J-S04038-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

LEONARD BURNETT 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 179 EDA 2016

Appeal from the PCRA Order December 14, 2015

In the Court of Common Pleas of Philadelphia County 

Criminal Division at No(s): CP-51-CR-0015406-2008

BEFORE: SHOGAN, J., OTT, J. and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.: FILED FEBRUARY 21, 2017

Appellant, Leonard Burnett, appeals from the December 14, 2015, 

order entered in the Court of Common Pleas of Philadelphia County denying 

his first petition filed under the Post Conviction Relief Act (“PCRA”), 42 

Pa.C.S.A. §§ 9541-9546, without an evidentiary hearing. After a careful 

review, we affirm. 

The relevant facts underlying this matter have been cogently set forth 

by the lower court in connection with Appellant’s direct appeal as follows: 

On October 22, 2008[,] at approximately 4:45 p.m., the 

victim[,] Sean Mohon[,] was walking south on South 48th Street 

in Philadelphia. Mr. Mohon passed by Appellant and his codefendant[,] Gregory Stephens, who were walking together 

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*

Former Justice specially assigned to the Superior Court.
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slowly in the same direction as Mr. Mohon. Appellant then 

approached Mr. Mohon from behind, put his arm around Mr. 

Mohon’s neck, and put something hard against Mr. Mohon’s 

back. Mr. Stephens was standing to the left of Mr. Mohon, 

within his peripheral vision. Appellant said he had a gun and 

instructed Mr. Mohon to give him his wallet. Mr. Mohon 

attempted to give just the cash from his wallet, at which point 

Mr. Stephens told him, “hurry up mother f[ ]er” and punched 

him in the jaw. Appellant then took Mr. Mohon’s wallet. 

Appellant and Mr. Stephens then faced Mr. Mohon and 

demanded his debit card PIN number, threatening “to hurt [his] 

family” if he did not give it to them. Mr. Mohon provided a false 

PIN. At this time[,] it was still daylight and Mr. Mohon was able 

to observe the faces of Appellant and his co-defendant from a 

distance of about three feet away.

After getting the false PIN, Appellant and Mr. Stephens ran 

from the scene. Mr. Mohon called 911, and the dispatcher 

relayed Mr. Mohon’s descriptions of the perpetrators over police 

radio. Mr. Mohon described the perpetrators to the dispatcher as 

wearing khaki pants and gray [shirts or] hoodies. Police Officers 

Gregory Tertulien and Adrian Hustler responded to the “flash” 

descriptions, independently spotted Appellant and Mr. Stephens 

on South 51st Street, and together stopped both suspects.

About ten minutes after Mr. M[o]hon called 911, police 

officers arrived at his location and then brought Mr. Mohon to 

view Appellant and Mr. Stephens. An officer told Mr. Mohon that 

they “have guys that match the description.” The officers did 

not tell Mr. Mohon that they had the persons who robbed him, 

nor did they tell Mr. Mohon what to say. Appellant and Mr. 

Stephens were wearing khaki pants and [gray/dark] shirts when 

the officers showed them to Mr. Mohon...[who] immediately and 

unequivocally identified Appellant and Mr. Stephens as the 

individuals who had robbed him minutes earlier. Officer 

Tertulien recovered four dollars from Appellant. Officer Hustler 

recovered a five-dollar bill from Mr. Stephens. 

Trial Court’s Opinion, filed 12/6/11, at 2-3 (citations to record omitted). 

Following his arrest, Appellant, who was represented by Andrew J. 

Heller, Esquire, proceeded to a jury trial, along with Mr. Stephens as his co-
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defendant. At trial, Mr. Mohon again identified Appellant and Mr. Stephens 

as the men who robbed him. At the conclusion of trial, the jury convicted 

Appellant of robbery, 18 Pa.C.S.A. § 3701(a)(1)(ii), and criminal conspiracy, 

18 Pa.C.S.A. § 903, and pursuant to 42 Pa.C.S.A. § 9714(a)(1),1the trial 

court sentenced Appellant to a mandatory minimum term of ten to twenty 

years in prison on each charge, with the sentences to run concurrently.2 

Appellant filed a timely post-sentence motion, which was denied. 

