
request a supplemental “beyond a reasonable doubt”
charge was ineffective?
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[4.] Whether the lower court erred in dismissing
Petitioner’s claim that trial counsel’s failure to present the
testimony of character witnesses who were available to
establish Petitioner’s reputation for peacefulness and non-
violence deprived Petitioner of effective assistance of
counsel?
[5.] Whether the lower court erred in dismissing
Petitioner’s claim that trial counsel was ineffective for
failing to object to the prosecutor’s improper remarks
during closing arguments and move for a mistrial, or in the
alternative request a cautionary instruction?
[6.] Whether the lower court erred in dismissing
Petitioner’s claim that appellate counsel was ineffective for
failing to argue (on direct appeal) how the trial court’s
error prejudiced the Petitioner?
[7.] Whether the lower court erred in dismissing
Petitioner’s claim that appellate counsel was ineffective for
failing to challenge the legal sufficiency of the verdict?
[8.] Whether the lower court erred in dismissing
Petitioner’s claim that trial counsel was ineffective for
failing to request a charge on Petitioner’s theory of
defense?
[9.] Whether the lower court erred in dismissing
Petitioner’s claim that trial counsel’s failure to request an
instruction on the limited purpose for which the jury could
consider evidence that Petitioner was a violent and
dangerous man?
[10.] Whether the lower court erred in dismissing
Petitioner’s claim that trial counsel’s failure to object to the
trial court requiring substantial doubt in order for an
acquittal was ineffective?
Appellant’s Brief at 4.
Preliminarily, we recognize there is no absolute right to an evidentiary
hearing on a PCRA petition because it is within the PCRA court’s discretion to
refuse to hold a hearing if the petitioner’s allegations are either “patently
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frivolous” or have no evidentiary or record support. See Commonwealth
v. Khalifah, 852 A.2d 1238, 1239–40 (Pa. Super. 2004). We review a
denial of a post-conviction petition to determine whether the record supports
the PCRA court’s findings and whether its order is otherwise free of legal
error. See Commonwealth v. Faulk, 21 A.3d 1196, 1199 (Pa. Super.
2011). The PCRA court’s findings will not be disturbed unless there is no
support for the findings in the certified record. Commonwealth v. Carr,
768 A.2d 1164, 1166 (Pa. Super. 2001).
To be eligible for relief pursuant to the PCRA, an appellant must
establish, among other things, 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). He must also establish that the issues raised in the PCRA
petition have not been previously litigated or waived. See id. at §
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 post-conviction proceeding.” Id. at § 9544(b).
Here, Appellant, in nine of his ten issues, asserts that he received
ineffective assistance of counsel. Counsel is presumed effective, and
Appellant bears the burden to prove otherwise. The test for ineffective
assistance of counsel is the same under both the Federal and Pennsylvania
Constitutions. See Strickland v. Washington, 466 U.S. 668, 104 S.Ct.
2052, 80 L.Ed.2d 674 (1984); Commonwealth v. Jones, 815 A.2d 598,
611 (Pa. 2002). Appellant must demonstrate: (1) his underlying claim is of
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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 proceedings would have been different. See
Commonwealth v. Pierce, 786 A.2d 203, 213 (Pa. 2001), abrogated on
other grounds by Commonwealth v. Grant, 813 A.2d 726 (Pa. 2002). A
failure to satisfy any prong of the test for ineffectiveness will require
rejection of the claim. See Jones, supra at 611.
Upon review of the record, we conclude that the Honorable Jeffrey P.
Minehart, sitting as the PCRA court, has authored an opinion which
accurately and adequately addresses each of the issues raised by Appellant
on appeal. Judge Minehart’s April 12, 2016 opinion cites the record and
expands upon the aforementioned prevailing legal authority in reviewing
Appellant’s claims and explaining why they lack merit. Accordingly, we
adopt the PCRA court’s opinion as our own. The parties shall attach a copy
of the PCRA court’s opinion in any further proceedings.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/28/2017
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