J. S21038/18

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA :

:

IN THE SUPERIOR COURT OF

PENNSYLVANIA

v. :

:

JAMON NYHEIM DIEHL, : No. 1653 WDA 2017

:

 Appellant :

Appeal from the PCRA Order, October 11, 2017,

in the Court of Common Pleas of Jefferson County

Criminal Division at No. CP-33-CR-0000715-2013

BEFORE: OLSON, J., MURRAY, J., AND FORD ELLIOTT, P.J.E. 

MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED NOVEMBER 13, 2018

Jamon Nyheim Diehl appeals from the order of October 11, 2017, of 

the Court of Common Pleas of Jefferson County that denied his petition filed 

pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-

9546. Appointed counsel, George N. Daghir, Esq. (“Attorney Daghir”), has 

filed a petition to withdraw and brief, pursuant to “Turner/Finley.”

1

 After 

careful review, we grant counsel’s petition to withdraw and affirm the order 

denying PCRA relief. 

The record reflects that on April 18, 2014, following a jury trial, 

appellant was convicted of two counts of aggravated assault, two counts of 

simple assault, recklessly endangering another person, and simple 

 

1 Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and 

Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc).
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assault--mutual consent fight.2 The convictions stemmed from appellant’s 

attack of Glenn Teddy Baker, Sr. (“Baker”). Appellant also pled guilty to one 

count of aggravated assault and two counts of simple assault in a separate 

matter.3

On April 29, 2014, the trial court sentenced appellant to serve an 

aggregate term of 14 to 40 years’ imprisonment. On May 1, 2014, appellant 

filed a post-sentence motion and sought either reconsideration of his 

sentence, judgment of acquittal, or a new trial. On May 1, 2014, the trial 

court denied the post-sentence motion. Appellant filed a timely notice of 

appeal. On June 30, 2015, this court affirmed the judgment of sentence. 

Commonwealth v. Diehl, 122 A.3d 1149 (Pa.Super. 2015) (unpublished 

memorandum). Appellant filed a petition for allowance of appeal with the 

Supreme Court of Pennsylvania. By order dated December 2, 2015, the 

Supreme Court of Pennsylvania denied the petition for allowance of appeal. 

Commonwealth v. Diehl, 128 A.3d 219 (Pa. 2015). Appellant did not file 

a writ of certiorari with the Supreme Court of the United States.

On December 5, 2016, appellant filed a timely pro se PCRA petition. 

Appellant alleged that he was eligible for relief due to constitutional 

violations, ineffective assistance of counsel, and the unavailability at trial of 

 

2 18 Pa.C.S.A. §§ 2702(a)(1), 2702(a)(4), 2701(a)(1), 2701(a)(2), 2705,

and 2701(b)(1), respectively.

3 Appellant was sentenced on both cases at the same time.
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exculpatory evidence that has subsequently become available and would 

have changed the outcome of the trial. (Motion for post-conviction collateral 

relief, 12/5/16 at 2.) By order dated December 22, 2016, the PCRA court 

appointed Attorney Daghir to represent appellant on his PCRA petition. On 

March 15, 2017, Attorney Daghir filed amendments to the PCRA petition in 

which he asserted that appellant received an illegal sentence because of the 

ten-year mandatory minimum sentence imposed and that appellant’s trial 

counsel was ineffective for not objecting to the ten-year mandatory 

minimum sentence and for failing to object to the incorrect offense gravity 

score that was used in the pre-sentence investigation report. The PCRA

court scheduled a hearing, which was held on June 13, 2017. On 

October 11, 2017, the PCRA court denied the PCRA petition. 

Appellant filed a notice of appeal on November 3, 2017. On 

November 9, 2017, the PCRA court ordered appellant to file a concise 

statement of errors complained of on appeal pursuant to Rule 1925(b) of the 

Pennsylvania Rules of Appellate Procedure. On November 11, 2017, 

Attorney Daghir filed a statement of intent to file a Turner/Finley brief as 

he intended to withdraw from representation of appellant in lieu of filing a 

statement of errors complained of on appeal. On November 20, 2017, the 

PCRA court announced that it would not be filing an opinion pursuant to 

Pa.R.A.P. 1925(a). Attorney Daghir has filed a petition to withdraw and 

“no-merit” brief in accordance with Turner/Finley.
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Before addressing the merits of appellant’s appeal, we must determine 

whether Attorney Daghir has complied with the procedural dictates for PCRA 

counsel seeking to withdraw under Turner/Finley and their progeny.