Thereafter, Appellant did not file a timely direct appeal; however, after his 

appeal rights were reinstated nunc pro tunc via a timely-filed PCRA petition, 

he filed an appeal to this Court with the assistance of new counsel, Emily 

Cherniack, Esquire. 

On direct appeal, Appellant contended (1) the trial court erred in 

denying his motion to dismiss pursuant to Pa.R.Crim.P. 600; (2) the 

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1 Section 9714(a)(1) provides, in pertinent part: 

Any person who is convicted in any court of this Commonwealth 

of a crime of violence shall, if at the time of the commission of 

the current offense the person had previously been convicted of 

a crime of violence, be sentenced to a minimum of at least ten 

years of total confinement, notwithstanding any other provision 

of this title or other statute to the contrary.

42 Pa.C.S.A. § 9714(a)(1). 

2 Mr. Stephens was also convicted of robbery and conspiracy. Pursuant to 

Section 9714(a)(1), the trial court sentenced him to ten to twenty years in 

prison for each offense with the sentences to run concurrently. A panel of 

this Court affirmed Mr. Stephens’ judgment of sentence on direct appeal. 

See Commonwealth v. Stephens, 462 EDA 2011 (Pa.Super. filed 

3/22/12) (unpublished memorandum). 
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evidence was insufficient as a matter of law where the identification by Mr. 

Mohon was suggestive and not reliable; and (3) the verdict was against the 

weight of the evidence where the identification by Mr. Mohon was suggestive 

and not reliable. Finding no merit to Appellant’s contentions, and relying 

substantially upon the well-reasoned opinion of the trial court, this Court 

rejected Appellant’s claims. See Commonwealth v. Burnett, 2653 EDA 

2011 (Pa.Super. filed 8/20/12) (unpublished memorandum). Appellant filed 

a petition for allowance of appeal, which our Supreme Court denied on 

March 13, 2013. 

On or about April 8, 2013, Appellant filed a timely pro se PCRA 

petition, and on December 19, 2013, Peter Alan Levin, Esquire, was 

appointed to represent Appellant. On January 9, 2015, Attorney Levin filed 

on behalf of Appellant an amended PCRA petition and supporting 

memorandum of law.3 On April 24, 2015, the Commonwealth filed a 

responsive motion to dismiss the PCRA petition, and on October 26, 2015, 

the PCRA court convened a hearing to permit counsel to present oral 

argument as to whether an evidentiary hearing should be held as to 

Appellant’s amended PCRA petition. See PCRA Court’s Opinion, filed 

4/14/16, at 4. Thereafter, by order entered on December 14, 2015, the 

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3 The record does not reveal the reasons for the two-year delay in counsel’s 

filing of the amended petition. 
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PCRA court denied Appellant’s PCRA petition without an evidentiary hearing. 

This timely, counseled appeal followed. The PCRA court ordered Appellant to 

file a Pa.R.A.P. 1925(b) statement, counsel timely complied on behalf of 

Appellant, and the PCRA court filed a comprehensive Pa.R.A.P. 1925(a) 

opinion. 

Our standard of review from the denial of post-conviction relief “is 

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

the evidence of record and whether it is free of legal error.” 

Commonwealth v. Ousley, 21 A.3d 1238, 1242 (Pa.Super. 2011) (citation 

omitted). This Court “will not disturb findings that are supported by the 

record.” Id. (citation omitted).

Moreover, as it relates to claims of effective assistance of trial counsel, 

we note that when analyzing ineffectiveness claims, we begin with the 

presumption that counsel was effective. Commonwealth v. Spotz, 610 Pa. 

17, 18 A.3d 244 (2011). “[T]he [petitioner] bears the burden of proving 

ineffectiveness.” Commonwealth v. Ligons, 601 Pa. 103, 124, 971 A.2d 

1125, 1137 (2009) (citation omitted). To overcome the presumption of 

effectiveness, a PCRA petitioner must demonstrate 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.” Id. (citation omitted). Regarding 
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prejudice, it must be demonstrated that “but for the act or omission in 

question, the outcome of the proceedings would have been different.” 

Commonwealth v. Rollins, 558 Pa. 532, 542-43, 738 A.2d 435, 441 

(1999) (quotation marks and quotation omitted). A claim of ineffectiveness 

will be denied if the petitioner's evidence fails to meet any of these prongs. 

See id.

