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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

ALI ELIJAH DAVIS

Appellant No. 457 EDA 2016

Appeal from the PCRA Order February 17, 2014

In the Court of Common Pleas of Northampton County

Criminal Division at No(s): CP-48-CR-0002141-2008

BEFORE: OLSON, OTT and MUSMANNO, JJ.

MEMORANDUM BY OLSON, J.: FILED MARCH 01, 2017

Appellant, Ali Elijah Davis, appeals from the order entered on February 

17, 2014, dismissing his petition filed pursuant to the Post Conviction Relief 

Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. Counsel filed with this Court a 

petition to withdraw from further representation and a no-merit letter 

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

Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc). 

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

dismissal of Appellant’s PCRA petition.

The PCRA court summarized the facts and procedural history of this 

case as follows:

[O]n November 27, 2007, [Appellant] along with three 

co-defendants entered the [victims’] residence [] in the City 

of Easton, Northampton County, Pennsylvania. [Appellant] 

transported his co-defendants to the residence in his 
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mother’s vehicle. [Appellant], along with his three codefendants entered the residence. Testimony established 

that three of this group converged upon an upstairs 

bedroom where they open fired in an “execution style” 

killing of [] three individuals, one adult male and two adult 

females. The testimony adduced at trial indicated that 

shortly before [Appellant] entered the residence, he was 

handed a handgun of the same caliber that was used in the 

“execution style” homicides.

Following a jury trial, [Appellant] was convicted on January 

25, 2010 of three counts of [f]irst [d]egree [m]urder, 18 

[Pa.C.S.A.] § 2502(a) and [c]onspiracy to [c]ommit 

[m]urder, 18 [Pa.C.S.A.] § 903(a)(1). The jury did not find 

the necessary support for the imposition of the death 

penalty. As a result, [the trial court] sentenced [Appellant] 

on January 27, 2010 to three mandatory life sentences of 

incarceration without the possibility of parole to run 

consecutive to each other. 

* * *

[Appellant] filed post-sentence motions which were 

subsequently denied by [the trial court]. Thereafter, 

[Appellant] filed a direct appeal to [this] Court [] on August 

9, 2010. [We affirmed Appellant’s] judgment of sentence [] 

on July 18, 2011. Commonwealth v. Davis, 32 A.3d 272 

(Pa. Super. 2010) (unpublished memorandum). 

[Appellant’s] petition for allowance of appeal was denied by 

the Supreme Court of Pennsylvania on May 30, 2012. 

Commonwealth v. Davis, 47 A.3d 844 (Pa. 2012). On 

July 30, 2012, [Appellant] filed a petition for collateral relief 

pursuant to the PCRA wherein he raised the ineffectiveness 

of trial counsel. [The PCRA court] appointed Christopher 

Brett, Esquire to represent [Appellant] in his PCRA 

proceedings. A PCRA hearing was held [] on January 15, 

2014.1 On February 17, 2014, [the PCRA court] issued an 

[o]rder and accompanying [s]tatement of [r]easons 

dismissing [Appellant’s] PCRA petition. A copy of the 

____________________________________________

1 The certified record also reveals that there was another evidentiary hearing 

held on January 22, 2013.
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[o]rder dismissing [Appellant’s] PCRA petition was “[h]and 

[d]elivered” to Attorney Brett, counsel of record for 

[Appellant] on February 18, 2014. No timely appeal was 

filed by Attorney Brett on behalf of [Appellant] following the 

dismissal of his PCRA petition.

PCRA Court Opinion, 3/12/2015, at 1-3 (record citations omitted).

