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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
TYREE MILES, :
:
Appellant : No. 1599 EDA 2018
Appeal from the PCRA Order May 11, 2018
in the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0010209-2009,
CP-51-CR-0013007-2009, CP-51-CR-0013008-2009
BEFORE: BENDER, P.J.E., OLSON, J., and MUSMANNO, J.
MEMORANDUM BY MUSMANNO, J.: FILED APRIL 16, 2019
Tyree Miles (“Miles”) appeals from the Order dismissing his Petition filed
pursuant to the Post Conviction Relief Act (“PCRA”). See 42 Pa.C.S.A.
§§ 9541-9546. We affirm.
On August 5, 2010, a jury found Miles guilty of rape and related crimes,
following his attacks on three women.1 Following the completion of a pre-
sentence investigation, the trial court sentenced Miles to an aggregate term
of 36 to 72 years in prison.
This Court affirmed Miles’s judgment of sentence on March 9, 2012. See
Commonwealth v. Miles, 47 A.3d 1238 (Pa. Super. 2012) (unpublished
memorandum). On June 17, 2013, Miles filed his first pro se PCRA Petition,
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1 Miles was originally charged at three separate dockets, which were
consolidated for trial.
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and the PCRA court appointed Miles counsel. Miles’s PCRA counsel filed an
Amended Petition, asserting that Miles’s appellate counsel had abandoned
Miles by failing to file a petition for allowance of appeal with the Pennsylvania
Supreme Court, after indicating he would to do so. On July 20, 2015, the
PCRA court entered an Order granting Miles’s Petition, and reinstating his right
to file a petition for allowance of appeal, nunc pro tunc. Miles subsequently
filed a nunc pro tunc Petition for allowance of appeal, which our Supreme
Court denied on December 29, 2015. See Commonwealth v. Miles, 129
A.3d 1242 (Pa. 2015).
Miles filed the instant pro se PCRA Petition on February 5, 2016, and a
pro se Amended Petition on May 26, 2016. The PCRA court appointed Miles
counsel, who filed an Amended Petition on his behalf. Following appropriate
Notice pursuant to Pa.R.Crim.P. 907, the PCRA court dismissed Miles’s Petition
without a hearing. Miles filed a timely Notice of Appeal and a court-ordered
Pa.R.A.P. 1925(b) Concise Statement of matters complained of on appeal.
Miles now raises the following questions for our review:
I. Whether the [PCRA] [c]ourt erred in failing to grant an
evidentiary hearing?
II. Whether the [PCRA] [c]ourt erred in failing to grant [Miles’s]
PCRA Petition in whole or in part?
Brief for Appellant at 8.
“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
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by the evidence of record and is free of legal error.” Commonwealth v.
Rizvi, 166 A.3d 344, 347 (Pa. Super. 2017). Additionally, there is no absolute
right to an evidentiary hearing, and a PCRA court has discretion to deny a
petition without a hearing “if the PCRA court determines that the petitioner’s
claim is patently frivolous and is without a trace of support in either the record
or from other evidence.” Commonwealth v. Hart, 911 A.2d 939, 941 (Pa.
Super. 2006). “To obtain reversal of a PCRA court’s decision to dismiss a
petition without a hearing, an appellant must show that he raised a genuine
issue of fact which, if resolved in his favor, would have entitled him to relief,
or that the court otherwise abused its discretion in denying a hearing.”
Commonwealth v. Hanible, 30 A.3d 426, 438 (Pa. 2011) (citation and
brackets omitted). Thus, when the PCRA court dismisses a petition without
an evidentiary hearing, we “examine each issue raised in the PCRA petition in
light of the certified 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.” Commonwealth v. Khalifah, 852 A.2d 1238, 1240 (Pa. Super.
2004).