Moreover, we need not analyze the prongs of an ineffectiveness claim 

in any particular order. Rather, we may discuss first any prong that an 

appellant cannot satisfy under the prevailing law and the applicable facts 

and circumstances of the case. Commonwealth v. Johnson, --- Pa. ---, 

139 A.3d 1257 (2016). Finally, we emphasize that counsel cannot be 

deemed ineffective for failing to raise a meritless claim. Commonwealth v. 

Jones, 590 Pa. 202, 912 A.2d 268, 278 (2006).

At the outset, we direct Appellant's attention to the Pennsylvania Rules 

of Appellate Procedure which limit a principal brief to 14,000 words, unless 

the brief does not exceed 30 pages. Pa.R.A.P. 2135(a)(1). Where the brief 

exceeds 30 pages, a certificate of compliance with the 14,000 word-count 

limit must be filed. Id. Here, Appellant's brief spans 72 pages, exclusive of 

attachments, and fails to include a certificate of compliance. Rule 2101

underscores the seriousness with which the appellate courts take deviations 

from procedural rules, as it permits us to quash or dismiss an appeal for 

procedural noncompliance. See Pa.R.A.P. 2101. Although we will address 
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Appellant's issues, we admonish counsel for his failure to follow the rules set 

forth by our Supreme Court.

In his first issue,4 Appellant contends trial counsel was ineffective in 

failing to secure an expert witness to testify or author a report regarding the 

reliability of eyewitness identification. Appellant asserts that “[t]he 

overwhelming body of scientific research has established beyond any doubt 

that eyewitness testimony has the potential to be dangerously unreliable[;]”

“eyewitness misidentification remains the leading cause of false convictions 

in the United States[;]” “[t]he unreliability of eyewitness testimony is now 

widely recognized in the psychology literature and by law enforcement[;]” 

and “expert testimony relevant to witness misidentification has general 

acceptance in the relevant scientific community and the courts.” Appellant’s 

Brief at 25-26, 31 (internal quotations marks and citations omitted). 

Appellant indicates that these precepts are particularly of concern where, as 

here, the victim and perpetrators are strangers to each other, as well as the 

fact the victim is Caucasian and the perpetrators are African-American. See

id. at 29. Accordingly, he argues trial counsel was ineffective in failing to 

present at trial the testimony or report of an expert witness to explain and 

educate the jury about the limitations of eyewitness identifications. See id. 

at 27. We conclude Appellant is not entitled to relief.

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4 We have renumbered Appellant’s issues for the ease of discussion.
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Historically, Pennsylvania maintained a strict bar against the admission 

of expert testimony relating to eyewitness identification, holding that such 

testimony would intrude upon the jury’s basic function of making credibility 

determinations. See, e.g., Commonwealth v. Spence, 534 Pa. 233, 627 

A.2d 1176 (1993). The Pennsylvania Supreme Court recently overturned 

this per se exclusionary rule in Commonwealth v. Walker, 625 Pa. 450, 

92 A.3d 766 (2014). Therein, our Supreme Court reversed course, holding 

that “the admission of expert testimony regarding eyewitness identification 

is no longer per se impermissible in our Commonwealth[.]” Id. at 495, 92 

A.3d at 792-93. Rather, “trial courts must [now] exercise their traditional 

role in determining the admissibility of [such] expert testimony, including 

pursuant to Rules 401, 403, and 702 of the Pennsylvania Rules of Evidence.” 

Commonwealth v. Selensky, 117 A.3d 1283, 1285 (Pa.Super. 2015) 

(citing Walker, supra). 

However, at the time of Appellant’s trial, which took place in 2010, 

the per se ban against expert testimony and evidence relating to eyewitness 

identification remained in place. Therefore, there was no duty on trial 

counsel to call an expert witness or present a report from such an expert 

witness at Appellant’s trial. Further, while the Pennsylvania law in this area 

has changed dramatically since Appellant’s trial in 2010, we will not deem 
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trial counsel ineffective for failing to predict a change in the law.5 See 

Commonwealth v. Gribble, 580 Pa. 647, 863 A.2d 455 (2004) (indicating

counsel cannot be ineffective for failing to predict changes in the law). 

Accordingly, we find Appellant is not entitled to relief on this claim.

