J-S17012-16 

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*Former Justice specially assigned to the Superior Court. 

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA 

 Appellee 

v. 

DAVID R. DARCANGELO 

 Appellant No. 694 WDA 2015 

Appeal from the PCRA Order April 7, 2015 

In the Court of Common Pleas of Cambria County 

Criminal Division at No(s): CP-11-CR-0001041-2010 

BEFORE: GANTMAN, P.J., SHOGAN, J., and FITZGERALD, J.* 

MEMORANDUM BY GANTMAN, P.J.: FILED SEPTEMBER 02, 2016 

 Appellant, David R. Darcangelo, appeals from the order entered in the 

Cambria County Court of Common Pleas, which denied his petition filed 

pursuant to the Post Conviction Relief Act (“PCRA”).

1

 We affirm in part and 

reverse in part the order denying PCRA relief, vacate the judgment of 

sentence, and remand for resentencing. 

 The relevant facts and procedural history of this case are as follows. 

The Commonwealth charged Appellant with various drug-related offenses for 

his involvement in a cocaine trafficking operation over a period of 

approximately two years. On the eve of trial, the Commonwealth offered 

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1

 42 Pa.C.S.A. §§ 9541-9546. 
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Appellant a plea deal of an aggregate term of five (5) to ten (10) years’ 

incarceration, which Appellant rejected. On November 10, 2010, a jury 

convicted Appellant of multiple counts of possession of a controlled 

substance with intent to deliver (“PWID”), delivery of a controlled substance, 

criminal use of communication facility, and conspiracy. The court sentenced 

Appellant on March 30, 2011, to consecutive mandatory minimum terms of 

incarceration of five (5) to ten (10) years for PWID count one and seven (7) 

to ten (10) years for PWID count four, pursuant to 18 Pa.C.S.A. § 7508.2 

The court ran sentences for eighteen other charges concurrently and 

imposed no further penalty for the remaining charges. Thus, Appellant 

received an aggregate sentence of twelve (12) to twenty (20) years’ 

imprisonment. This Court affirmed the judgment of sentence on October 3, 

2012, and the Pennsylvania Supreme Court denied allowance of appeal on 

May 15, 2013. See Commonwealth v. Darcangelo, No, 857 WDA 2011, 

unpublished memorandum (Pa.Super. filed October 3, 2012), appeal denied, 

620 Pa. 695, 67 A.3d 793 (2013). On August 12, 2014, Appellant timely 

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2

 Appellant’s term of seven (7) to ten (10) years’ incarceration for PWID 

count four did not violate 42 Pa.C.S.A. § 9756(b), even though the minimum 

term of incarceration exceeded the maximum term by more than one-half. 

See 42 Pa.C.S.A. § 9756(b)(1) (stating: “The court shall impose a minimum 

sentence of confinement which shall not exceed one-half of the maximum 

sentence imposed”); Commonwealth v. Hockenberry, 689 A.2d 283 

(Pa.Super. 1997), appeal denied, 548 Pa. 645, 695 A.2d 784 (1997) 

(holding defendant’s sentence of seven to ten years’ incarceration was 

permissible under Section 7508 because prefatory language in Section 7508 

carved out exception to general rule set forth in Section 9756(b)). 
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filed a pro se PCRA petition. The PCRA court appointed counsel, who filed an 

amended petition. Following a hearing, the court denied Appellant’s petition 

on April 7, 2015. Appellant filed a timely notice of appeal on April 23, 2015. 

The PCRA court ordered Appellant to file a concise statement of errors 

complained of on appeal per Pa.R.A.P. 1925(b), and Appellant timely 

complied. 

 Appellant raises the following issue for our review: 

WHETHER THE PCRA COURT ERRED WHEN IT FOUND THAT 

TRIAL COUNSEL WAS NOT INEFFECTIVE FOR FAILING TO 

PROVIDE [APPELLANT] WITH A COPY OF DISCOVERY 

MATERIALS PRIOR TO TRIAL? 

(Appellant’s Brief at 1). 