Thereafter, Appellant pursued reinstatement of his direct appeal rights 

with both the PCRA court and this Court. The PCRA court appointed counsel 

to represent Appellant. Eventually, on January 15, 2016, the PCRA court 

entered an order reinstating Appellant’s right to appeal from the denial of his 

first PCRA petition on February 17, 2014. This timely appeal resulted.2

PCRA counsel determined that there were no meritorious issues for 

appellate review, counsel notified Appellant of his intent to withdraw from 

representation and filed, in this Court, both a motion to withdraw as counsel 

and an accompanying “no merit” brief pursuant to Turner/Finley. See

Commonwealth v. Doty, 48 A.3d 451, 454 (Pa. Super. 2012). Appellant 

____________________________________________

2

 Counsel for Appellant filed a notice of appeal on January 29, 2016. On 

February 4, 2016, the PCRA court entered an order directing counsel to file a 

concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 

1925(b). Counsel complied timely on February 23, 2016. We further note 

that Appellant also filed the following pro se documents: a notice of appeal, 

an application for reinstatement of direct appeal rights nunc pro tunc, and a 

Rule 1925(b) concise statement. On February 10, 2016, the PCRA court 

entered an order that recognized the pro se filings, but then correctly 

declined to take action. We remind Appellant that hybrid representation is 

not permitted in Pennsylvania and when represented by counsel, pro se

filings are legal nullities. See Commonwealth v. Ali, 10 A.3d 282 (Pa. 

2010). The PCRA court issued an opinion pursuant to Pa.R.A.P. 1925(a) on 

February 29, 2016, relying on its prior decisions issued on February 17, 

2014 and March 12, 2015.
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filed a pro se response to the petition to withdraw as counsel on July 18, 

2016. 

Prior to reviewing the merits of this appeal, we first decide whether 

counsel has fulfilled the procedural requirements for withdrawing as counsel. 

Doty, 48 A.3d at 454. As we have explained:

Counsel petitioning to withdraw from PCRA representation 

must proceed ... under Turner, supra and Finley, supra

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.

Id.

Here, we find all of the above-mentioned procedural requirements 

have been satisfied. Counsel filed a no-merit brief and petition to withdraw 

as counsel with this Court. On June 21, 2016, by per curiam order of this 

Court, we directed Appellant’s counsel to provide the Prothonotary with 
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copies of the letter to Appellant informing him of his right to retain counsel 

or proceed pro se in this appeal. While we did not receive a copy of the 

letter from counsel, Appellant filed a pro se response to the no-merit brief 

and attached a copy of a letter from counsel, dated June 8, 2016, informing 

Appellant of his right to retain counsel or proceed pro se. Hence, because 

Appellant received a copy of the letter, we conclude that the Turner/Finley

requirements were met. We now undertake our own review of the case to 

consider whether the PCRA court erred in dismissing Appellant’s PCRA 

petition and to determine whether the record supports any other issues of 

potential merit.

Counsel’s Turner/Finley brief reviews the claims presented in 

Appellant’s July 30, 2012 PCRA petition, listing them as follows:

a. [Whether Appellant’s] sentence of mandatory life without 

parole was unconstitutional and violated the [United 

States] Supreme Court’s decision in Miller v. Alabama, 

132 S.Ct. 2455 (2012)[?]

b. [Whether a]ppellate counsel was ineffective because he 

did not properly support [A]ppellant’s arguments in his 

brief[?]

c. [Whether a]t the PCRA hearing on January 22, 2013, 

PCRA counsel Brett pursued an additional claim of 

ineffective assistance of counsel [not presented in the 

PCRA petition] by arguing that trial counsel did not 

properly review a proposed plea agreement with 

[Appellant?]

Appellant’s Brief at 7.
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Our standard of review of a PCRA court's dismissal of a PCRA petition 

is limited to examining whether the PCRA court's determination is supported 

by the record evidence and free of legal error. Commonwealth v. 

Whitehawk, 146 A.3d 266, 269 (Pa. Super. 2016). 

