J-A24017-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

MICA HORATIO DAWKINS

Appellant No. 1206 WDA 2016

Appeal from the PCRA Order Dated July 22, 2016

In the Court of Common Pleas of Allegheny County

Criminal Division at No(s): CP-02-CR-0001772-2013

BEFORE: MOULTON, J., SOLANO, J., and MUSMANNO, J.

MEMORANDUM BY SOLANO, J.: FILED NOVEMBER 07, 2017

Appellant, Mica Horatio Dawkins, appeals from the order dismissing his 

first petition filed under the Post-Conviction Relief Act (“PCRA”), 42 Pa.C.S. 

§§ 9541-9546. Appellant raises a single issue of trial counsel’s 

ineffectiveness. We affirm.

The PCRA court summarized the procedural history of this case as 

follows:

On February 26-27, 2014, Appellant appeared before the 

Trial Court for a jury trial, at the conclusion of which the jury

found Appellant guilty of possession with intent to deliver heroin, 

two counts of possession of [a] controlled substance, and 

possession of drug paraphernalia; Appellant was found not guilty 

of possession of instruments of crime and criminal conspiracy.

On May 13, 2014, Appellant was sentenced by the Trial 

Court to five to ten years[’] incarceration for possession with 

intent to deliver. Appellant did not file any post sentence 

motions.
J-A24017-17

- 2 -

On March 11, 2015, Appellant filed a pro se motion to 

vacate illegal sentence. Counsel was appointed, and on 

February 3, 201[6], Appellant filed a Post-Conviction Relief Act 

Petition. The Commonwealth filed its Answer on February 23, 

2016. On June 21, 2016, the Trial Court granted Appellant’s 

petition in part and sentenced Appellant to a new sentence [of 

two and a half to five years’ incarceration]. On June 22, 2016, 

the Trial Court filed a notice of intent to dismiss Appellant’s 

remaining PCRA claims, and denied the remainder of the PCRA 

Petition on July 2[2], 2016.

PCRA Ct. Op., 2/21/17, at 3.1

On August 12, 2016, Appellant filed a timely appeal in which he raises 

the following issue:

Whether the trial court erred in denying Appellant’s PostConviction Relief Act Petition without a hearing because trial 

counsel provided ineffective assistance of counsel for not 

objecting when [the] assistant district attorney incorrectly 

argued in [his] opening statement that the Appellant admitted to 

possessing heroin with intent to deliver when no such admission 

was uttered. 

Appellant’s Brief at 4.

“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 evidence of record and free of legal error.” Commonwealth v. 

Wilson, 824 A.2d 331, 333 (Pa. Super. 2003) (en banc), appeal denied, 

839 A.2d 352 (Pa. 2003). The PCRA court has discretion to dismiss a 

petition without a hearing when the court is satisfied that there are no 

genuine issues concerning any material fact, the petitioner is not entitled to 

____________________________________________

1 The Honorable Edward J. Borkowski, sitting as the PCRA court, also 

presided at Appellant’s jury trial.
J-A24017-17

- 3 -

post-conviction collateral relief, and no legitimate purpose would be served 

by further proceedings. Commonwealth v. Blakeney, 108 A.3d 739, 750 

(Pa. 2014). To obtain a 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. Id.

Further, the law presumes counsel has rendered effective assistance. 

Commonwealth v. Rivera, 10 A.3d 1276, 1279 (Pa. Super. 2010). The 

burden of demonstrating ineffectiveness rests on Appellant. Id. To satisfy 

this burden, Appellant must plead and prove by a preponderance of the 

evidence that: “(1) his underlying claim is of arguable merit; (2) the 

particular course of conduct pursued by counsel did not have some 

reasonable basis designed to effectuate his interests; and (3) but for 

counsel’s ineffectiveness, there is a reasonably probability that the outcome 

of the challenged proceedings would have been different.” Commonwealth 

v. Fulton, 830 A.2d 567, 572 (Pa. 2003). Failure to satisfy any prong of the 

test will result in rejection of the appellant’s ineffective assistance of counsel 

claim. Commonwealth v. Jones, 811 A.2d 994, 1002 (Pa. 2002).

Appellant argues that the PCRA court erred in failing to grant him a 

hearing because his claim of trial counsel’s ineffectiveness had arguable 

merit. Appellant’s Brief at 11. Specifically, Appellant asserts that trial 

counsel was ineffective for “failing to object and move for a mistrial when 
J-A24017-17

- 4 -

the assistant district attorney misspoke in his opening statement and stated 

that the Appellant admitted ownership of the heroin and body vest that was 

recovered.” Id. at 11, 14, citing N.T., 2/26-27/14, at 22. Appellant claims 

that because there was no testimony or evidence presented at trial that he 

admitted to possessing the heroin, he was prejudiced by the statement of 

the assistant district attorney, and without the statement, the “the outcome 

of Appellant’s case would have been different as the jury would not have had 

a fixed bias or hostility towards the Appellant at the outset of the case.” Id.

at 17.