We have explained that:

Counsel petitioning to withdraw from PCRA 

representation must proceed . . . under 

[Commonwealth v.] Turner, [518 Pa. 491, 544 

A.2d 927 (1988)], and [Commonwealth v.] Finley, 

[379 Pa.Super. 390, 550 A.2d 213 (1988)] and . . . 

must review the case zealously. Turner/Finley

counsel must then submit a “no-merit” letter to the 

trial court, or brief on appeal to this Court, detailing 

the nature and extent of counsel’s diligent review of 

the case, listing the issues which petitioner wants to 

have reviewed, explaining why and how those issues 

lack merit, and requesting permission to withdraw.

Counsel must also send to the petitioner: 

(1) a copy of the “no merit” letter/brief; 

(2) a copy of counsel’s petition to 

withdraw; and (3) a statement advising 

petitioner of the right to proceed pro se

or by new counsel.

* * *

Where counsel submits a petition and 

no—merit letter that . . . satisfy the 

technical demands of Turner/Finley, the 

court—trial court or this Court—must 

then conduct its own review of the merits 

of the case. If the court agrees with 

counsel that the claims are without 

merit, the court will permit counsel to 

withdraw and deny relief.

Commonwealth v. Doty, 48 A.3d 451, 454 

(Pa.Super. 2012) (internal citations omitted) 

(quoting Commonwealth v. Wrecks, 931 A.2d 

717, 721 (Pa.Super. 2007)).
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Commonwealth v. Muzzy, 141 A.3d 509, 510-511 (Pa.Super. 2016) 

(brackets in Muzzy).

Here, Attorney Daghir has filed an application to withdraw, asserting 

that he has made a conscientious examination of the trial court record and 

has determined that the issues appellant wants this court to review lack 

merit; he has also filed a brief with this court, setting forth each issue 

appellant wishes to have reviewed, and why each is meritless; and he has 

forwarded to appellant both a copy of the application to withdraw and the 

brief, and has advised appellant that he has the right to proceed pro se, 

retain new counsel, or raise any additional points he deems worthy of this 

court’s consideration. (Application to withdraw as counsel, 2/2/18 at 1-2.) 

Therefore, we determine that Attorney Daghir has complied with the 

requirements of Turner/Finley, and we will proceed to an independent 

review of the record to decide whether the PCRA petition is, in fact, 

meritless.

Attorney Daghir has identified seven issues that appellant wants this 

court to review:

1. Was [appellant’s] trial counsel ineffective for 

failing to raise at the trial level a ‘Brady [v. 

Maryland, 373 U.S. 83 (1963),]’ violation on 

the part of the prosecution?

2. Was [appellant’s] appellate counsel ineffective 

for failing to raise on direct appeal a ‘Brady’

violation on the part of the prosecution?
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3. Was [appellant’s] trial attorney ineffective for 

failing to raise at trial the prosecution[’]s 

unconstitutional use at trial of falsifications 

contained in the police reports?

4. Was [appellant’s] appellate counsel ineffective 

for failing to raise on direct appeal the 

prosecution[’]s use at trial of falsifications 

contained in the police reports?

5. Was trial counsel ineffective for failing to 

object at time of trial to the prosecution[’]s 

improper reference, during closing argument to 

the jury, to [appellant’s] silence in violation of 

his Fifth Amendment right against 

self-incrimination?

6. Was an illegal mandatory minimum sentence 

imposed by the court in this case in violation of 

Alleyne v. United States, 133 S.Ct. 2151 

(2013)?

7. Was [appellant’s] trial counsel ineffective for 

failing, at time of sentencing, to object to an 

improper ‘offense gravity score’ of ‘11’ being 

reflected in the pre-sentence investigation 

report for the crime of aggravated assault 

when the correct ‘offense gravity score’ for 

said crime was a ‘10’?