In his first issue presented, Appellant avers that his mandatory 

sentence of life imprisonment is unconstitutional in light of the United States 

Supreme Court’s decision in Miller. “The Miller decision applies to only 

those defendants who were ‘under the age of 18 at the time of their 

crimes.’” Commonwealth v. Furgess, 149 A.3d 90, 94 (Pa. Super. 2016), 

citing Miller, 132 S.Ct. at 2460. Throughout his PCRA petition, Appellant 

concedes that he was 20 years old at the time of the crimes. See PCRA 

Petition, 7/30/2012, at 3 (2 attachments thereto). The PCRA court 

recognized that Appellant “exceeded the age of majority when he committed 

the crimes.” PCRA Court Opinion, 2/17/2014, at 4. The PCRA court also 

rejected Appellant’s alternative argument that the right espoused in Miller

should be extended to young adults, whose biological process is still 

developing. Id. We have rejected this precise argument previously. See 

Commonwealth v. Cintora, 69 A.3d 759, 764 (Pa. Super. 2013) (Miller’s 

holding, that mandatory life without parole for those under the age of 18 at 

the time of their crimes violates the Eighth Amendment's prohibition against 

cruel and unusual punishments, does not extend to PCRA petitioners who 

were 21 and 19 years old, respectively, at time they committed murders for 
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which they were convicted, and cannot serve as basis for PCRA relief). We 

agree with the PCRA court that no relief on this issue is due.

Next, Appellant claims appellate counsel was ineffective for failing to 

develop, or provide sufficient legal support, for several of his arguments on 

direct appeal. More specifically, Appellant alleged in his PCRA petition that 

counsel’s ineffectiveness caused the waiver of claims on direct appeal to this 

Court pertaining to the weight and sufficiency of the evidence, suppression 

of Appellant’s pre-arrest statements, the seizure of his cellular telephone, 

and inflammatory media coverage for lack of legal development. See PCRA 

Petition, 7/30/2012, at 4 (attachments at 5-6).

To be eligible for PCRA relief, the petitioner must prove by a 

preponderance of the evidence that his conviction or sentence resulted from 

one or more of the enumerated circumstances found in Section 9543(a)(2), 

which includes the ineffective assistance of counsel. 42 Pa.C.S.A. 

§ 9543(a)(2)(i).

“Our standard of review requires us to determine whether the ruling of 

the PCRA court is supported by the record and is free of legal error.” 

Commonwealth v. Hutchinson, 25 A.3d 277, 284 (Pa. 2011) (internal 

citation omitted). “The PCRA court's credibility determinations are binding 

on [an appellate court] when they are supported by the record.” Id.

“However, [we apply] a de novo standard of review to the PCRA court's legal 

conclusions.” Id.

We have previously determined:
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It is well-established that counsel is presumed effective, and 

to rebut that presumption, the PCRA petitioner must 

demonstrate that counsel's performance was deficient and 

that such deficiency prejudiced him. To prevail on an 

ineffectiveness claim, the petitioner has the burden to prove 

that (1) the underlying substantive claim has arguable 

merit; (2) counsel whose effectiveness is being challenged 

did not have a reasonable basis for his or her actions or 

failure to act; and (3) the petitioner suffered prejudice as a 

result of counsel's deficient performance. The failure to 

satisfy any one of the prongs will cause the entire claim to 

fail. 

Commonwealth v. Benner, 147 A.3d 915, 919–920 (Pa. Super. 2016) 

(internal citations omitted). Upon review, for the reasons that follow, we 

find no merit to Appellant’s claims that trial counsel was ineffective for failing 

to support legal arguments on direct appeal to this Court. 

Regarding pre-arrest statements made to police, the trial court issued 

a comprehensive, 65-page opinion detailing its reasons for denying 

suppression on December 11, 2009. More specifically, the trial court 

detailed the four separate times police questioned Appellant, but noted that 

each time Appellant was free to leave and not in police custody during the 

interviews and, therefore, not entitled to warnings pursuant to Miranda v. 

Arizona, 384 U.S. 436 (1966). Trial Court Opinion, 12/11/2009, at 43-56. 

On direct appeal, Appellant argued that police questioning amounted 

to interrogations because the officers had underlying information tending to 

implicate Appellant in the crimes. We found that Appellant failed to support 

this argument with legal authority. See Commonwealth v. Davis, 32 A.3d 

272 (Pa. Super. 2010) (unpublished memorandum) at 6. However, we 
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noted that the necessity of Miranda warnings turned on whether the person 

is physically deprived of his freedom or reasonably believes his movement is 

restricted. We determined that Miranda did not apply because the record 

did not demonstrate that he was the subject of custodial interrogation. 