We will address Miles’s claims together. In his first claim, Miles argues
that the PCRA court erred by denying his Petition without a hearing, because
he raised meritorious claims of ineffective assistance of his prior counsel. See
Brief for Appellant at 23-25. In his second claim, Miles challenges his trial
counsel’s effectiveness. See id. at 25-39.
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The PCRA permits relief when a conviction is the result of “[i]neffective
assistance of counsel which, in the circumstances of the particular case, so
undermined the truth-determining process that no reliable adjudication of
guilt or innocence could have taken place.” 42 Pa.C.S.A. § 9543(a)(2)(ii).
It is well-settled that counsel is presumed to have provided
effective representation unless the PCRA petitioner pleads and
proves all of the following: (1) the underlying claim is of arguable
merit; (2) counsel’s action or inaction lacked any objectively
reasonable basis designed to effectuate his client’s interest; and
(3) prejudice, to the effect that there was a reasonable probability
of a different outcome if not for counsel’s error.
Commonwealth v. Franklin, 990 A.2d 795, 797 (Pa. Super. 2010) (citations
omitted); see also Commonwealth v. Charleston, 94 A.3d 1012, 1019 (Pa.
Super. 2014) (stating that “[a] defendant raising a claim of ineffective
assistance of counsel is required to show actual prejudice; that is, that
counsel’s ineffectiveness was of such a magnitude that it could have
reasonably had an adverse effect on the outcome of the proceedings.”
(citations and some brackets omitted)). Additionally, “as to ineffectiveness
claims in particular, if the record reflects that the underlying issue is of no
arguable merit or no prejudice resulted, no evidentiary hearing is required.”
Commonwealth v. Baumhammers, 92 A.3d 708, 726-27 (Pa. 2014).
Miles identifies five arguments regarding the effectiveness of his trial
counsel, which we will address separately. In his first claim, Miles argues that
trial counsel was ineffective for failing to file a post-sentence motion
challenging the verdicts as against the weight of the evidence presented at
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trial. See Brief for Appellant at 26-29. Miles contends that the victims’
testimony was not credible, and identifies specific statements in each victim’s
testimony which Miles believes to be incredible.2 Id. at 27-28.
Here, Miles has failed to show that his underlying claim, a challenge to
the weight of the evidence, is of arguable merit. A successful challenge to the
weight of the evidence required Miles to establish that the evidence supporting
his conviction was “so tenuous, vague and uncertain that the verdict shocks
the conscience of the court.” Commonwealth v. Smith, 146 A.3d 257, 265
(Pa. Super. 2016) (citation omitted). “One of the least assailable reasons for
granting or denying a new trial is the lower court’s conviction that the verdict
was or was not against the weight of the evidence….” Commonwealth v.
Clay, 64 A.3d 1049, 1055 (Pa. 2013). Moreover, “[t]he weight of the evidence
is exclusively for the finder of fact[,] who is free to believe all, none or some
of the evidence and to determine the credibility of the witnesses.”
Commonwealth v. Talbert, 129 A.3d 536, 545 (Pa. Super. 2015) (citation
omitted).
The PCRA court reviewed the testimony presented at trial, and
concluded that “the testimony of each victim was both consistent and
compelling.” PCRA Court Opinion, 8/8/18, at 6, 8; see also id. at 6-8 (setting
forth the relevant testimony presented by each witness), 8 (explaining that
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2 Miles does not include specific citations to the trial transcripts in support of
his claim. See Pa.R.A.P. 2119(c).
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DNA samples from each victim were matched to Miles, further corroborating
the victims’ testimony). The trial court specifically found the victims’
testimony credible, see id. at 8, and we may not disturb such a finding, or re-
weigh the evidence on appeal. See Talbert, supra. Because the record
supports this credibility finding, we agree with the PCRA court’s determination
that Miles’s underlying claim lacks arguable merit. Additionally, Miles has not
established that there was a reasonable probability that the outcome of the
proceedings would have been different if counsel had filed a post-sentence
motion. See Franklin, 990 A.2d at 797; Charleston, supra. Therefore, we
cannot conclude that trial counsel was ineffective for failing to preserve a
challenge to the weight of the evidence.
