J-S64026-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
EDWARD N. DANIELS
Appellant No. 539 EDA 2016
Appeal from the PCRA Order dated February 16, 2016
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0012194-2009
CP-51-CR-0012199-2009
BEFORE: STABILE, J., SOLANO, J., and STEVENS, P.J.E.*
MEMORANDUM BY SOLANO, J.: FILED OCTOBER 20, 2016
Appellant, Edward Daniels, appeals from the order dismissing his
petition filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.
§§ 9541-9546. Upon careful review, we affirm.
The underlying facts are as follows. On June 27, 2009, Appellant,
along with Donnell Murchison and Antonio Wright, entered the Piazza
Navona Apartments in the Northern Liberties section of Philadelphia. All
three men waited in the hallway of the seventh floor. As Rian Thal, who was
allegedly expecting a shipment of $500,000 worth of powder cocaine from
Texas, and her associate, Timothy Gilmore, were exiting the elevator,
Appellant, Wright, and Murchison pulled out their guns and announced a
____________________________________________
*
Former Justice specially assigned to the Superior Court.
J-S64026-16
robbery. Gilmore resisted, and Wright shot him. Murchison then shot Thal in
the back of the head. Upon noticing that Gilmore was still alive, Wright shot
Gilmore twice more, also in the head. Both victims died at the scene.
Appellant, Wright, and Murchison fled without obtaining the targeted drugs.
See Trial Court Opinion, 4/3/12, at 2-6.
A jury convicted Appellant of two counts of second-degree murder,
robbery, criminal conspiracy, and carrying firearms on a Philadelphia public
street without a license.1 Following the conclusion of the trial, Appellant was
sentenced to serve two consecutive terms of life without parole for second-
degree murder, with concurrent sentences of ten to twenty years for
conspiracy, and two and a half to five years for carrying firearms.2
Appellant thereafter filed an appeal with this Court. We vacated one
conviction for criminal conspiracy, but otherwise affirmed Appellant’s
judgment of sentence. Commonwealth v. Daniels, No. 188 EDA 2012 (Pa.
Super., Sept. 27, 2013) (unpublished memorandum), allowance of appeal
denied, No. 537 EAL 2013 (Pa., Feb. 19, 2014).
On April 14, 2014, Appellant filed a pro se PCRA petition. Counsel was
appointed to represent him, and counsel filed an amended petition on
May 25, 2015. The amended petition claimed that trial counsel was
____________________________________________
1
18 Pa.C.S. § 2502(b); 18 Pa.C.S. § 3701(A)(1)(i); 18 Pa.C.S. § 903(c); &
18 Pa.C.S. § 6108.
2
The robbery charges merged for sentencing purposes.
-2-
J-S64026-16
ineffective in failing to make various objections at trial, and Appellant
requested an evidentiary hearing. The Commonwealth moved to dismiss the
petition on November 12, 2015. On January 19, 2016, the PCRA court issued
notice of its intention to dismiss the petition without a hearing, pursuant to
Rule 907(4) of the Pennsylvania Rules of Criminal Procedure. Appellant did
not respond to the notice. On February 16, 2016, the PCRA court dismissed
the petition.
The following day, Appellant filed a timely notice of appeal to this
Court. The PCRA court did not order Appellant to file a concise statement of
errors complained of on appeal, and Appellant did not file one.
In its Rule 1925(a) opinion, the PCRA court explained that it dismissed
Appellant’s petition because, although the petition did recite the standard for
a finding of ineffectiveness, it did not adequately allege facts or sufficiently
apply the law to establish a basis upon which Appellant could be entitled to
relief. The PCRA court stated:
Other than setting forth the issues in bullet point fashion and
providing general principles of law, defendant failed to discuss
each of his claims in the context of the three-part ineffectiveness
test, the law applicable to his claims, and the evidence presented
at trial. The failure to do so was fatal to his claims in relation to
the evidence and the applicable law because the law is clear that
a PCRA litigant has the never shifting burden to plead and prove
the merits of each of the prongs of the ineffectiveness test.
Defendant did not provide a clue as to the factual context of his
claims and instead merely made conclusory assertions that the
claims had arguable merit, counsel had no rational basis for not
objecting, and that he was prejudiced by counsel’s failure to
object or take other action. This was wholly insufficient to obtain
relief.
-3-
J-S64026-16
PCRA Court Opinion, 3/9/16, at 5-6.3
In Appellant’s brief to this Court, Appellant requests relief in the form
of a new trial or a remand to the PCRA court for an evidentiary hearing
based on the following issues, as stated:
A. Did trial counsel render ineffective assistance of counsel
when they failed to object to or motion the trial court for a
mistrial as a result of the prejudicial argument made by
the prosecutor in her opening statement?
B. Did trial counsel render ineffective assistance of counsel
when they failed to object to or motion the trial court for a
mistrial as a result of the prosecutors’ misconduct?
C. Did trial counsel render ineffective assistance of counsel
when they failed to object to or motion the trial court
for a mistrial as a result of trial court error or
misconduct?
Appellant’s Brief at 4.