Attorney Daghir’s brief at 14-15.

PCRA petitions are subject to the following standard of review:

“[A]s a general proposition, we review a denial of 

PCRA relief to determine whether the findings of the 

PCRA court are supported by the record and free of 

legal error.” Commonwealth v. Dennis, [], 17 

A.3d 297, 301 (Pa. 2011) (citation omitted). A PCRA 

court’s credibility findings are to be accorded great 

deference, and where supported by the record, such 

determinations are binding on a reviewing court. Id.

at 305 (citations omitted). To obtain PCRA relief, 

appellant must plead and prove by a preponderance 
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of the evidence: (1) his conviction or sentence 

resulted from one or more of the errors enumerated 

in 42 Pa.C.S. § 9543(a)(2); (2) his claims have not 

been previously litigated or waived, id.

§ 9543(a)(3); and (3) “the failure to litigate the 

issue prior to or during trial . . . or on direct appeal 

could not have been the result of any rational, 

strategic or tactical decision by counsel[,]” id.

§ 9543(a)(4). An issue is previously litigated if “the 

highest appellate court in which [a]ppellant could 

have had review as a matter of right has ruled on 

the merits of the issue[.]” Id. § 9544(a)(2). “[A]n 

issue is waived if [a]ppellant could have raised it but 

failed to do so before trial, at trial, . . . on appeal or 

in a prior state postconviction proceeding.” Id.

§ 9544(b).

Commonwealth v. Treiber, 121 A.3d 435, 444 (Pa. 2015).

To prevail on a claim alleging counsel’s 

ineffectiveness under the PCRA, Appellant must 

demonstrate (1) that the underlying claim is of 

arguable merit; (2) that counsel’s course of conduct 

was without a reasonable basis designed to 

effectuate his client’s interest; and (3) that he was 

prejudiced by counsel’s ineffectiveness, i.e. there is 

a reasonable probability that but for the act or 

omission in question the outcome of the proceeding 

would have been different. Commonwealth v. 

Kimball, 555 Pa. 299, 724 A.2d 326, 333 (1999); 

Commonwealth v. Douglas, 537 Pa. 588, 645 

A.2d 226, 230 (1994).

Commonwealth v. Bracey, 795 A.2d 935, 942 (Pa. 2001).

I. and II. Claims Related to Brady.

Initially, appellant alleged that his trial and appellate counsel, 

Fred D. Hummel, Esq. (“Attorney Hummel”), was ineffective because he 

failed to raise the issue of a Brady violation on the part of the 
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Commonwealth, relating written statements by the victim, Baker, and the 

falsification of police reports. (Attorney Daghir’s brief at 17.) 

In Brady, the Supreme Court held that “suppression by the 

prosecution of evidence favorable to an accused upon request violates due 

process where the evidence is material either to guilt or to punishment, 

irrespective of the good faith or bad faith of the prosecution.” Id., 373 U.S. 

at 87. 

This court has explained that, “to establish a Brady violation, a 

defendant must demonstrate that: (1) the evidence was suppressed by the 

Commonwealth, either willfully or inadvertently; (2) the evidence was 

favorable to the defendant; and (3) the evidence was material, in that its 

omission resulted in prejudice to the defendant.” Commonwealth v. 

Haskins, 60 A.3d 538, 547 (Pa.Super. 2012) (citations omitted). The 

burden rests with the defendant to “prove by reference to the record, that 

evidence was withheld or suppressed by the prosecution.” Id.

One of the issues deals with the statement written by Baker. One 

written statement by Baker was dated November 22, 2013 at 8:15 p.m. The 

Commonwealth introduced this statement at trial as Exhibit 1-A. (Notes of 

testimony, 4/17/14 at 98.) There was a second written statement signed by 

Baker that was dated December 3, 2013. The Commonwealth introduced 

this statement into evidence at trial as Exhibit 1-B. (Id.) Appellant alleges 

that Baker did not write the initial statement that was utilized to give the 
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arresting officer probable cause to arrest appellant and which ultimately led 

to his conviction. (Attorney Daghir’s brief at 17.) On cross-examination by 

Attorney Hummel, Baker testified that he wrote two statements. He testified 

that he wrote the first one at the police station. The first statement omitted 

information such as that he went to appellant’s apartment and spoke with 

him. (Id. at 83-84.) Baker also testified that he wrote the second 

statement on December 3, 2013. (Id. at 89.)