In his second argument, Miles claims that trial counsel was ineffective
for failing to request a mistrial based on prosecutorial misconduct, thereby
waiving the issue for appeal. Brief for Appellant at 29, 31. Miles directs our
attention to the following statement, made by the prosecutor during closing
arguments:
[D]efense counsel[,] … in his opening statement[,] said there are
two sides to every story. The part he didn’t finish about that was
only one side is going to be right, only one side makes sense. He
said that you would hear the other side of this story. We heard
all the witnesses testify. There was no other side of the story.
Id. at 29 (citation omitted). Miles argues that the prosecutor’s remarks “were
so prejudicial and inflammatory that [Miles’s] right[] to a fair trial w[as]
compromised.” Id. at 31. Miles acknowledges, however, that trial counsel
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objected to the statement, and the trial court gave a cautionary instruction to
the jury.3 Id. at 29-30.
Miles correctly points out that this Court, on direct appeal, determined
that Miles had waived his argument for a new trial, based on prosecutorial
misconduct, by failing to request a mistrial after the trial court issued a
cautionary instruction. See Miles, 47 A.3d 1238 (unpublished memorandum
at 4). However, this Court also addressed the merits of the claim as follows:
A prosecutor’s comment concerning a defendant’s choice
not to testify is a violation of the defendant’s right against self-
incrimination. However, an improper remark by a prosecutor
concerning the failure to testify may be appropriate if it is in fair
response to the argument and comment of defense counsel. The
prosecution is permitted to respond to arguments the defense has
raised.
The defense in its opening statement stated, “There are two
sides to every story…. Not one.” By making that statement, the
defense informed the jury that they would be hearing two stories,
that of the prosecution and that of the defense. The prosecution
argued that the defense did not establish through evidence that
there was another side to the story. The prosecution’s statement
went to rebutting the defense’s opening statement and not to the
defendant’s decision not to testify, and therefore, it was not
improper.
Id. (unpublished memorandum at 4) (citations omitted). Because we agree
with this Court’s prior analysis of the merits of this issue, we conclude that
Miles’s underlying claim lacks arguable merit. Further, Miles has not argued
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3In its cautionary instruction, the trial court directed the jury to disregard the
above-described argument, and reiterated that the defendant in a criminal
case has no burden to testify or present any evidence. See Miles, 47 A.3d
1238 (unpublished memorandum at 3) (citing N.T., 8/4/10, at 134).
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or established that he was prejudiced as a result of trial counsel’s inaction
(i.e., that the trial court would have granted a mistrial, or that this Court would
have ruled in his favor on appeal). See Franklin, supra; Charleston, supra.
Therefore, Miles has failed to establish that he is entitled to relief on this basis.
Miles next contends that trial counsel was ineffective for stating, during
opening arguments, that “there are two sides to every story.” Brief for
Appellant at 31. According to Miles, this statement led the jury to believe that
he would testify during trial. Id. at 31-32.
Miles fails to include any citations to relevant legal authority in support
of his assertion. See Pa.R.A.P. 2119(a) (providing that the argument shall
include “such discussion and citation of authorities as are deemed pertinent.”).
Accordingly, this claim is waived. See Commonwealth v. Samuel, 102 A.3d
1001, 1005 (Pa. Super. 2014) (concluding that appellant waived his claim by
failing to adequately develop his argument or provide citation to and
discussion of relevant authority).
In his fourth argument, Miles claims that trial counsel was ineffective for
failing to file a motion to reconsider his sentence. Brief for Appellant at 33.
Miles asserts that the sentencing court imposed a harsh and unreasonable
sentence, and failed to consider various mitigating factors. Id.