In his next issue, Appellant contends trial counsel was ineffective for 

failing to object to the imposition of a mandatory minimum sentence under 

42 Pa.C.S.A. § 9714(d). Specifically, he avers trial counsel should have 

objected to the imposition of such a sentence in light of the fact that neither 

Appellant’s counsel nor the trial court was provided with a written copy of 

Appellant’s criminal record prior to the trial court imposing its sentence. 

As Appellant correctly asserts, 42 Pa.C.S.A. § 9714(d) provides that 

“[t]he applicability of this section shall be determined at sentencing. The 

sentencing court, prior to imposing sentence on an offender under 

subsection (a), shall have a complete record of the previous convictions of 

the offender, copies of which shall be furnished to the offender.” 42 

Pa.C.S.A. § 9714(d). However, Appellant is mistaken in his assertion that 

neither the trial court nor his counsel were provided with his written criminal 

record prior to the imposition of sentence. 

For instance, during Appellant’s sentencing hearing, the trial court 

stated that it “ordered a presentence investigation and a prior record history 

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5 Additionally, we note that Walker has not been held to apply retroactively. 
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of [Appellant] which [the court] received and reviewed[.]” N.T., 2/1/11, at 

3. Additionally, as the PCRA court indicated, the record reveals the 

sentencing court “clearly possessed detailed information regarding 

Appellant’s criminal record, and was able to use that knowledge to 

appropriately, and lawfully, craft his sentence.” PCRA Court’s Opinion, filed 

4/14/16, at 7 (citation and footnote omitted). See Commonwealth v. 

Maleno, 502 A.2d 617 (Pa.Super. 1985) (indicating that information 

contained in a presentence investigation report concerning prior convictions 

is presumed to be valid). Moreover, at the sentencing hearing, trial counsel 

confirmed that he had received Appellant’s prior criminal record history. 

N.T., 2/1/11, at 3. Accordingly, there is no arguable merit to Appellant’s 

underlying claim, and trial counsel may not be deemed ineffective on this 

basis. See Jones, supra. 

In his next issue, Appellant contends trial counsel was ineffective in 

failing to inform Appellant prior to sentencing that he faced a mandatory 

minimum of ten to twenty years in prison. Assuming, arguendo, there is 

arguable merit to Appellant’s claim, Appellant has failed to show he was 

prejudiced by trial counsel’s omission. 

In the case sub judice, immediately following the jury’s return of the 

verdict and in open court, the Commonwealth provided notice that this was 

Appellant’s “second strike” since he had a previous F-1 robbery conviction in 

Philadelphia. N.T., 11/10/10, at 9-10. Accordingly, the Commonwealth 
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indicated that Appellant was subject to a ten to twenty year mandatory 

minimum sentence. See id. at 9. Inasmuch as Appellant was made aware 

by the Commonwealth that he faced the imposition of a mandatory minimum 

sentence, Appellant was not prejudiced by any omission by trial counsel in 

this regard. See Rollins, supra (defining prejudice for purposes of 

ineffective assistance of counsel claims). 

In his next issue, Appellant claims trial counsel was ineffective in 

failing to object to Appellant’s absence or request an on-the-record colloquy 

of Appellant’s waiver of his right to be present when the trial court 

reinstructed the jury on the definition of “beyond a reasonable doubt” within 

the deliberations room and outside of the presence of Appellant. We find no 

relief is due.

It is axiomatic that a defendant has a constitutional right to be present 

during every stage of his criminal trial. Commonwealth v. Rompilla, 554 

Pa. 378, 721 A.2d 786 (1998); Pa. Const. art. I, § 9. This right is codified in 

Pennsylvania Rule of Criminal Procedure 602(A).6 However, even where the 

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6 At the time of Appellant’s trial, Pa.R.Crim.P. 602(A) provided the following:

(A) The defendant shall be present at every stage of the 

trial including the impaneling of the jury and the return of 

the verdict, and at the imposition of sentence, except as 

otherwise provided by this rule. The defendant’s absence 

without cause shall not preclude proceeding with the trial 

including the return of the verdict and the imposition of 

sentence. 

(Footnote Continued Next Page)
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trial court violates the right, the appellant it not entitled to relief unless he 

demonstrates actual prejudice resulting therefrom. See Commonwealth v. 

Ressler, 798 A.2d 221 (Pa.Super. 2002). 