 Appellant argues trial counsel failed to let him view or obtain a copy of 

the discovery packet turned over by the Commonwealth prior to trial. 

Appellant contends counsel’s withholding of the discovery materials 

prevented Appellant from making an informed decision as to whether to 

accept the Commonwealth’s plea offer of five to ten years’ incarceration. 

Appellant asserts trial counsel had no reasonable basis for denying him 

access to the discovery materials. Appellant submits there was no real risk 

of public dissemination of the information because the Commonwealth 

already had access to and knowledge of the contents. Appellant likewise 

maintains there was no risk of loss of the discovery packet because it was on 

a CD, which counsel could have easily copied and given to Appellant. 

Appellant claims he would have accepted the Commonwealth’s plea offer and 
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not gone to trial if he had known the extent of the evidence against him as 

reflected in the discovery packet. Appellant concludes counsel was 

ineffective for failing to provide him with a copy of the discovery materials. 

We disagree. 

 Our standard of review of the denial of a PCRA petition is limited to 

examining whether the evidence of record supports the court’s 

determination and whether its decision is free of legal error. 

Commonwealth v. Conway, 14 A.3d 101, 108 (Pa.Super. 2011), appeal 

denied, 612 Pa. 687, 29 A.3d 795 (2011). This Court grants great deference 

to the findings of the PCRA court if the record contains any support for those 

findings. Commonwealth v. Boyd, 923 A.2d 513, 515 (Pa.Super. 2007), 

appeal denied, 593 Pa. 754, 932 A.2d 74 (2007). We owe no deference, 

however, to the court’s legal conclusions. Commonwealth v. Ford, 44 

A.3d 1190, 1194 (Pa.Super. 2012). 

 The law presumes counsel has rendered effective assistance. 

Commonwealth v. Williams, 597 Pa. 109, 950 A.2d 294 (2008). When 

asserting a claim of ineffective assistance of counsel, a petitioner is required 

to make the following showing: (1) the underlying claim is of arguable merit; 

(2) counsel had no reasonable strategic basis for his 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. 

Commonwealth v. Kimball, 555 Pa. 299, 312, 724 A.2d 326, 333 (1999). 
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The failure to satisfy any prong of the test for ineffectiveness will cause the 

claim to fail. Williams, supra. 

 “The threshold inquiry in ineffectiveness claims is whether the 

issue/argument/tactic which counsel has foregone and which forms the basis 

for the assertion of ineffectiveness is of arguable merit....” Commonwealth 

v. Pierce, 537 Pa. 514, 524, 645 A.2d 189, 194 (1994). “Counsel cannot 

be found ineffective for failing to pursue a baseless or meritless claim.” 

Commonwealth v. Taylor, 933 A.2d 1035, 1042 (Pa.Super. 2007), appeal 

denied, 597 Pa. 715, 951 A.2d 1163 (2008) (quoting Commonwealth v. 

Poplawski, 852 A.2d 323, 327 (Pa.Super. 2004)). 

Once this threshold is met we apply the “reasonable basis” 

test to determine whether counsel’s chosen course was 

designed to effectuate his client’s interests. If we conclude 

that the particular course chosen by counsel had some 

reasonable basis, our inquiry ceases and counsel’s 

assistance is deemed effective. 

Pierce, supra at 524, 645 A.2d at 194-95 (internal citations omitted). 

Prejudice is established when [a defendant] demonstrates 

that counsel’s chosen course of action had an adverse 

effect on the outcome of the proceedings. The defendant 

must show that there is a reasonable probability that, but 

for counsel’s unprofessional errors, the result of the 

proceeding would have been different. A reasonable

probability is a probability sufficient to undermine 

confidence in the outcome. In [Kimball, supra], we held 

that a “criminal defendant alleging prejudice must show 

that counsel’s errors were so serious as to deprive the 

defendant of a fair trial, a trial whose result is reliable.” 

Commonwealth v. Chambers, 570 Pa. 3, 21-22, 807 A.2d 872, 883 

(2002) (some internal citations and quotation marks omitted). 
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 Pennsylvania Rule of Criminal Procedure 573(B)(1) provides: 

Rule 573. Pretrial Discovery and Inspection 

* * * 

(B) Disclosure by the Commonwealth.