In response, both the PCRA court and Commonwealth argue that 

Appellant was not entitled to a hearing or post-conviction relief because the 

assistant district attorney never stated that Appellant admitted to possessing 

heroin. PCRA Ct. Op., 2/21/17, at 9; Commonwealth Brief at 7-9. The 

PCRA court, which – as noted above – also sat as the trial court, explained:

Appellant misstates the record in claiming that the 

Commonwealth stated Appellant admitted to possessing heroin 

with intent to deliver during the opening statement. The 

relevant portion of the opening statement reads as follows:

Based on the testimony that you hear and the 

evidence that you see introduced, you should find beyond 

a reasonable doubt that the defendant and Mr. Nelson 

were engaged in heroin trafficking, that they possessed 

the heroin with intent to deliver and not for personal use, 

that the cash found in the safe and in the apartment were 

proceeds of drug dealing activity, that the defendant 

possessed body armor. You will hear testimony that he 

admitted that the vest was his in conjunction with the 

felony of possessing the heroin with intent to deliver. 

Based on all of this testimony, you should be able to find 
J-A24017-17

- 5 -

beyond a reasonable doubt that the defendant committed 

the crimes charged. 

(T.T. 22). The Commonwealth properly made an argument

based on the evidence to be presented at trial that the jury 

should find Appellant guilty of possessing heroin with intent to 

deliver. The only admission which the assistant district attorney 

ascribed to Appellant was ownership of the vest. The assistance 

district attorney went on to argue that Appellant possessed that 

vest as part of his drug dealing behavior, and based on the 

evidence to be presented the jury should find Appellant guilty. 

These statements were not objectionable, and counsel will not 

be deemed ineffective for failing to raise a meritless objection. 

PCRA Ct. Op., 2/21/17, at 9.

We have reviewed the notes of testimony and agree that Appellant is 

not entitled to relief. At the outset, we note that in addressing the jurors 

prior to trial, the trial court advised, “[a]s I already alluded to, the 

statements and arguments of the attorneys are not made under oath and 

although they are made in good faith, they are not evidence in the case.” 

N.T., 2/26-27/14, at 15. The assistant district attorney’s opening remarks 

followed. For clarity and context, we set forth the assistant district 

attorney’s entire opening statement below:

Thank you, Your Honor. May it please the Court, 

[Appellant’s Counsel], ladies and gentlemen of the jury.

The purpose of my opening statement is basically to give 

you a short roadmap of where a trial will go so you are not 

totally in the dark. You’ve heard the charges. It is a heroin 

case. The defendant was on probation back in November of 

2012. His probation officer went to his house for a routine visit. 

Nobody was home. The house is located in Wilmerding.

As they are leaving the front door, the defendant pulls up 

driving the car. The defendant’s license is under suspension. He 
J-A24017-17

- 6 -

is not permitted to drive a car. They have a conversation with 

him. There is a passenger in the front passenger seat. The 

passenger, Mr. Nelson, goes on into the house.

During the course of the conversation with [Appellant], the 

defendant, they recover in the car a paper bag. In that bag is a 

plastic baggie with a quantity of white powder. Also in that 

baggie are four cardboard boxes each of which are full of what 

you will be hearing described as stamp bags. These were black 

– if you ever bought stamp bags at the Post Office, they hand 

them to you in glassine envelopes with frosted paper. This is the 

sort of paper but it was black. There were 2,400 of these stamp 

bags, 600 per bag.

They go into the house. They go up the stairs to the 

bedroom. They find Mr. Nelson in one of the bedrooms and 

along with Mr. Nelson they recover a black jacket with red 

sleeves which the probation officer seen [sic] the defendant 

wearing a very similar looking jacket in the past. In the pocket 

of that jacket is just a little over two ounces of cocaine, 59.9 

grams – I’m sorry, of heroin – I’m sorry, 59.9 grams of heroin in 

one package. Mr. Nelson is taken into custody. [Appellant] is 

taken into custody.

In that room that is identified as [Appellant’s] bedroom, 

they see a piece of body armor, a bulletproof vest. There is a 

safe that [Appellant] provides the combination to open. Inside 

the safe is $15,207 in cash. There is another $1,250 in cash in a 

drawer. [Appellant] has been under probation supervision for –

I think it was at least a year. The probation officer is going to 

tell you that during that period of time [Appellant] did not have a 

job. You will also learn that the vast bulk of that money was in 

twenty dollar bills. There were 590 twenty dollar bills and 122 

ten dollar bills.