In the present case, trial counsel waived Appellant’s right to be 

present during the reinstruction of the jury as to the definition of “beyond a 

reasonable doubt.” See N.T., 11/9/10, at 171, 176-77. However, 

assuming, arguendo, this was done without Appellant’s consent, Appellant 

has failed to demonstrate that he was prejudiced. There is no doubt that 

trial counsel was present when the trial court reinstructed the jury. Id. at 

178-80. Moreover, the trial court’s initial and subsequent instructions 

regarding reasonable doubt were substantially similar. Id. at 149-51 (initial 

instruction on reasonable doubt); 178-80 (second instruction on reasonable 

doubt). After the initial charge was given to the jury with Appellant present, 

trial counsel did not lodge any objection, and Appellant does not aver on 

appeal that either the first or second charge, themselves, were erroneous. 

Accordingly, Appellant has failed to establish that he was prejudiced by his 

absence from the second charging of the jury, see Ressler, supra, and 

thus, trial counsel may not be deemed ineffective on this ground. 

(Footnote Continued) _______________________

Pa.R.Crim.P. 602(A). This Rule was amended in 2013 to clarify that, upon a 

finding that the absence was without cause, the trial judge may conduct the

trial in the defendant's absence when the defendant fails to appear without 

cause at the time set for trial or during trial. 
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In his next issue, Appellant argues trial counsel was ineffective in 

failing to file a pre-trial motion seeking to suppress Mr. Mohon’s 

identifications since Appellant was arrested without probable cause prior to 

Mr. Mohon’s initial identification of him.7 Appellant contends that Mr. 

Mohon’s out-of-court and in-court identifications should have been 

suppressed as fruits of this unlawful seizure, and trial counsel was ineffective 

in failing to file a motion to suppress on this basis. We agree with the PCRA 

court that there is no arguable merit to Appellant’s underlying contention, 

and therefore, trial counsel cannot be ineffective.

There are three types of encounters between law enforcement officials 

and private citizens: (1) mere encounter, (2) investigative detention, and 

(3) custodial detention. Commonwealth v. Jones, 874 A.2d 108, 116 

(Pa.Super. 2005). We have stated:

A mere encounter can be any formal or informal 

interaction between an officer and a citizen, but will normally be 

an inquiry by the officer of a citizen. The hallmark of this 

interaction is that it carries no official compulsion to stop or 

respond.

In contrast, an investigative detention, by implication, 

carries an official compulsion to stop and respond, but the 

detention is temporary, unless it results in the formation of 

probable cause for arrest, and does not possess the coercive 

conditions consistent with a formal arrest. Since this interaction 

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7 The certified docket entries reveal that, on February 13, 2009, trial counsel 

filed an omnibus pre-trial motion; however, the motion is not included in the 

certified record, and thus, we are unable to determine what issues trial 

counsel presented therein. 
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has elements of official compulsion it requires reasonable 

suspicion of unlawful activity. In further contrast, a custodial 

detention occurs when the nature, duration and conditions of an 

investigative detention become so coercive as to be, practically 

speaking, the functional equivalent of an arrest.

To determine if an interaction rises to the level of an 

investigative detention,...the court must examine all the 

circumstances and determine whether police action would have 

made a reasonable person believe he was not free to go and was 

subject to the officer's orders.

Id. (quotation marks and quotations omitted). 

The numerous factors used to determine whether a 

detention has evolved into an arrest include the cause for the 

detention, the detention's length, the detention's location, 

whether the suspect was transported against his or her will, 

whether physical restraints were used, whether the police used 

or threatened force, and the character of the investigative 

methods used to confirm or dispel the suspicions of the police.

Commonwealth v. Clinton, 905 A.2d 1026, 1032 (Pa.Super. 2006) 

(citation omitted). 

In the case sub judice, in analyzing Appellant’s claim, the PCRA court 

reasoned as follows: 

Contrary to Appellant’s assertion, he was not identified by 

[Mr.] Mohon after he was arrested; [but] rather, the [initial] 

identification occurred while Philadelphia Police Department [ ] 

officers were subjecting Appellant [and his cohort] to an 

investigative stop. See N.T., 11/9/10, at 98. [For instance, two 

officers, one of whom was driving an unmarked pickup truck, 

stopped their vehicles and approached the two men on a public 

street. See id. at 79, 98. The officers told the men to stop and 

patted them down for weapons. See id. at 82. Officer Tertulien 

testified he approached the men with his weapon drawn; 

however, to the best of his recollection, he did not handcuff the 

men at this point. See id. at 82, 90-91. Within minutes, Mr. 