Upon review, we agree that there was no merit to Appellant’s underlying 

claim that statements to police should have been suppressed and, therefore, 

direct appellate counsel was not ineffective for failing to develop these issues 

on direct appeal. 

With regard to the seizure of his cellular telephone, the trial court, in 

its suppression analysis, determined that: (1) police obtained Appellant’s 

cellular telephone number from two witnesses, despite Appellant telling 

police he did not have one; (2) police then called the telephone when 

Appellant answered his door and heard ringing inside the residence; and, (3) 

Appellant admitted the cellular phone was his and voluntarily handed it over 

to police, after the police explained they would obtain a warrant to secure it. 

Id. at 58-60. Even if appellate counsel had more fully developed this issue 

on appeal, it lacks merit, because the evidence showed there was no police 

coercion, no interrogation, and Appellant voluntarily surrendered his cellular 

telephone. Accordingly, counsel cannot be ineffective for failing to develop a 

meritless issue.

Pertaining to news coverage, the trial court determined that Appellant 

failed to proffer evidence that media coverage was sensational, inaccurate, 

slanted, or unduly inflammatory towards Appellant. Trial Court Opinion, 
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8/2/2010, at 11. Moreover, each juror was subject to voir dire and not one 

testified that he or she had a fixed bias against Appellant due to media 

coverage. Id. Thus, the trial court stated that there was no reason for a 

change of venue. Id. On direct appeal, this Court “agree[d] with the trial 

court’s reasoning and [] affirm[ed] its denial of Appellant’s motion for a 

change of venue” because “Appellant ha[d] not advanced meritorious 

grounds for relief.” Id. Based on the foregoing, we concluded there was no 

merit to Appellant’s claim that he was unfairly prejudiced by media 

coverage. Hence, trial counsel effectively raised and presented the claim on 

appeal, which we ultimately determined had no merit.

Finally, we address Appellant’s claim that counsel was ineffective for 

failing to develop weight and sufficiency claims on direct appeal. Upon 

review of the record, the Commonwealth presented overwhelming evidence 

of Appellant’s guilt at trial, including the various statements Appellant made 

to police, the testimony of two eyewitnesses who placed him at the scene of 

the crime with a firearm, and evidence that Appellant drove his 

co-defendants in his mother’s car to and from the scene on the Pennsylvania 

Turnpike. Hence, Appellant’s underlying weight and sufficiency challenges 

lack merit and, thus, afford no grounds for relief on Appellant’s derivative 

ineffectiveness claim. For all of the foregoing reasons, we conclude that 

appellate counsel was not ineffective for failing to more fully develop issues 

that we deemed waived on appeal. 
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In his third issue presented, Appellant contends trial counsel was 

ineffective for failing to communicate and review with him purported plea 

negotiations with the Commonwealth prior to trial. Appellant never raised 

this issue in his original PCRA petition, nor in a formal amendment. 

However, at the PCRA evidentiary hearing held on January 22, 2013, PCRA 

counsel presented a “three-page letter” where “issues were narrowed down.” 

N.T., 1/22/2013, at 3. The PCRA court “ma[de] that part of the record” and 

considered the letter an “amended petition.”3 Id. at 5. However, we can 

glean from the transcript of the January 22, 2013 hearing that one of the 

issues before the PCRA court was trial counsel’s effectiveness regarding plea 

negotiations with Appellant prior to trial. Moreover, the PCRA court held 

another hearing on January 15, 2014, wherein Appellant testified regarding 

the issue of counsel ineffectiveness in relation to plea negotiations. At the 

January 15, 2014 hearing, the PCRA court incorporated trial counsel’s 

testimony from the January 22, 2013 hearing into the record. Ultimately, 

the PCRA court rejected the claim because it credited trial counsel’s 

testimony that he consulted with Appellant about plea negotiations. 