Appellant has failed to establish that the Commonwealth suppressed 

any evidence with respect to the writing of the statements. On 

cross-examination, Attorney Hummel questioned Baker concerning the fact 

that two different statements were attributed to him and concerning the 

discrepancies between the two statements. Baker maintained that he 

authored both of them. (Notes of testimony, 4/17/14 at 82-84, 88-94, 

96-97.) Other than appellant’s subjective belief that Baker did not write both 

statements, the record does not indicate a violation of Brady. 

Attorney Daghir concluded:

These issues lack merit as the alleged Brady

violations involve information that had been

previously provided to the defense by the 

prosecution and were used by the defense 

repeatedly during cross[-]examination of prosecution 

witnesses in an effort to impeach he credibility of 

their testimony. Brady requires that the prosecution 

suppress the evidence to the prejudice of the 

defendant. In this case the opposite occurred. Here 

the evidence was provide[d] to the defense and 

utilized by the defense to attack the credibility of 

prosecution witnesses. Com[monwealth] v. 
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Paddy, 15 A.3d 431, 450 (P[a.] 2011). Trial 

counsel cannot be held to be ineffective for failing to 

pursue a meritless claim. Com[monwealth] v. 

Jones, 811 A.2d 994 (P[a.] 2002). For the same 

reason appellate counsel would not be ineffective for 

failing to raise this claim. And as indicated earlier 

[appellant’s] trial attorney could not argue his own 

ineffectiveness on a direct appeal.

Attorney Daghir’s brief at 20.

Appellant’s claim was of no merit and, consequently, fails to meet the 

first prong necessary to prove ineffective assistance of counsel. See 

Kimball. Furthermore, counsel was not ineffective for failing to raise a 

Brady claim on appeal. If a petitioner cannot establish that trial counsel 

was ineffective, then a derivative claim of appellate counsel ineffectiveness 

must also fail. Commonwealth v. Rainey, 928 A.2d at 224. 

III. and IV. Falsifications.

The next two issues analyzed by Attorney Daghir address whether 

Attorney Hummel was ineffective at trial and on appeal for failing to argue 

the Commonwealth’s unconstitutional use at trial of falsifications contained 

in police reports. First, Attorney Daghir notes that to the extent these 

claims constitute a weight of the evidence claim, they have no merit as this 

court already ruled on the weight of the evidence and affirmed the judgment 

of sentence on appellant’s direct appeal. A review of this court’s decision 

reveals that the issue raised on direct appeal was that the verdict was 

against the weight of the evidence because the Commonwealth witnesses 

allegedly lied. A review of appellant’s brief on direct appeal indicates that 
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while both the direct appeal and the issue raised here have some relation to 

the credibility of witnesses, the issue presented here was not previously 

litigated on direct appeal.

Appellant asserts that Officer Heath Zeitler, of the Borough of

Punxsutawney Police Department, could not be at the hospital and at the 

police station at the same time. If Officer Zeitler did not leave the hospital 

until 8:48 p.m., then he could not have been at the police station taking the 

statement of Baker at 8:15 p.m. (Attorney Daghir’s brief at 21-22.) 

Appellant further asserts that the police officers were able to manipulate and

change the reports on their computer and that falsified reports were utilized 

to refresh the recollections of several Commonwealth witnesses, and that 

the two written statements by Baker were written by two different people. 

(Id. at 22.)

Attorney Daghir notes that the allegation regarding Officer Zeitler’s

being in two places at once is made based on the assumption that 

Officer Zeitler was the last officer to leave the hospital at 8:48 p.m. 

