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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
SIDNEY BURGESS, :
:
Appellant : No. 1700 EDA 2016
Appeal from the PCRA Order May 27, 2016
In the Court of Common Pleas of Philadelphia County
Criminal Division at No.: CP-51-CR-0004901-2010
BEFORE: OTT, J., DUBOW, J., and STEVENS, P.J.E.*
MEMORANDUM BY DUBOW, J.: FILED JULY 14, 2017
Appellant, Sidney Burgess, appeals from the May 27, 2016 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 vacate the Order of the PCRA court,
vacate the Judgment of Sentence, and remand for resentencing consistent
with Alleyne v. United States, 133 S.Ct. 2151 (U.S. 2013).
On December 2, 2010, a jury convicted Appellant of Possession of a
Controlled Substance with Intent to Deliver (“PWID”), Criminal Conspiracy,
and Possessing Instruments of Crime (“PIC”).1 On February 17, 2011, the
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*
Former Justice specially assigned to the Superior Court.
1
35 P.S. § 780-113(a)(30), 18 Pa.C.S. § 903, and 18 Pa.C.S. § 907,
respectively.
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trial court sentenced Appellant to an aggregate term of 5 to 10 years’
imprisonment.2 The trial court applied the mandatory minimum sentencing
provision set forth in 42 Pa.C.S. § 9712.1 (“Sentences for certain drug
offenses committed with firearms”). This Court affirmed Appellant’s
Judgment of Sentence, Commonwealth v. Burgess, No. 687 EDA 2011
(Pa. Super. filed April 12, 2013), and our Supreme Court denied allowance
of appeal. Commonwealth v. Burgess, No. 264 EAL 2013 (Pa. filed
August 23, 2013). Appellant did not seek review by the U.S. Supreme
Court. Appellant’s Judgment of Sentence, therefore, became final on
November 21, 2013. See 42 Pa.C.S. § 9545(b)(3); U.S. Sup. Ct. R. 13.
Appellant filed the instant pro se PCRA Petition, his first, on April 22,
2014, raising, inter alia, an Alleyne claim.3 The PCRA court appointed
counsel, and counsel filed an Amended PCRA Petition on September 25,
2014.
On April 25, 2016, the PCRA court filed a notice of its intent to dismiss
Appellant’s PCRA Petition without a hearing pursuant to Pa.R.Crim.P. 907.
On May 27, 2016, the PCRA court denied the Petition.
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2
The trial court imposed no further penalty on the Criminal Conspiracy and
PIC convictions.
3
In Alleyne, the U.S. Supreme Court held that, other than the fact of a
prior conviction, any fact that increases the penalty for a crime beyond the
prescribed statutory minimum must be submitted to a jury and proved
beyond a reasonable doubt. Alleyne v. United States, 133 S.Ct. 2151,
2160-61 (U.S. 2013).
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Appellant filed a timely Notice of Appeal on June 1, 2016. Both
Appellant and the PCRA court complied with Pa.R.A.P. 1925.
Appellant presents three issues for our review:
1. Did the [l]ower [c]ourt err in failing to find counsel ineffective
for failing to object to and pursue on appeal the appearance of
judicial bias that tainted the jury in the trial?
2. Did the [l]ower [c]ourt err in failing to find that counsel was
ineffective for failing to raise the issue of the mandatory
sentences that the Appellant was subject to being
unconstitutional at trial or on appeal?
3. Did the [l]ower [c]ourt err in dismissing the PCRA Petition
without holding an evidentiary hearing to determine counsel's
ineffectiveness?
Appellant’s Brief at 9.
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
free of legal error. Commonwealth v. Fears, 86 A.3d 795, 803 (Pa.
2014). 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).
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A PCRA petitioner is not automatically entitled to an evidentiary
hearing. Commonwealth v. Miller, 102 A.3d 988, 992 (Pa. Super. 2014).
The PCRA court may decline to hold a hearing if the petitioner’s claim is
patently frivolous and has no support either in the record or in other
evidence. Id. The reviewing court on appeal must examine each issue
raised in the PCRA petition in light of the record before it in order to
determine if the PCRA court erred in its determination that there were no
genuine issues of material fact in controversy and in denying relief without
conducting an evidentiary hearing. Id.; see also Commonwealth v.
Roney, 79 A.3d 595, 604 (Pa. 2013) (applying abuse of discretion standard
to review of PCRA court’s denial of petition without a hearing).
In his first two issues, Appellant avers that he received ineffective
assistance of trial counsel. The law presumes counsel has rendered effective
assistance. Commonwealth v. Rivera, 10 A.3d 1276, 1279 (Pa. Super.
2010). “[T]he 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 proceeding would have been different.” Commonwealth
v. Fulton, 830 A.2d 567, 572 (Pa. 2003). Failure to satisfy any prong of the
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test will result in rejection of the appellant’s ineffective assistance of counsel
claim. Commonwealth v. Jones, 811 A.2d 994, 1002 (Pa. 2002).
Appellant first contends the court made two comments in front of the
jury that “demonstrated a judicial bias[,]” and trial counsel was ineffective
for failing to object, to move for a mistrial, or to seek the trial judge’s
recusal. Appellant’s Brief at 17.
The two comments are as follows: (1) after defense counsel repeatedly
asked whether the police checked certain evidence for fingerprints and the
officer repeatedly responded that checking that type of evidence was not
proper police procedure, the trial court interjected “it’s not police procedure.