(1) Mandatory. In all court cases, on request by the 

defendant, and subject to any protective order which the 

Commonwealth might obtain under this rule, the 

Commonwealth shall disclose to the defendant’s attorney 

all...requested items or information, provided they are 

material to the instant case. The Commonwealth shall, 

when applicable, permit the defendant’s attorney to

inspect and copy or photograph such items. 

* * * 

Pa.R.Crim.P. 573(B)(1). 

 Instantly, the Commonwealth turned over discoverable material to trial 

counsel in compliance with Rule 573(b)(1). Appellant cites no Pennsylvania 

rules or case law to support his claim that counsel had a duty to provide the 

physical discovery materials or a copy of the materials to Appellant.3 

Therefore, Appellant’s issue lacks arguable merit. See Pierce, supra. 

 Further, trial counsel testified at the PCRA hearing that he traditionally 

does not give his clients the actual discovery material. Counsel explained 

this practice was intended to prevent loss of the documents or public 

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3

 Pennsylvania federal courts have held counsel has no duty to provide a 

defendant with his own copy of discovery materials. See, e.g., Williams v. 

Dark, 844 F.Supp. 210, 213-14 (E.D.Pa. 1993) (stating: “A defendant has 

no independent right to his own copy of discoverable documents...when 

these documents have been provided to defense counsel”). 
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dissemination of incriminating information. Counsel also confirmed he 

consulted with Appellant regarding the pertinent information in the discovery 

packet, and they discussed the risks of going to trial. Thus, the PCRA court 

properly concluded counsel’s actions had a reasonable strategic basis. See 

id. 

 With respect to the prejudice prong, Appellant fails to identify any 

information in the discovery packet he was unaware of pretrial, which would 

have persuaded him to accept the plea deal offered by the Commonwealth. 

The PCRA court found trial counsel had adequately informed Appellant of the 

risks of going to trial. Further, Appellant admitted that after his arrest, he 

received and reviewed the grand jury presentment, which mentioned the 

testimony of multiple witnesses. Appellant also was present at the 

preliminary hearing. The prosecutor testified at the PCRA hearing that the 

quantity and quality of the Commonwealth’s evidence was reflected in the 

grand jury presentment and the preliminary hearing testimony. Therefore, 

Appellant failed to establish he was prejudiced by his inability to obtain a 

copy of the discovery packet. See Chambers, supra. Based on the 

foregoing, Appellant’s challenge to counsel’s effectiveness merits no relief. 

 Nevertheless, we observe in the certified record that the trial court 

imposed mandatory minimum sentences for several of Appellant’s 

convictions, pursuant to 18 Pa.C.S.A. § 7508. At the time of Appellant’s 

sentencing, Section 7508(a)(2)(ii) established a mandatory minimum 
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sentence of five (5) years’ imprisonment for PWID, where the aggregate 

weight of the controlled substance was between ten and one hundred grams, 

and at the time of sentencing, the defendant had been convicted of another 

drug trafficking offense. 18 Pa.C.S.A. § 7508(a)(2)(ii). If the aggregate 

weight of the controlled substance exceeded one hundred grams, and the 

defendant had a prior conviction for a drug trafficking offense, the 

mandatory minimum sentence was seven (7) years’ imprisonment. 18 

Pa.C.S.A. § 7508(a)(2)(iii). Section 7508(b) stated its provisions shall not 

be an element of the crime and their applicability shall be determined by the 

court at sentencing by a preponderance of the evidence. 18 Pa.C.S.A. § 

7508(b). 

 In Alleyne v. U.S., ___ U.S. ___, 133 S.Ct. 2151, 186 L.Ed.2d 314 

(2013), decided on June 17, 2013, the United States Supreme Court 

expressly held that any fact increasing the mandatory minimum sentence for 

a crime is considered an element of the crime to be submitted to the factfinder and found beyond a reasonable doubt. Alleyne, supra. This Court 

later addressed the constitutionality of a mandatory minimum sentencing 

statute containing language similar to Section 7508, in Commonwealth v. 