There will be a stipulation that whoever possessed this 

heroin possessed it with the intent to deliver. It wasn’t for their 

own use. This is a massive quantity of heroin. You will hear 

testimony when broken down into the individual stamp bags, 

given that quantity of heroin, you would have roughly 2,900 

individual stamp bags, individual dosage units of heroin that is 

used on the average.
J-A24017-17

- 7 -

Based on the testimony that you hear and the evidence 

that you see introduced, you should find beyond a reasonable 

doubt that [Appellant] and Mr. Nelson were engaged in heroin 

trafficking, that they possessed the heroin with the intent to 

deliver and not for personal use, that the cash found in the safe 

and in the apartment were the proceeds of drug dealing activity, 

that [Appellant] possessed body armor. You will hear 

testimony that he admitted that the vest was his in 

conjunction with the felony of possessing the heroin with 

the intent to deliver. Based on all of this testimony, you 

should be able to find beyond a reasonable doubt that 

[Appellant] committed the crimes charged. 

N.T., 2/26-27/14, at 19-22 (emphasis added).

At trial, the Commonwealth called six witnesses, including Appellant’s 

probation officer, Mark Wilner. Mr. Wilner testified to completing a “walkthrough” of Appellant’s bedroom, where he saw “in an open closet a bullet 

resistant vest and a safe.” N.T., 2/26-27/14, at 49. Mr. Wilner said he 

recognized the vest because he wore one “for his daily duties at work.” Id. 

He testified that Appellant admitted to owning the vest. Id. at 50. He also 

testified that Appellant stated he didn’t have the key for the safe, but knew 

the combination and provided it to Mr. Wilner. Id. at 51. When Mr. Wilner 

used the combination to open the safe, he found a “large amount of U.S. 

currency” which he turned over as evidence. Id. As Appellant emphasizes, 

no testimony or evidence indicated that Appellant admitted to possessing 

heroin. Appellant did not testify, nor did he call any witnesses to testify in 

his defense.

On this record, we find no merit to Appellant’s argument that he was 

prejudiced by trial counsel’s failure to object to the statement of the 
J-A24017-17

- 8 -

assistant district attorney during the opening remarks. First, the trial court 

cautioned the jury that remarks by the attorneys “are not evidence.” N.T., 

2/26-27/14, at 15. A jury is presumed to follow the trial court’s instructions. 

See, e.g., Commonwealth v. Spotz, 716 A.2d 580, 587 (Pa. 1998). 

Second, considered in context, the one sentence of the opening 

argument to which Appellant objects did not say that Appellant admitted 

possessing heroin. After the prosecutor noted that Appellant possessed 

body armor, he added that Appellant “admitted that the vest was his.” The 

rest of the sentence at issue says that the admission was made “in 

conjunction with” the felony proceedings regarding heroin possession. It 

does not say that Appellant admitted to possessing the heroin, and we do 

not believe it reasonably could have been construed in that manner. 

Moreover, even if, as Appellant argues, the jury somehow may have 

interpreted the sentence differently, the evidence subsequently introduced 

by the Commonwealth demonstrated that Appellant admitted only to 

possessing the bullet resistant vest. 

Finally, the Commonwealth, through its six witnesses, presented 

ample inculpatory evidence. The record thus does not show prejudice or a 

reasonable probability of a different outcome had counsel objected to the 

assistant district attorney’s statement. See Commonwealth v. Pierce,

527 A.2d 973, 977 (Pa. 1987) (a defendant raising claim of ineffective

assistance of counsel is required to show actual prejudice — that is, that 
J-A24017-17

- 9 -

counsel’s conduct “had an adverse effect on the outcome of the 

proceedings”). In rejecting a claim for post-conviction relief, the Supreme 

Court in Pierce reasoned:

Even if [the claimed error had merit], we cannot see how it 

affected the outcome of the trial. The uncontradicted, properly 

admitted evidence of Appellant’s guilt was overwhelming, and we 

can find no reasonable probability that [but for the claimed 

error], the result would have been different. Since the prejudice 

question is resolvable, we need not even consider whether 

counsel’s [actions] had a reasonable basis, and the 

ineffectiveness claim can be dismissed.

Id. (emphasis in original). The Pierce reasoning similarly applies to this 

case.2 Because there is no merit to Appellant’s claim for post-conviction 

relief, we affirm the order of the PCRA court.

Order affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 11/7/2017

____________________________________________

2

From our reading of the record as a whole, it is likely that if Appellant’s 

counsel had objected, the assistant district attorney would have rephrased 

his statement to clarify that Appellant admitted to possessing the bullet 

resistant vest, but not the heroin.