Mohon was transported to the scene, where he identified the 

men. See id. at 98.] Such a stop is constitutionally valid, as 
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long as the detaining officer has a reasonable suspicion that the 

subject of the stop was involved in criminal activity, a belief 

which must be backed by “specific, articulable facts and 

reasonable inferences drawn from those facts in the light of the 

officer’s experience.”

Here. Mr. Mohon immediately called 911 and described the 

assailants as two African-American males wearing khaki pants 

and dark-colored or gray tops. See [id. at 80, 94, 102.] This 

“flash” information[,] [which also included the direction in which 

the suspects ran after the robbery,] was immediately 

broadcasted over police radio. [See id. at 98.] Within minutes 

and a short distance from the crime scene (approximately .4 

miles away), the detaining officers observed Appellant and his 

cohort [walking in the direction of and] wearing clothing that 

matched the “flash” information. See id. at 86-89, 100. [At 

this point, the officers approached the two men, and stopped 

them for an investigation. See id. at 98. Meanwhile, another 

vehicle brought Mr. Mohon to the area, where he positively 

identified Appellant and his cohort. See id. The arresting 

officer testified that, at this point, Appellant “was placed in 

custody.” Id.] In light of the totality of the circumstances, the 

officers had a reasonable suspicion that justified the 

investigative stop of Appellant [and his cohort.]

PCRA Court’s Opinion, filed 4/14/16, at 10 (emphasis, quotation, and 

footnote omitted).

We agree with the PCRA court’s sound reasoning, and additionally note 

that the two cases upon which Appellant relies, Commonwealth v. 

Berrios, 437 Pa. 338, 263 A.2d 342 (1970), and Commonwealth v. 

Youngblood, 359 A.2d 456 (Pa.Super. 1976) (en banc), are distinguishable 

from the present case and/or are not supportive of Appellant’s argument 

that he was subjected to a custodial detention at the time Mr. Mohon initially 

identified him as a suspect to police. See Appellant’s Brief at 42.
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For example, in Berrios, a police officer received “flash” information 

that a shooting had occurred, and the suspects were described as two 

African-American males in dark clothing and one Puerto Rican man in light 

clothing. Id. at 341, 263 A.2d at 344. Twenty minutes later, the police 

officer saw one African-American man and one Puerto Rican man, who was 

wearing light clothing, walking down the street. Id. at 342, 263 A.2d at 

344. The officer stopped and frisked the two men. 

Based on these facts, our Supreme Court concluded that the two men 

had been subjected to an investigative detention (and not an arrest as 

indicated by Appellant herein), but that the officer did not have reasonable 

suspicion to support the investigative detention. See Berrios, supra. 

Presently, Appellant makes no assertion and develops no argument 

indicating that the police did not have reasonable suspicion to conduct an 

investigative detention; but rather, he focuses his argument on an arrest 

without probable cause theory. 

Moreover, in Youngblood, a police officer received a radio call that a 

purse snatching had just occurred and the suspect was “a black youth, about 

fourteen-years-old, wearing a short, blue-denim jacket.” Id. at 457. The 

officer then passed two men who appeared to be “eyeballing a store,” and 

when the officer heard the description of the purse snatcher, he circled the 
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block and arrested the defendant/appellee, who did not meet the description 

of the purse snatcher.8 

In finding there was no probable cause to arrest the 

defendant/appellee in Youngblood, this Court noted that the description of 

the defendant/appellee was not similar to the description of the purse 

snatching suspect. Specifically, we held that “we have no difficulty finding 

that the arresting officers in the instant case lacked probable cause: a 

twenty-five-year-old bearded male calmly ‘eyeballing’ a store does not 

sufficiently resemble a fourteen-year-old youth running from the scene of a 

robbery to establish probable cause of an arrest.” Id. at 459 (footnote 

omitted). 

However, in the present case, Appellant and his cohort, who were 

stopped by police .4 miles from the scene within minutes of the crime based 

on “flash” information (including race, gender, and a description of clothing), 

were not subjected to an arrest prior to Mr. Mohon’s identification, and thus, 

unlike in Youngblood, probable cause was not necessary at this juncture. 