Newman, 99 A.3d 86 (Pa.Super. 2014) (en banc). Newman involved an 

Alleyne sentencing issue that could not have been initially raised on direct 

appeal, because the defendant’s appeal had been resolved on June 12, 

2013, five days before Alleyne was decided. So, the defendant filed a 
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petition for reconsideration/reargument, which this Court granted. Relying 

on Alleyne, Newman held that 42 Pa.C.S.A. § 9712.1 (requiring imposition 

of mandatory minimum sentence for certain drug offenses committed with 

firearms) could no longer pass constitutional muster as it “permits the trial 

court, as opposed to the jury, to increase a defendant’s minimum sentence 

based upon a preponderance of the evidence that the defendant was dealing 

drugs and possessed a firearm, or that a firearm was in close proximity to 

the drugs.” Id. at 98. Newman further held (1) the non-offending 

provisions of Section 9712.1 were not severable and the statute was 

unconstitutional in its entirety; (2) a sentencing challenge premised on 

Alleyne implicates the legality of the sentence and cannot be waived. Id.

at 90, 101. 

In a subsequent decision filed on November 21, 2014, this Court 

extended the logic of Alleyne and Newman to Section 7508, declaring the 

statute unconstitutional in its entirety. See Commonwealth v. Fennell, 

105 A.3d 13 (Pa.Super. 2014), appeal denied, ___ Pa. ___, 121 A.3d 494 

(2015). See also Commonwealth v. Hopkins, ___ Pa. ___, 117 A.3d 247 

(2015) (declaring mandatory minimum statute at 18 Pa.C.S.A. § 6317 

(drug-free school zones) unconstitutional in its entirety under Alleyne, 

where that statute stated its provisions were not elements of crime and 

applicability of statute should be determined at sentencing by preponderance 

of evidence). 
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 In Commonwealth v. Ruiz, 131 A.3d 54 (Pa.Super. 2015), this Court 

reiterated the Newman Court’s declarations: (1) an Alleyne claim is a 

nonwaivable challenge to the legality of sentence; and (2) Alleyne

announced a new constitutional rule that applied to all cases pending on 

direct review when Alleyne was decided. Id. at 59-60 (citing Newman, 

supra at 90). Based on those principles, Ruiz clarified that a defendant 

could also raise an Alleyne challenge in a timely PCRA petition so long as 

his direct appeal from the judgment of sentence was still pending when 

Alleyne was decided. Id. at 59-60. 

 Recently in Commonwealth v. Washington, ___ A.3d ___, 2016 WL 

3909088 (Pa. filed July 9, 2016), the Pennsylvania Supreme Court 

addressed a situation in which the defendant raised an Alleyne claim in a 

timely PCRA petition but his judgment of sentence had become final prior to 

the Alleyne decision. The Washington Court stated: 

[A] new rule of law does not automatically render final, 

pre-existing sentences illegal. A finding of illegality 

concerning such sentences may be premised on such a

rule only to the degree that the new rule applies 

retrospectively. In other words, if the rule simply does not 

pertain to a particular conviction or sentence, it cannot 

operate to render that conviction or sentence illegal. ... 

* * * 

[N]ew constitutional procedural rules generally pertain to 

future cases and matters that are pending on direct review 

at the time of the rule’s announcement. 

Id. at *3-4 (Pa. 2016) (emphasis added). See also id. at *4 (stating: “[I]f 
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a new constitutional rule does not apply, it cannot render an otherwise final 

sentence illegal”). The Washington Court applied the retroactivity analysis 

delineated in Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 

334 (1989), and determined the new constitutional rule announced in 

Alleyne is not a substantive or watershed procedural rule that would 

warrant retroactive application. Washington, supra. The Court held the 

defendant was not entitled to retroactive application of Alleyne because his 

judgment of sentence had become final before Alleyne was decided. Id. 

