J-S49030-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

ANTHONY DEJESUS,

Appellant No. 353 MDA 2015

Appeal from the PCRA Order entered January 27, 2015,

in the Court of Common Pleas of Lebanon County,

Criminal Division, at No(s): CP-38-CR-0001098-2012

BEFORE: BENDER, P.J.E., ALLEN, and OLSON, JJ.

MEMORANDUM BY ALLEN, J.: FILED AUGUST 18, 2015

Anthony DeJesus (“Appellant”) appeals from the order denying his 

petition for post-conviction relief filed pursuant to the Post Conviction Relief 

Act (“PCRA”). 42 Pa.C.S.A. §§ 9541-46. We affirm.

The PCRA court summarized the pertinent facts and procedural history 

as follows:

[Appellant] was charged with one count of Criminal 

Attempt/Criminal Homicide, two counts of Aggravated 

Assault, and one count of Persons Not to Possess, Use, 

Manufacture, Control, Sell, or Transfer Firearms. On 

September 27, 2012, [Appellant] filed a pretrial motion, 

where he raised suppression of evidence and discovery 

issues. A pretrial hearing was held on October 31, 2012. 

On December 18, 2012, President Judge John C. Tylwalk 

filed an Opinion denying the Motion to Suppress Evidence 

and granting the Motion for Discovery.

A jury trial was held on March 6, 2013. The jury found 

[Appellant] guilty of all charges except for the criminal 

attempt/criminal homicide charge. [Appellant] was 
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sentenced to 6 to 20 years of incarceration on the 

aggravated assault convictions and 5 to 10 years of 

incarceration on the persons not to possess firearms 

conviction. The sentences were to run consecutive. An 

appeal was filed to the Superior Court of Pennsylvania. 

One issue was raised on appeal where [Appellant] 

challenged the denial of the Motion to Suppress Evidence. 

On January 13, 2014, the Superior Court of Pennsylvania 

affirmed [Appellant’s] judgment of sentence. 

[Commonwealth v. DeJesus, 96 A.3d 1081 (Pa. Super. 

2013) (unpublished memorandum).]

On December 4, 2014, [Appellant] filed a timely [PCRA] 

Petition[.] [The PCRA court appointed counsel] to 

represent [Appellant]. The Commonwealth filed a 

response to the PCRA Petition on December 15, 2014. On 

January 22, 2015, [PCRA counsel] filed an Amended PCRA 

Petition. A PCRA hearing was held on January 27, 2015, 

At the conclusion of the hearing, this Court denied the 

PCRA Petition.

PCRA Court Opinion, 3/13/15, at 1-2 (footnotes omitted). This timely appeal 

followed. Both Appellant and the PCRA court have complied with Pa.R.A.P. 

1925.

Appellant raises the following issues:

1. Whether trial counsel was ineffective for failing to call 

key witnesses on [Appellant’s] behalf, whose proposed 

testimony and whereabouts were known to trial counsel 

prior to and during trial, and whose eye-witness [sic] 

testimony would have directly refuted the 

Commonwealth’s allegations?

2. Whether trial counsel was ineffective for failing to 

consult with [Appellant] regarding videotape evidence, 

which was used at trial?

3. Whether trial counsel was ineffective for failing to 

thoroughly discuss [Appellant’s] appellate rights?

4. Whether [the] trial court erred when it sentenced 

[Appellant] to a mandatory firearm enhancement 
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minimum, where such element is illegal in light of the 

holding in [Alleyne v. United States, 133 S.Ct. 2151 

(2013)]?

Appellant’s Brief at 4.

This Court’s standard of review regarding an order dismissing a 

petition under the PCRA is whether the determination of the PCRA court is 

supported by the evidence of record and is free of legal error. 

Commonwealth v. Halley, 870 A.2d 795, 799 n.2 (Pa. 2005). 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).

Because Appellant’s first three issues challenge the stewardship of 

prior counsel, we apply the following principles. Counsel is presumed to be 

effective, and Appellant has the burden of proving otherwise. 

Commonwealth v. Pond, 846 A.2d 699, 708 (Pa. Super. 2004).

In order for Appellant to prevail on a claim of ineffective 

assistance of counsel, he must show, by a preponderance of 

the evidence, ineffective 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. 