In support of these claims, Appellant cites seventeen instances where
the prosecutor made allegedly prejudicial comments during his opening
statement, seventeen instances of alleged prosecutorial misconduct, and
____________________________________________
3
The court added that, in any event, Appellant’s claims based on his trial
counsel’s failure to make objections at trial could not meet the prejudice
prong of the ineffective assistance of counsel analysis: “Finally, it is noted
that this Court did review the cited passages from the record defendant
claims were improper and prejudicial and which trial counsel erred by not
objecting to. None of them would have entitled defendant to relief because
the evidence of guilt was overwhelming and therefore, there would not have
been a different outcome if only counsel proffered objections.” PCRA Court
Opinion, 3/9/16, at 7.
-4-
J-S64026-16
thirty-three instances of alleged judicial misconduct. Appellant’s brief
appears to be a substantially verbatim reproduction of his amended PCRA
petition. Appellant does not address the reasons given by the PCRA court for
his petition’s dismissal.
The standard of review of the dismissal of a PCRA petition is “whether
the PCRA court's determination is supported by the record and free of legal
error.” Commonwealth v. Reid, 99 A.3d 470, 481 (Pa. 2014) (citation
omitted). The reviewing court is obligated to examine each of the issues
raised in the PCRA petition. Commonwealth v. Jordan, 772 A.2d 1011,
1014 (Pa. Super. 2001). It is the Appellant’s burden to convince an appellate
court that the PCRA court erred in denying relief. Commonwealth v.
Miner, 44 A.3d 684, 688 (Pa. Super. 2012).
A PCRA petitioner bears the burden of pleading and proving his claims
on their merits. Commonwealth v. Smith, 121 A.3d 1049, 1054 (Pa.
Super. 2015) (citing 42 Pa.C.S. §§ 9543(a), 9545(b)), appeal denied, 136
A.3d 981 (Pa. 2016). A petitioner claiming ineffective assistance of counsel
must prove the three prongs of the test established in Commonwealth v.
Pierce, 527 A.2d 973, 975 (Pa. 1987): “(1) the underlying claim has
arguable merit; (2) no reasonable basis existed for counsel's actions or
failure to act; and (3) [the petitioner] suffered prejudice as a result of
counsel's error.” Commonwealth v. Fears, 86 A.3d 795, 804 (Pa. 2014)
-5-
J-S64026-16
(citations omitted).4 Counsel is presumed effective, and a petitioner bears
the burden of proving otherwise. Id. If a petitioner fails to prove by a
preponderance of the evidence any of the Pierce prongs, the court need not
address the remaining prongs. Commonwealth v. Fitzgerald, 979 A.2d
908, 911 (Pa. Super. 2009) (citation omitted), appeal denied, 990 A.2d 727
(Pa. 2010).
Because a PCRA petition claiming ineffectiveness therefore must plead
and prove facts showing that he can establish each prong of the Pierce
ineffectiveness test, the petitioner may not merely recite the Pierce
standard, but must meaningfully discuss and develop each of his claims
under the applicable facts and law. Commonwealth v. Steele, 961 A.2d
786, 797-807 (Pa. 2008). While petitioners claiming ineffectiveness often
focus on establishing that a claim has merit, see Commonwealth v.
Williams, 782 A.2d 517, 526 n.5 (Pa. 2001), they may not neglect the
other two prongs of the Pierce test. “[B]oilerplate allegations and bald
assertions of no reasonable basis and/or ensuing prejudice cannot satisfy a
petitioner's burden to prove that counsel was ineffective.” Commonwealth
v. Paddy, 15 A.3d 431, 443 (Pa. 2011); see Steele, 961 A.2d at 797 (“In
multiple claims in this case, Appellant only addresses the first prong, arguing
____________________________________________
4
The standard for proving a claim of ineffective assistance of counsel is the
same under both the state and federal constitutions, although the law of our
Commonwealth breaks the test into three elements rather than two. See
Commonwealth v. Jones, 811 A.2d 994, 1007 n.7 (Pa. 2002).
-6-
J-S64026-16
that the underlying claim has arguable merit, followed by a bald assertion of
the lack of a reasonable basis and the fact of prejudice. Such undeveloped
claims, based on boilerplate allegations, cannot satisfy Appellant's burden of
establishing ineffectiveness”).
Here, the PCRA court denied Appellant’s claim without a hearing. To
justify an evidentiary hearing on a PCRA petition, a petitioner must offer to
prove facts that will entitle him to relief. Reid, 99 A.3d at 501 n.26 (citation
omitted). A PCRA court may decline to hold an evidentiary hearing where the
petition raises no genuine issues concerning any material fact and no
legitimate purpose will be served by the proceeding. Pa.R.Crim.P. 907.
Evidentiary hearings on PCRA claims “are not discovery expeditions; rather,
they are conducted when necessary to offer the petitioner an opportunity to
prove that which he already has asserted, and only when his proffer
establishes a colorable claim about which there remains a material issue of
fact.” Commonwealth v. Sneed, 45 A.3d 1096, 1107 (Pa. 2012) (citation
omitted).