However, Attorney Daghir reports that the report does not indicate when a 

particular officer left. Appellant argues that this timing means that 

Officer Zeitler was not present at the time Baker made his written 

statements. Baker testified that he did write the statements and was 

subjected to cross-examination by Attorney Hummel on this issue. (Id. at 

22-23.). Even if this claim has arguable merit, appellant cannot prove that 
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he suffered prejudice due to counsel’s ineffectiveness. Bracey, 795 A.2d at 

942. Similarly, as Attorney Hummel was not ineffective at trial with respect 

to this issue, he was not ineffective for failing to raise it on appeal. Rainey, 

928 A.2d at 224.

With respect to the modification of police reports, Attorney Daghir 

states that appellant fails to point to any specific instance of where the 

police fabricated a report. (Attorney Daghir’s brief at 23.). Also, 

Attorney Hummel posed questions to Officer Zeitler on cross-examination 

regarding the fact that police officers can modify their reports. (Notes of 

testimony, 4/17/14 at 252.) This court agrees with Attorney Daghir that 

appellant failed to establish how he was prejudiced by Attorney Hummel’s 

action or inaction on this issue, and consequently, did not prove ineffective 

assistance of counsel at trial. Bracey, 795 A.2d at 942. Similarly, there 

was no ineffectiveness for failing to raise this issue on appeal. Rainey, 928 

A.2d at 224.

Attorney Daghir next asserts that with respect to the Commonwealth’s 

use of police reports to refresh the recollection of witnesses, appellant’s 

claim is without merit based on three instances that occurred at trial. 

(Attorney Daghir’s brief at 23-24.) First, the Commonwealth conducted 

direct examination of Officer Kevin Porada, of the Borough of Punxsutawney 

Police Department. Officer Porada testified that appellant told him at the 

police station that he wished the police had shot him. (Notes of testimony, 
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4/17/14 at 206.) When the Commonwealth then asked Officer Porada if 

appellant stated why he wanted the police to shoot him, Officer Porada said 

that he did not recall. (Id.) With the trial court’s permission, the 

Commonwealth presented Officer Porada’s supplemental report to 

Officer Porada to refresh his recollection. Officer Porada then testified that 

appellant told him that he wished the police had shot him because he did not 

want to go to prison. (Id. at 207). Rule 612 of the Pennsylvania Rules of 

Evidence permits a witness to use a prior writing to refresh his memory for 

the purpose of testifying. Pa.R.E. 612. This claim is without arguable merit,

which is the first prong needed to prove ineffective assistance of counsel. 

Bracey, 795 A.2d at 942. Attorney Hummel was not ineffective either at 

trial or on appeal. See Rainey, 928 A.2d at 224.

Later, the Commonwealth presented Officer Porada with his report to 

refresh his recollection when he was asked why appellant said that he had 

stabbed someone. After reviewing his report, Officer Porada testified that 

appellant told him that two people attacked him. (Id. at 208.) As 

Attorney Daghir points out, Officer Porada’s testimony, after his recollection 

was refreshed, was not harmful to appellant’s case based on appellant’s 

theory that he acted in self-defense. Attorney Hummel would have no 

reason to object to this testimony, as appellant suffered no prejudice, 

Bracey, 795 A.2d at 942, or to raise it on appeal. See Rainey, 928 A.2d at 

224. 
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Attorney Daghir cites a third incident at trial, which occurred during 

the Commonwealth’s direct examination of Officer Zeitler. Officer Zeitler 

was asked what appellant had told him regarding the knifing. The 

Commonwealth showed Officer Zeitler a copy of his report. Officer Zeitler 

recounted that appellant testified that Baker had come after him with a 

knife, the two engaged in a physical altercation, and fell down the stairs. 

Officer Zeitler reported that appellant told him that was when Baker received 

his stab wounds. (Notes of testimony, 4/17/14 at 224-225.) As 

Attorney Daghir states, this testimony was beneficial to appellant and did 

not prejudice him in any way, so Attorney Hummel was not ineffective for 

failing to object. Bracey, 795 A.2d at 942. Similarly, Attorney Hummel was 

not ineffective when he did not raise this issue on appeal. See Rainey, 928 

A.2d at 224.

Appellant returns to the written statements by Baker and his belief 

that the handwriting indicates that two different people wrote the 

statements. However, Baker testified that he wrote both statements. 