Commonwealth v. Kimball, 555 Pa. 299, 724 A.2d 326, 

333 (1999). Appellant must demonstrate: (1) the 

underlying claim is of arguable merit; (2) that counsel had

no reasonable strategic basis for his or her action or 

inaction; and (3) but for the errors and omissions of 

counsel, there is a reasonable probability that the outcome 

of the proceedings would have been different. Id. The 

petitioner bears the burden of proving all three prongs of 

the test. Commonwealth v. Meadows, 567 Pa. 344, 787 

A.2d 312, 319-20 (2001).
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Commonwealth v. Johnson, 868 A.2d 1278, 1281 (Pa. Super. 2005). In 

assessing a claim of ineffectiveness, when it is clear that appellant has failed

to meet the prejudice prong, the court may dispose of the claim on that 

basis alone, without a determination of whether the first two prongs have 

been met. Commonwealth v. Travaglia, 661 A.2d 352, 357 (Pa. 1995). 

Counsel cannot be deemed ineffective for failing to pursue a meritless claim. 

Commonwealth v. Loner, 836 A.2d 125, 132 (Pa. Super. 2003) (en banc), 

appeal denied, 852 A.2d 311 (Pa. 2004). 

 Appellant first claims that trial counsel was ineffective for failing to call 

several eyewitnesses to testify in his defense. See Appellant’s Brief at 9-11. 

In order to establish that trial counsel was ineffective for failing to 

investigate and/or call a witness at trial, a PCRA petitioner must 

demonstrate: 

(1) the witness existed; (2) the witness was available; (3) 

trial counsel was informed of the existence of the witness or 

should have known of the witness’s existence; (4) the 

witness was prepared to cooperate and would have testified 

on appellant’s behalf; and (5) the absence of the testimony 

prejudiced appellant.

Commonwealth v. Hall, 867 A.2d 619, 629 (Pa. Super. 2005) (citation 

omitted). 

Here, the PCRA court summarized the testimony from the evidentiary 

hearing as follows:
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At the PCRA hearing, [Appellant] testified that there 

were three witnesses who would have testified at trial that 

they [along with Appellant] were present at the incident, 

there was already an argument when they arrived, and 

they did not have a gun on them. [Trial counsel] testified 

that to his knowledge, [Appellant] never gave him the 

name of the three witnesses. [Trial counsel] did not have 

the names of these individuals in his file. [Trial counsel] 

testified that [Appellant’s] purpose of having them called 

to testify that a fight was already [occurring] at the scene 

and they did not have a gun on them would contradict 

[Appellant’s] defense that he was not present at the scene 

at the time of the incident.

PCRA Court Opinion, 3/13/15, at 6 (footnote omitted).

The PCRA court then explained its rationale for denying Appellant postconviction relief:

This claim lacks arguable merit. On October 16, 2012, 

Appellant filed a Notice of Alibi Defense. The notice states 

that Appellant was at 11 North Ninth Street, Apt. 3, 

Lebanon, PA on the date and time of the incident. The 

notice also sets forth two individuals, who both have the 

same address, who may be called to support the alibi 

claim. [Appellant’s] grandmother testified at the jury trial 

that Appellant was at home that night. [Appellant’s] aunt 

testified at the jury trial that [Appellant] was at home that 

night. [Appellant] himself testified at the jury trial that he 

was at home that night.

Appellant, his grandmother, and his aunt all testified 

that Appellant was at home the night of the incident. Now 

Appellant is claiming that there are three witnesses who 

would have testified that he actually was at the scene of 

the crime, but a fight was already [occurring] upon their 

arrival, and they did not have a gun on them. These two 

theories contradict one another. Appellant has always 

maintained that he was not at the scene of the crime that 

night. Now, Appellant is claiming he actually was there. 

[Appellant] even states in his pro se PCRA Petition, “When 

my witnesses and I got to the scene, there were already 

two parties their [sic] having words.” The only value 
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obtained from Appellant’s instant PCRA claim is it suggests 

the trial witnesses, including [Appellant] himself, 

committed perjury at the jury trial. Therefore, we cannot 

find [trial counsel] ineffective for failing to call these 

individuals at trial since they would have contradicted 

[Appellant’s] defense that he was at home at the time of 

the incident.

PCRA Court Opinion, 3/13/15, at 6-7 (citations omitted).

Our review of the record supports the PCRA court’s conclusions. 