Accordingly, for all of the aforementioned reasons, we conclude trial counsel 

was not ineffective in failing to file a pre-trial motion to suppress on the 

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8

In Youngblood, the Commonwealth/appellant did not contest that an 

arrest occurred and the focus of the opinion is on whether there was 

probable cause to support the arrest. 
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basis Appellant was subjected to an improper arrest without probable cause 

prior to Mr. Mohon’s identification of him as as suspect.9

Appellant’s next two issues are intertwined. Appellant claims trial 

counsel was ineffective in failing to file an interlocutory appeal with regard to 

the trial court’s ruling that Appellant’s speedy trial rights were not violated 

under Pa.R.Crim.P. 600. Appellant contends that an interlocutory appeal 

would have had merit since the Commonwealth did not exercise due 

diligence in bringing him to trial in the time specified by Rule 600. He 

further claims that trial counsel was ineffective in failing to file a motion for 

dismissal under Rule 600 on the basis that the Commonwealth made no pretrial motions seeking an extension of time based on judicial delay. Thus, he 

avers that the Commonwealth did not exercise due diligence in bringing 

Appellant to trial in violation of Rule 600, and trial counsel was ineffective in 

this regard. We find no relief is due.

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9

In a one paragraph argument, Appellant additionally avers trial counsel 

was ineffective in failing to file a pre-trial motion seeking to exclude Mr. 

Mohon’s pre-trial identification on the basis it was “suggestive and not 

reliable[.]” Appellant’s Brief at 49. Appellant has not sufficiently developed 

this claim so as to permit meaningful review. See Pa.R.A.P. 2119. In any 

event, we note that, on direct appeal, Appellant averred the evidence was 

insufficient to sustain his convictions and/or the jury’s verdict was against 

the weight of the evidence due to Mr. Mohon’s suggestive and unreliable 

identification. As indicated supra, we found no merit to these claims, and to 

the extent Appellant attempts to re-litigate or rephrase the issues instantly, 

his attempt fails. See Commonwealth v. Bond, 572 Pa. 588, 819 A.2d 33 

(2002).
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Initially, we note that Appellant is mistaken in his assertion that trial 

counsel did not file a motion seeking to dismiss under Rule 600. The record 

reveals that the trial court denied such a motion prior to the jury trial. See

N.T., 11/9/10, at 4-14. Moreover, to the extent Appellant contends trial 

counsel should have filed an interlocutory appeal from the trial court’s ruling, 

we note that Appellant has demonstrated no prejudice since, on direct 

appeal, this Court analyzed and considered the merits of trial counsel’s 

motion to dismiss under Rule 600. Ultimately, we agreed with the trial court 

that Appellant’s speedy trial rights were not violated under Rule 600. 

As the PCRA court cogently acknowledged in its opinion, Appellant’s 

underlying claim that his speedy trial rights were violated under Rule 600 

has been “previously litigated” for purposes of the PCRA. See PCRA Court’s 

Opinion, filed 4/14/16, at 12 (citing 42 Pa.C.S.A. § 9544(a)).10 Accordingly, 

Appellant’s attempts to obtain review of the issue by setting forth new 

theories of relief, and attempting to resurrect the claim by alleging the 

ineffective assistance of trial counsel, is unavailing. See Bond, supra.

In his next issue, Appellant avers trial counsel was ineffective in failing 

to prepare his case properly for trial. In particular, he avers trial counsel 

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10 The PCRA provides, in relevant part, that “[f]or purposes of this 

subchapter, an issue has been previously litigated if:...(2) the highest 

appellate court in which the petitioner could have had review as a matter of 

right has ruled on the merits of the issue[.]” 42 Pa.C.S.A. § 9544(a). 
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“failed to investigate his case[,]” “never discussed a trial strategy until the 

day of trial[,]” and failed to “prepare a motion on the Rule 600 violation[.]”11 

Appellant’s Brief at 64. 