We’re not the FBI,” at which point defense counsel moved on to a different
line of questioning; and (2) after defense counsel repeatedly asked the same
officer whether, after Appellant told him that the drug money belonged to
him, the officer obtained that same confession in a written statement, the
trial court replied to the Commonwealth’s objection by stating that “he made
the statement.” N.T., 11/30/10, at 157-61.
“A party seeking recusal bears the burden of producing evidence to
establish bias, prejudice, or unfairness[,] which raises a substantial doubt as
to the jurist’s ability to preside impartially.” Commonwealth v. Watkins,
108 A.3d 692, 734 (Pa. 2014) (citations omitted). “If the appellate court
determines that the party alleging judicial bias received a fair trial, then the
allegation of judicial bias is not borne out.” Commonwealth v. Travaglia,
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661 A.2d 352, 367 (Pa. 1995). “[S]imply because a judge rules against a
defendant does not establish any bias on the part of the judge against that
defendant.” Id.
In rejecting this claim, the PCRA court opined that the trial court’s
statements attempted to move the trial along by cutting off defense
counsel’s repetitive questioning, and that the statements did not
demonstrate judicial bias. PCRA Court Opinion, filed 11/30/16, at 4-8. We
agree with the PCRA court’s analysis.
The PCRA court’s Opinion appropriately addressed this allegation of
ineffectiveness. It is axiomatic that counsel cannot be ineffective for failing
to raise a meritless issue. Fears, supra at 804. The record supports the
PCRA court’s determinations, and the PCRA court’s decision is free of legal
error. Thus, Appellant fails to satisfy the first prong of the ineffectiveness
test, and he is not entitled to relief on this issue.
In his second issue, Appellant contends trial counsel was ineffective for
failing to challenge the legality of his sentence. We need not address
Appellant’s specific arguments because we are required to vacate Appellant’s
Judgment of Sentence on grounds not raised by Appellant.4 See
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4
Appellant stated in his Brief “[w]e are, in effect, challenging counsel’s
ineffectiveness rather than the illegal sentence itself.” Appellant’s Brief at
22. Appellant did the opposite in the lower court: Appellant did not present
an ineffectiveness claim in his pro se PCRA Petition or counsel’s Amended
PCRA Petition, he instead chose to challenge only the legality of sentence.
(Footnote Continued Next Page)
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Commonwealth v. Watley, 81 A.3d 108, 118 (Pa. Super. 2013) (en banc)
(“Legality of sentence questions are not waivable and may be raised sua
sponte by this Court.”).
The certified record indicates that in 2011, the trial court imposed a
mandatory minimum sentence pursuant to 42 Pa.C.S. § 9712.1 for
Appellant’s PWID conviction. This Court affirmed the Judgment of Sentence
on direct appeal. While Appellant’s Petition for Allowance of Appeal was
pending in our Supreme Court, the United States Supreme Court decided
Alleyne v. United States, __ U.S. __, 133 S.Ct. 2151, 186 L.Ed.2d 314
(2013), holding that any fact increasing the mandatory minimum sentence
for a crime is considered an element of the crime to be submitted to the
fact-finder and found beyond a reasonable doubt. In Commonwealth v.
Newman, 99 A.3d 86, 98 (Pa. Super. 2014) (en banc), appeal denied, 121
A.3d 496 (Pa. 2015), this Court held that pursuant to Alleyne, 42 Pa.C.S. §
9712.1 is no longer constitutional.
Generally, an Alleyne claim does not apply retroactively to cases on
collateral review. See Commonwealth v. Washington, 142 A.3d 810, 820
(Pa. 2016). However, in Commonwealth v. Ruiz, 131 A.3d 54 (Pa. Super
_______________________
(Footnote Continued)
Thus, Appellant waived this ineffectiveness claim. See 42 Pa.C.S. §
9544(b); see also Commonwealth v. Brown, 767 A.2d 576, 584-85 (Pa.
Super. 2001). Nevertheless, Appellant’s waiver does not preclude our
review because this Court may raise this issue sua sponte. See Watley,
supra at 118.
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2015), this Court recognized that an Alleyne claim constitutes a non-
waivable challenge to the legality of a sentence and may be raised for the
first time in a timely-filed PCRA petition if the petitioner’s judgment of
sentence was not final when Alleyne was decided. See Ruiz, supra at 60–
61.
Here, Appellant’s Petition for Allowance of Appeal with the
Pennsylvania Supreme Court was not denied until August 23, 2013.
Alleyne was decided on June 17, 2013. Because Appellant’s Judgment of
Sentence was not final when Alleyne was decided and he timely filed this
PCRA Petition, Alleyne is applicable to Appellant’s case retroactively. See
Ruiz, supra at 60–61. Thus, Appellant is entitled to resentencing without
consideration of the mandatory minimum sentencing provision set forth in
42 Pa.C.S. § 9712.1.5
Order vacated. Judgment of sentence vacated. Case remanded for
resentencing consistent with this memorandum. Jurisdiction relinquished.
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5
In his third issue, Appellant contends that the PCRA court erred in
dismissing his PCRA Petition without conducting an evidentiary hearing.
Based on our discussion supra, we conclude that the PCRA court did not
abuse its discretion in dismissing Appellant’s first two ineffectiveness claims
without an evidentiary hearing because they presented no genuine issues of
material fact and lacked merit. See Miller, 102 A.3d at 992.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/14/2017
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Com. v. Burgess, S.
Combined Opinion