Although the PCRA court did not make a specific credibility determination as 

to whether trial counsel knew of the witnesses, the court clearly found that 

the absence of their testimony did not prejudice Appellant because the 

testimony would have contradicted Appellant’s alibi defense presented at 

trial. Thus, because Appellant has failed to establish all of the Hall factors, 

see supra, his first ineffectiveness claim fails.

In his second issue, Appellant asserts that trial counsel was ineffective 

for failing to consult with him regarding videotape surveillance evidence from 

nearby security cameras that the Commonwealth provided in discovery. 

According to Appellant, “[he] continually requested Trial Counsel to allow 

[him] to review the video that was recorded from the alleged crime scene. 

In an effort to assist in his own defense, [Appellant] wished to review the 

video so as to discuss any and all inconsistencies with Trial Counsel.” 

Appellant’s Brief at 12.

The PCRA court first summarized the pertinent testimony from the 

PCRA hearing:
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At the PCRA hearing, [Appellant] asserted that he told 

[trial counsel] of a videotape, but [trial counsel] told him 

he could not play the video, and they would still have to

prove who was on the video. [Appellant] claimed that the 

video was played during trial, and this was the first time 

he saw the video. However, Appellant asked [trial 

counsel] to see the video prior to trial. [Trial counsel] did 

not recollect if [Appellant] ever requested the video.

PCRA Court Opinion, 3/13/15, at 7.

The PCRA court then explained its reasons for rejecting this 

ineffectiveness claim:

Once again, we cannot find [trial counsel] ineffective. 

At trial, a video was played from the bar establishment of 

the night of the incident, and Officer Keith Ulrich testified 

that Appellant was displayed on the video. Despite the 

video and the police officer’s testimony, [Appellant] still 

maintained that he was at home with his grandmother and 

aunt the night of the incident. Therefore, it was for the 

jury to weigh the probative value of the video and to 

evaluate the credibility of the witnesses. The finder of fact 

is free to believe all, part, or none of the evidence. The 

fact finder makes credibility determinations. It was up to 

the jury to decide if [Appellant] was at home the night of 

the incident. The jury was free to believe the video 

evidence, and it was free to reject the testimony that 

Appellant was home that night. The fact that [trial 

counsel] may or may not have consulted with [Appellant] 

about this videotape prior to trial does not mean that the 

outcome of the trial would have been different. Rather, it 

only suggests that had Appellant seen a video that 

depicted himself not at home that night, then he would 

have been more likely to change his account of his 

whereabouts that night for trial. This is not grounds to 

find trial counsel ineffective.

PCRA Court Opinion, 3/13/15, at 7-8 (citations omitted).
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Once again, our review of the record supports the PCRA court’s 

conclusion that Appellant failed to establish prejudice. Travaglia, supra. 

Indeed, when he testified at trial, Appellant challenged Officer Ulrich’s 

testimony that Appellant was the person depicted in the video based on the 

officer’s description of certain body tattoos. See N.T., 3/16/13, at 119-20. 

As stated by the PCRA court, the fact that Appellant may now believe that an 

alibi was not his strongest defense, does not render trial counsel’s assistance 

ineffective. See Commonwealth v. Fisher, 813 A.2d 761, 767 (Pa. 2002) 

(reiterating “[s]peculation by hindsight that a different strategy might 

possibly have been successful is not the test which establishes 

ineffectiveness of counsel”). Thus, Appellant’s second issue fails.

In his third and final claim of ineffectiveness, Appellant contends that 

trial counsel was ineffective “for failing to thoroughly discuss his appellate 

rights.” Appellant’s Brief at 15. According to Appellant, trial counsel was 

ineffective because he failed to communicate with Appellant, and thus failed 

to raise “many claims he wished . . . to pursue on his appeal.” Id. at 18.

The PCRA court first discussed the pertinent testimony presented at 

the PCRA hearing:

At the PCRA hearing, [Appellant] testified that trial 

counsel stated that he was only appealing the case 

because he was obligated and Appellant was making him 

do it. [Appellant] indicated that [trial counsel] told him 

the appeal was basically worthless, and [trial counsel] did 

not discuss what issues [Appellant] wanted to raise on 

appeal. [Trial counsel] testified that he did file an appeal 

and concise statement [of errors complained of on appeal] 

on behalf of [Appellant], but [trial counsel] suffered an 
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injury, and [new appellate counsel] was appointed. [Trial 

counsel] testified that had he remained on appeal, he 

would have filed a no-merit letter. [Trial counsel] testified 

that he did raise the pretrial issue on appeal.