The PCRA court concluded that Appellant’s petition failed to plead facts
setting forth a colorable claim that he was entitled to relief. We agree. While
Appellant did recite the Pierce standard for a finding of ineffectiveness, he
did not adequately allege facts or sufficiently apply the law to establish his
claims. Instead, Appellant listed each asserted error on counsel’s part, set
forth the general principles of law, and then declared that counsel was
obviously ineffective, without actually engaging with the facts or the law to
-7-
J-S64026-16
demonstrate how the court should reach that conclusion. See, e.g.,
Amended PCRA Petition at 18.
Appellant’s petition is rife with bald assertions and boilerplate language
that cannot satisfy his burden to prove ineffectiveness. To take just one
example, Appellant asserted that trial counsel was ineffective for failing to
object or move for a mistrial when the prosecutor “improperly had [a
witness] make an unduly suggestive in court identification of the petitioner.”
See Amended PCRA Petition ¶ 61(b). Appellant repeats this same statement
in his brief to this Court. See Appellant’s Brief at 25 (¶ b). He follows the
statement with a citation to a single page of the trial transcript, which shows
only that the witness identified the defendant in response to a question by
counsel.5 Appellant fails to explain what was improper about this
____________________________________________
5
See N.T. 11/15/11, p. 225, which reads, in its entirety:
Q. When you walked to the Piazza, did you see any people
that are here now?
A. When I went to the Piazza?
Q. Yes.
A. Yes.
Q. Point to them.
A. (Indicating).
Q. Tell me what he is wearing?
A. The guy with the striped sweater on.
Q. This gentleman right here? (Indicating).
A. Yes.
[COUNSEL FOR COMMONWEALTH:] For the record,
indicating Mr. Daniels.
THE COURT: So indicated.
(Footnote Continued Next Page)
-8-
J-S64026-16
identification or to cite or discuss any law governing in-court identifications
that would support his claim for relief with respect to it. Regarding prejudice
resulting from the identification, Appellant’s petition said only:
The petitioner was prejudiced by trial counsel’s failure to object
to the prosecutor’s misconduct or motion the trial court for a
mistrial. The prosecutor’s misconduct buttressed the
Commonwealth’s case that was essentially based on
identification testimony. Had an objection been lodged by trial
counsel or a request for a mistrial been made by trial counsel,
the result the trial would have been different.
Amended PCRA Petition ¶¶ 74-76 (paragraphing omitted). His brief to this
Court contains these exact same sentences, except that it replaces “The
petitioner” with “Appellant.” Appellant’s Brief at 30. With only such
conclusory allegations, the PCRA court correctly concluded that Appellant did
not carry his burden of establishing a claim warranting relief. See Paddy, 15
A.3d at 443; Smith, 121 A.3d at 1054.6
_______________________
(Footnote Continued)
Q. You saw Mr. Daniels, the guy with the striped shirt. Did
you see Donney?
A. Yes.
Q. Donnell Murchison?
A. Yes.
Q. Where were they standing?
A. Like walking right off to the left where [the page ends at
this point].
6
In spite of the inadequacies of Appellant’s petition, we have reviewed each
of his claims carefully to determine whether any merit relief. We have found
none that call the PCRA court’s holding into question.
-9-
J-S64026-16
Nor did Appellant offer to prove any allegedly disputed facts that would
have warranted an evidentiary hearing. See Reid, 99 A.3d at 501 n.26;
Pa.R.Crim.P. 907. His petition focused solely on facts that are already of
record as part of the transcript of his trial, and no hearing was needed to
prove those facts. Appellant made no proffer to prove anything else. The
PCRA court therefore did not err in concluding that there were no genuine
issues of material fact and in denying relief without an evidentiary hearing.
Appellant’s brief to this Court fails to address these concerns. It
therefore fails to establish any basis for reversal. In Commonwealth v.
Miner, this Court confronted a similar situation. The PCRA court concluded
that the petition claiming ineffectiveness “did not allege and clarify facts,
and did not proffer those facts in a fashion sufficiently related to the law, so
as to present any meritorious claims entitling Appellant to a remedy.” 44
A.3d at 688. On appeal, the appellant failed in his brief to argue, much less
establish, how the PCRA court erred in evaluating and denying his petition.
This Court found that:
Aside from the question of whether Appellant's factual assertions
and arguments, as he now presents them on appeal, would
establish ineffectiveness, the fatal flaw in Appellant's brief is that
it does not demonstrate his petition articulated his claims to the
PCRA court. That is, Appellant argues to us as if we were the
PCRA court in the first instance instead of telling us how the
court was wrong in its evaluation of his petition.
Id.
- 10 -
J-S64026-16
Here, similarly, Appellant’s brief to this Court has failed to rebut the
PCRA court’s holding that his petition is deficient, even after having received
the Commonwealth’s motion to dismiss, the PCRA court’s Rule 907 notice of
intention to dismiss, and the PCRA court’s 1925(a) opinion. Appellant has
therefore not carried his burden to prove that the PCRA court erred in
denying him relief. See Miner, 44 A.3d at 688.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/20/2016
- 11 -