____________________________________________

3

 This letter, however, is not contained in the certified record or otherwise 

noted on the docket. The incredibly convoluted procedural history of this 

case has not been made easier by the PCRA court. The PCRA court 

consistently accepted informal filings and oral amendments to the various 

pro se PCRA petitions. As an appellate court, we review claims upon a cold 

record. It is imperative that we have all of the proper documentation to 

evaluate claims properly on appeal. 
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Regarding plea negotiations, we have stated:

A criminal defendant has the right to effective counsel 

during a plea process as well as during a trial. Allegations 

of ineffectiveness in connection with the entry of a guilty 

plea will serve as a basis for relief only if the ineffectiveness 

caused the defendant to enter an involuntary or unknowing 

plea. Where the defendant enters his plea on the advice of 

counsel, the voluntariness of the plea depends on whether 

counsel's advice was within the range of competence 

demanded of attorneys in criminal cases.

Commonwealth v. Hickman, 799 A.2d 136, 141 (Pa. Super. 2002).

Here, the PCRA court determined:

The testimony established that the guilty plea offer was to 

an open plea that was meant to resolve all open charges 

against [Appellant] under both his criminal docket 

numbers[4] which involved four charges of homicide. If 

[Appellant] had pled guilty to four counts of [t]hird-[d]egree 

[h]omicide, he would have been exposed to a maximum 

sentence of twenty (20) to forty (40) years consecutively 

for each charge, for a total of eighty (80) to one hundred 

and sixty (160) years of incarceration. However, because it 

was an open plea, the [c]ourt had the discretion to fashion 

an appropriate sentence. In choosing to go to trial, 

[Appellant] advanced his claim of innocence and, therefore,

a plea would not have been appropriate. Further, by opting 

for trial, [Appellant] accepted the risk of a guilty verdict to 

[f]irst-[d]egree [m]urder in order to assert his innocence.

The record establishes that [trial counsel] thoroughly 

explained [the] guilty plea offer to [Appellant] and directed 

six other adults to assist him in helping [Appellant] 

understand the terms, including [Appellant’s] parents, two 

____________________________________________

4

 Appellant was charged with one count of homicide in an unrelated case. 

After the trial in this matter, Appellant pled guilty to first-degree murder in 

that other case and received a life sentence as a result. See PCRA Court 

Opinion, 2/17/2014, at 2.
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basketball coaches, and two court-appointed 

professionals[.] [The trial court found] that the record 

establish[ed] that [Appellant’s] decision to go to trial was 

free and voluntary, and against the advice of everyone who 

spoke with him. This record also suggests that [Appellant’s] 

independent decision to risk trial in the face of the advice by 

his family, professional supporters and attorney erodes the 

assertion that he is a young man who has a weaken[ed] 

intellect, borderline mental retardation and/or that he is a 

follower. Clearly, it was an independent decision based 

upon his evaluation of the risks and rewards. 

PCRA Court Opinion, 2/17/2014, at 10-11. 

Upon review of the record, we discern no abuse of discretion or error 

of law in denying Appellant’s ineffective assistance of counsel claim 

pertaining to plea negotiations. Trial counsel testified that the 

Commonwealth offered Appellant a plea deal to resolve four counts of 

third-degree murder, leaving the sentence open for the trial court to impose. 

N.T., 1/22/2013, 45-47. However, counsel also explained the various 

ranges of sentences that Appellant could receive for both first-degree and 

third-degree murder and told Appellant he had the right to a jury trial. Id. 

Appellant also spoke with family, friends, and his basketball coach prior to 

rejecting the plea negotiation. Id. at 48-49. The PCRA court found trial 

counsel’s testimony credible and we will not usurp that determination. As 

such, Appellant’s final claim lacks merit. 

Moreover, after an independent examination of the certified record, we 

do not find any other issues of potential merit. 

Order affirmed. Counsel’s petition to withdraw granted.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 3/1/2017