PCRA Court Opinion, 3/13/15, at 8.

The PCRA court then explained why Appellant’s claim was without 

merit:

Once again, we find that [trial counsel] was not 

ineffective. [Trial counsel] perfected an appeal to the 

Superior Court where he raised the pretrial ruling. 

However, he could not continue representation due to an 

injury. Thereafter, [new appellate counsel] took over. The 

Superior Court affirmed the judgment of sentence. This 

does not rise to the level of ineffectiveness.

Id. 

We agree. A review of the record reveals that “due to the 

unavailability of [trial counsel],” the trial court appointed new appellate 

counsel by order entered May 7, 2013. We note that Appellant does not 

challenge the effectiveness of new appellate counsel, who completed 

Appellant’s appeal process.

In his final issue, Appellant asserts that the trial court imposed an 

illegal sentence upon him based on the United States Supreme Court’s 

recent ruling in Alleyne v. United States, 133 S.Ct. 2151 (2013). In 

Alleyne, the high court held that “[m]andatory minimum sentences increase 

the penalty for a crime . . . . [so] any fact that increases the mandatory 

minimum is an ‘element’ [of the crime] that must be submitted to the jury.” 

Alleyne, 133 S.Ct. at 2155. 
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According to Appellant:

In light of the holding in Alleyne, supra, [Appellant] 

avers that his sentence is illegal as no factfinder 

determined beyond a reasonable doubt whether [he] 

utilized a firearm in the course of the alleged assault. 

Since the [alleged] [sic] use of a firearm in the course of 

the alleged assault was deemed a “sentencing factor” 

rather than an “element” of the crime, the imposition of 

the five (5)-year mandatory minimum sentence for 

Aggravated Assault under 18 [Pa.C.S.A.] § 2702(a)(4) 

violated [Appellant’s Due Process rights.

Since [Appellant’s] right to due process has been 

violated, [Appellant’s] rights should be reinstated.

Appellant’s Brief at 20.

Initially, because an issue involving the alleged illegality of a sentence 

can be raised at any time, we reject the Commonwealth’s assertion that 

Appellant waived this issue by failing to raise it in his Pa.R.A.P. 1925(b) 

statement. See Commonwealth’s Brief at 7. However, our review of 

Appellant’s claim is impeded because a transcript of Appellant’s sentencing 

hearing is not in the certified record. See generally Commonwealth v. 

Preston, 904 A.2d 1 (Pa. Super. 2006) (en banc).1

Nevertheless, a review of the record before us contradicts Appellant’s 

Alleyne claim. In Appellant’s sentencing memorandum, trial counsel 

____________________________________________

1 Although not obligated to do so, we communicated with the county 

prothonotary and were informed that the sentencing hearing was never 

transcribed.
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stated: “[T]he offense gravity score to be assigned to Count Two 

[(aggravated assault)] is 10. With a prior record score of four, the 

sentencing guidelines applicable to Count Two are 66 to 78 months.” 

Sentencing Memorandum, 3/28/13, at 4. In a footnote, trial counsel further 

stated: “As a result of [Appellant’s] prior record score, the sentencing 

guidelines exceed the mandatory minimum otherwise applicable under 42 

[Pa.C.S.A. §] 9712.” Id. 

The trial court imposed a minimum sentence of 72 months upon 

Appellant for his aggravated assault conviction. Thus, our review of the 

record supports the Commonwealth’s averment that Appellant “was not 

sentenced to a ‘mandatory sentence’”, but “was sentenced firmly within the 

standard range of the sentencing guidelines.” Commonwealth’s Brief at 7. 

Finally, although it appears the trial court included a weapons enhancement 

to the applicable sentencing guidelines, this fact does not invoke the 

application of Alleyne. See Commonwealth v. Buterbaugh, 91 A.3d 

1247, 1270 n.10 (Pa. Super. 2014) (en banc).

For the foregoing reasons, the PCRA court correctly concluded that 

Appellant’s three claims of trial counsel ineffectiveness did not entitle him to 

post-conviction relief. Additionally, because our review of the record does 

not support Appellant’s illegal sentence claim, we affirm the PCRA court’s 

denying relief.

Order affirmed. 

Judge Bender joins the memorandum.
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Judge Olson concurs in the result.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 8/18/2015