 Instantly, the trial court sentenced Appellant on March 30, 2011, to 

mandatory minimum terms of incarceration for several of his drug offenses, 

pursuant to Section 7508. Alleyne was decided thirty-three days after the 

Pennsylvania Supreme Court had denied Appellant’s petition for allowance of 

appeal on May 15, 2013, during the 90-day window Appellant had to file a 

petition for writ of certiorari with the United States Supreme Court. See

U.S.Sup.Ct.R. 13 (providing petition for writ of certiorari must be filed within 

90 days after entry of order by state court of last resort denying 

discretionary review). Appellant’s judgment of sentence did not become 

final until August 13, 2013, after Alleyne became law on June 17, 2013, but 

before Fennell declared Section 7508 unconstitutional in its entirety by 

virtue of Alleyne on November 21, 2014. Appellant timely filed his PCRA 

petition on August 12, 2014. See 42 Pa.C.S.A. § 9545(b)(1), (b)(3) (stating 

PCRA petition must be filed within one year of date underlying judgment 
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becomes final; judgment is deemed final at conclusion of direct review or at 

expiration of time for seeking review). Because Appellant’s judgment of 

sentence was not yet final when Alleyne was decided on June 17, 2013, we 

elect to review sua sponte the legality of Appellant’s mandatory minimum 

sentences in light of Alleyne and its Pennsylvania progeny. See 

Commonwealth v. Edrington, 780 A.2d 721 (Pa.Super. 2001) (explaining 

appellate court can raise legality of sentence issue sua sponte, assuming 

court has proper jurisdiction).4 Alleyne applies to Appellant’s case, and he 

is entitled to review and relief under Ruiz, supra. See also Fennell, 

supra. 

 The present matter is distinguishable from Washington, which 

concerned the retroactive application of Alleyne to cases where the 

defendant’s judgment had already become final before the Alleyne

decision. Washington did not consider the unique procedural posture 

presented in Ruiz or in the instant case, where a defendant’s Alleyne claim 

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4 Washington did not upset the holding in Newman and Ruiz that an 

Alleyne violation renders a sentence illegal for purposes of waiver analysis. 

Washington stands for the proposition that no Alleyne violation can occur 

in the first place where the defendant’s sentence was imposed and became 

final before Alleyne was decided. In Washington, the Supreme Court 

noted it recently granted allowance of appeal in a separate case to address 

the distinct issue of whether an Alleyne violation implicates the legality of 

sentence for issue preservation purposes. See Washington, supra at *4 

n.6 (citing Commonwealth v. Barnes, ___ Pa. ___, 122 A.3d 1034 

(2015)). Therefore, under current law, the claim that a sentence violates 

Alleyne remains a nonwaivable challenge to the legality of the sentence. 

See Newman, supra; Ruiz, supra. 
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is addressed on collateral review but his direct appeal from the judgment of 

sentence was still pending at the time Alleyne was decided. The 

Washington Court, however, did specifically acknowledge the general 

retroactivity of new constitutional rules to cases pending on direct review at 

the time of the rule’s announcement. See Washington, supra at *2, *4. 

Therefore, Washington does not necessarily foreclose review and relief with 

respect to an Alleyne-based sentencing issue under these unique 

circumstances. 

 Based on the foregoing, we affirm the court’s denial of PCRA relief 

related to Appellant’s claim of ineffective assistance of counsel, but we 

conclude Appellant is entitled to a remand for resentencing without 

application of any unlawful mandatory minimum statute. Accordingly, we 

affirm in part and reverse in part the order denying PCRA relief, vacate the 

judgment of sentence in its entirety, and remand for resentencing without 

imposition of a mandatory minimum term. See Commonwealth v. 

Bartrug, 732 A.2d 1287 (Pa.Super. 1999), appeal denied, 561 Pa. 651, 747 

A.2d 896 (1999) (holding sentencing error in multi-count case normally 

requires appellate court to vacate entire judgment of sentence so trial court 

can restructure its sentencing scheme on remand). 

 Order affirmed in part and reversed in part; judgment of sentence 

vacated; case remanded for resentencing. Jurisdiction is relinquished. 
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Judgment Entered. 

Joseph D. Seletyn, Esq. 

Prothonotary 

Date: 9/2/2016