The PCRA court addressed Miles’s claim as follows:
Contrary to [Miles’s] arguments, the [trial c]ourt explicitly
considered all of the mitigating information presented on [Miles’s]
behalf, including the information in the pre[-]sentence report, and
all of the evidence presented during the sentencing hearing, which
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included testimony from [Miles’s] girlfriend and a statement from
[Miles]. The [c]ourt also explicitly considered the evidence that
was presented during [Miles’s] trial … and [Miles’s] mental health
evaluation. Moreover, the [c]ourt considered the sentencing
guidelines, the need to protect the public, the gravity of the
offense and the impact on the victims, and [Miles’s] rehabilitative
needs. From all of this, the [c]ourt fashioned a sentence that it
felt was appropriate and reasonable. Because the [trial c]ourt
would have denied any motion for reconsideration of sentence,
[Miles] was not prejudiced by trial counsel’s failure to file such a
motion.
…
Each of the sentences was within the standard range of the
sentencing guidelines, with the exception of the terroristic threats
charges, the [involuntary deviate sexual intercourse] charge as to
[the second victim], and the rape charge as to [the third victim].
The sentences on these latter charges were all within the
aggravated range of the sentencing guidelines. The aggravated
factors [] were outlined by the [c]ourt at sentencing….
Notwithstanding [Miles’s] pattern of predatory behavior, the
[c]ourt refrained from imposing even one sentence that departed
from the sentencing guidelines.
Moreover, the magnitude of [Miles’s] criminal behavior
established by the record demonstrates that the [trial c]ourt was
well within its discretion to run all of [Miles’s] sentences
consecutively. On three separate occasions, [Miles] dragged each
of his three victims off of the street and forced them to engage in
various sexual acts …. The consecutive sentences reflected the
truly egregious nature of [Miles’s] conduct, and resulted in an
aggregate sentence commensurate with such conduct.
Because the [trial c]ourt’s sentence was entirely reasonable
and could not have been successfully challenged on appeal,
[Miles] suffered no prejudice from trial counsel’s failure to
preserve the issue for appellate review. …
PCRA Court Opinion, 8/8/18, at 12-15. We agree with the PCRA court’s
determination that Miles has not established that he was prejudiced by his
counsel’s failure to preserve his sentencing claim in a motion to reconsider.
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In his fifth claim, Miles asserts that his appellate counsel was ineffective
for failing to challenge the denial of two pre-trial Motions (specifically, his
Motion for Severance and Motion to Dismiss pursuant to Pa.R.Crim.P. 600),
which we will address separately.
Regarding his Motion for Severance, Miles argues that the three cases
were substantially unrelated, as “[t]here was no relationship between any of
the women and there was no similarity in the way the offenses were
committed.” Brief for Appellant at 35. According to Miles, the consolidation
of the three cases had a prejudicial effect on the jury. Id. at 37.
Initially, as the PCRA court correctly stated in its Opinion, the trial court
never denied Miles’s Motion for Severance. See PCRA Court Opinion, 8/8/18,
at 15 n.2.4 To the extent that Miles instead intended to challenge the Order
granting the Commonwealth’s Motion to Consolidate the cases for trial, the
PCRA court stated the following:
[O]ffenses charged in separate informations may be tried
together, even where they did not arise out of the same act or
transaction, if evidence of each offense would be admissible in a
separate trial of the other and is capable of separation by the jury
as to avoid confusion. The decision to join offenses for trial is
within the trial court’s discretion and will not be reversed on
appeal absent a manifest abuse of that discretion or a showing of
prejudice and clear injustice to the defendant.
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4 The PCRA court indicated that the “[M]otion appears to have been
withdrawn[.]” PCRA Court Opinion, 8/8/18, at 15 n.2. However, it is not clear
from the certified record whether the Motion for Severance was formally
withdrawn.