Attorney Hummel questioned Baker about the statements on 

cross-examination and had the two statements published to the jury so that 

the jury could see the writings and Judge Baker’s credibility. 

(Attorney Daghir’s brief at 26.) Here, Attorney Hummel’s conduct had a 

reasonable basis that was designed to promote appellant’s interest, so 

appellant failed to meet the second prong necessary to prove ineffective 
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assistance of counsel. Bracey, 795 A.2d at 942. Similarly, he was not 

ineffective for failing to raise this issue on appeal. See Rainey, 928 A.2d at 

224.

V. Fifth Amendment.

Appellant next asserts that Attorney Hummel was ineffective because 

he did not object or pursue on appeal where the prosecution violated his 

right against self-incrimination under the Fifth Amendment to the United 

States Constitution when, in its closing statement, the Commonwealth

referred to the fact that appellant did not talk to the police prior to his 

arrest. (Attorney Daghir’s brief at 27.) The Supreme Court of Pennsylvania 

has held that “when a criminal defendant waives his right to remain silent 

and testifies at his own trial, neither the United States nor the Pennsylvania 

Constitution prohibit a prosecutor from impeaching a defendant’s credibility 

by referring to his pre-arrest silence.” Commonwealth v. Bolus, 680 A.2d 

839, 844 (Pa. 1996). Therefore, the Commonwealth did not violate 

appellant’s constitutional rights. Appellant has failed to meet the first prong 

to prove counsel ineffectiveness: that the underlying claim is of arguable 

merit. Bracey, 795 A.2d at 942. Attorney Hummel was not ineffective at 

trial or on appeal. See Rainey, 928 A.2d at 224.

VI. Mandatory Minimum Sentence.

Once Attorney Daghir was appointed to represent appellant, he filed 

amendments to the PCRA petition. One of the issues he raised was that 
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Attorney Hummel was ineffective because he did not object to the illegal 

ten-year mandatory minimum sentencing imposed on appellant by the trial 

court for his conviction of aggravated assault. (Amendments to PCRA 

petition, 3/15/17 at 1.) The amendment to the petition asserted that the 

ten-year sentence imposed for the aggravated assault conviction, pursuant 

to the mandatory minimum sentence provisions of 42 Pa.C.S.A. § 9714, was 

an illegal sentence based on Alleyne v. United States, 570 U.S. 99 (2013).

In Commonwealth v. Bragg, 133 A.3d 328 (Pa.Super. 2016), this 

court held that a mandatory minimum sentence under 42 Pa.C.S.A. § 9714 

for a person who had a prior conviction for a crime of violence was 

permissible based on Commonwealth v. Reid, 117 A.3d 777 (Pa.Super. 

2015). On August 22, 2017, the Supreme Court of Pennsylvania affirmed 

this court’s decision in Bragg in a per curiam order. Commonwealth v. 

Bragg, 169 A.3d 1024 (Pa. 2017). The PCRA court stated that appellant 

was previously convicted of a crime of violence, which ended any question 

concerning the legality of the sentence. (See PCRA court opinion, 10/11/17 

at 1.) As Attorney Daghir asserts, this claim lacks merit. Once again, 

because the underlying claim lacks arguable merit, appellant failed to prove 

that Attorney Hummel was ineffective. Bracey, 795 A.2d at 942. 

VII. Offense Gravity Score.

In addition, the amendment to the PCRA petition contained an 

allegation that Attorney Hummel was ineffective and appellant suffered 
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prejudice when Attorney Hummel failed to object at the sentencing hearing 

when the offense gravity score contained in the pre-sentence investigation 

report was listed as “11” rather than the correct “10.” However, 

Attorney Daghir now asserts that because the trial court did not sentence 

appellant based on the guideline minimum sentence range for the 

aggravated assault conviction, appellant suffered no prejudice. This court 

agrees. Appellant did not establish that he met the third element needed to 

prove counsel ineffectiveness, that he suffered prejudice. Bracey, 795 A.2d 

at 942. 

Order affirmed. Petition to withdraw granted. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 11/13/2018