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The law regarding the admissibility of other crimes in a
criminal trial is well-established. While such evidence is not
admissible to prove bad character or criminal propensity, it may
be admitted for other purposes where the probative value of the
evidence outweighs the potential for prejudice. One such purpose
is to establish that the crimes were part of a common plan or
scheme. Factors to be considered to establish similarity are the
elapsed time between the crimes, the geographical proximity of
the crime scenes, and the manner in which the crimes were
committed.
Here, the record establishes that the three cases were
properly joined. While each case concerned criminal acts that
occurred on different days and involved unrelated victims, they
were inextricably intertwined. All three cases occurred within
blocks of the others, with the last two occurring at the very same
location[:] a Salvation Army parking lot. Moreover, all three cases
shared additional characteristics: each victim was a black female
who was walking alone in the dark; none of the victims knew
[Miles]; [Miles] grabbed each victim from behind and put her in a
chokehold; [Miles] took each victim to a secluded location before
forcing her to engage in sexual acts; [Miles] did not wear a
condom in any of the assaults; and [Miles] ejaculated after each
assault, leaving his DNA. Accordingly, each case would have been
admissible in the trial of the others to show [Miles’s] common plan
or scheme.
Finally, each case was easily separable from the others by
both date and victims, preventing any possible confusion by the
jury. Therefore, the [trial c]ourt did not err in consolidating these
matters for trial. Consequently, appellate counsel could not have
been ineffective for failing to raise a meritless severance claim on
appeal.
PCRA Court Opinion, 8/8/18, at 15-16 (citations and quotation marks
omitted). Because we agree that Miles’s severance claim would merit no relief
on appeal, Miles has not established that his direct appeal counsel was
ineffective on this basis. See Commonwealth v. Spotz, 896 A.2d 1191,
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1211 (Pa. 2006) (stating that “counsel will not be deemed ineffective for failing
to raise a meritless claim”); see also Franklin, supra.
Regarding his Motion to Dismiss pursuant to Rule 600, Miles claims that
his appellate counsel was ineffective for failing to challenge the denial of his
Motion. Brief for Appellant at 38. Miles points out that while the offenses took
place in 2005 and 2006, he was not arrested until January 2009. Id. at 39.
Miles asserts that he was prejudiced because the delay rendered him unable
to produce critical witnesses on his behalf. Id.
To prevail on a claim of violation of due process based on
pre-arrest delay, a defendant must first establish that the delay
caused him actual prejudice. … [I]n order for a defendant to show
actual prejudice, he or she must show that he or she was
meaningfully impaired in his or her ability to defend against the
state’s charges to such an extent that the disposition of the
criminal proceedings was likely affected. This kind of prejudice is
commonly demonstrated by the loss of documentary evidence or
the unavailability of a key witness. It is not sufficient for a
defendant to make speculative or conclusory claims of possible
prejudice as a result of the passage of time. When a defendant
claims prejudice through the absence of witnesses, he or she must
show in what specific manner missing witnesses would have aided
the defense. Furthermore, it is the defendant’s burden to show
that the lost testimony or information is not available through
other means.
Commonwealth v. Tielsch, 934 A.2d 81, 91-92 (Pa. Super. 2007) (citations
and paragraph break omitted).
Here, Miles failed to identify any specific witness that he was unable to
produce at trial as a result of the pre-arrest delay. Miles likewise failed to
explain “the substance of [the alleged witnesses’] testimony in order to show
how they would have aided in his defense.” PCRA Court Opinion, 8/8/18, at
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17. Therefore, Miles’s underlying claim lacks merit. See Tielsch, supra.
Accordingly, Miles has not establish that his appellate counsel was ineffective
in this regard. See Spotz, supra; Franklin, supra.
Because the record reflects that Miles’s arguments lack arguable merit,
and Miles failed to established that he suffered actual prejudice, we conclude
that the PCRA court did not err in dismissing Miles’s Petition without a hearing.
See Baumhammers, supra. We therefore affirm the PCRA court’s Order
dismissing Miles’s Petition.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/16/19
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