Initially, as discussed supra, Appellant is mistaken in his assertion that 

trial counsel did not file a motion to dismiss under Pa.R.Crim.P. 600. In fact, 

trial counsel filed and litigated such a motion; however, the trial court 

denied the motion. See N.T., 11/9/10, at 4-14. Furthermore, as to 

Appellant’s assertions that trial counsel failed to prepare properly, failed to 

investigate the case, and never discussed a trial strategy with him until the 

day of trial, the PCRA court properly concluded the following: 

Appellant neglected to develop any of these arguments with any 

degree of specificity, vaguely alluding to actions taken (or not 

taken) by trial counsel, and then [baldly] claiming that he was 

somehow prejudiced thereby. [I]t is well-settled that an 

“undeveloped claim of ineffectiveness is insufficient to prove an 

entitlement to relief[.]” 

PCRA Court’s Opinion, filed 4/14/16, at 13 (quotation and citation omitted). 

We agree with the PCRA court’s reasoning and find Appellant is not 

entitled to relief. See Commonwealth v. Jones, 571 Pa. 112, 127, 811 

A.2d 994, 1003 (2002) (“Claims of ineffective assistance of counsel are not 

____________________________________________

11 In this portion of the argument section of his brief, Appellant also 

suggests trial counsel was ineffective since Appellant “asked counsel to 

interview and present his wife as a witness and counsel refused.” 

Appellant’s Brief at 64. In subsequent portions of his brief, Appellant has 

more fully developed this issue. See Appellant’s Brief 66-67. Accordingly, 

we shall address this as a separate issue infra. 
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self-proving; [an] undeveloped claim of ineffectiveness is insufficient to 

prove an entitlement to relief.”); Commonwealth v. Bracey, 568 Pa. 264, 

795 A.2d 935 (2001) (holding bald assertions of ineffectiveness do not 

entitle a petitioner to relief).

In his next issue, Appellant contends that trial counsel was ineffective 

for failing to call his wife, Tracee Burnett, on his behalf as a witness at trial. 

When raising a failure to call a potential witness claim, the 

PCRA petitioner satisfies the performance and prejudice 

requirements...by establishing that:

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

available to testify for the defense; (3) counsel knew 

of, or should have known of, the existence of the 

witness; (4) the witness was willing to testify for the 

defense; and (5) the absence of the testimony of the 

witness was so prejudicial as to have denied the 

defendant a fair trial.

Commonwealth v. Washington, 592 Pa. 698, 927 A.2d 586, 

599 (2007). To demonstrate [ ] prejudice, the PCRA petitioner 

“must show how the uncalled witnesses' testimony would have 

been beneficial under the circumstances of the case.” 

Commonwealth v. Gibson, 597 Pa. 402, 951 A.2d 1110, 1134 

(2008); see also Commonwealth v. Chmiel, 585 Pa. 547, 889 

A.2d 501, 546 (2005) (“Trial counsel's failure to call a particular 

witness does not constitute ineffective assistance without some 

showing that the absent witness' testimony would have been 

beneficial or helpful in establishing the asserted defense.”).

Commonwealth v. Johnson, 600 Pa. 329, 351-52, 966 A.2d 523, 536 

(2009). 

Assuming, arguendo, Appellant demonstrated his wife existed, was 

available and willing to testify for the defense, and trial counsel knew or 

should have known of her existence, Appellant has failed to explain how the 
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absence of his wife’s testimony “was so prejudicial as to have denied 

[Appellant] a fair trial.” Id. at 351, 966 A.2d at 536 (quotation omitted). 

In his appellate brief, Appellant avers his wife would have offered 

“beneficial,” “crucial” testimony as to “certain issues” of “relevance” for the

defense; however, he does not specify precisely what his wife’s testimony 

would consist of, how it would be beneficial to his defense, or to which 

issues her testimony would pertain. See Appellant’s Brief at 66-67. Such 

bald assertions are not sufficient to demonstrate prejudice. See

Commonwealth v. Gonzalez, 608 A.2d 528, 532 (Pa.Super. 1992) 

(indicating counsel will not be deemed ineffective in failing to call a particular 

witness absent a showing that the witness’ testimony would have been 

beneficial and helpful to the defense). 

In any event, to the extent Appellant cites to his wife’s sworn, 

notarized affidavit in support of his claim, see Appellant’s Brief at 66, we 

note the PCRA court indicated the following: 

According to a notarized affidavit signed by Tracee 

Burnett, Appellant’s wife, she and her husband told trial counsel 

that she could testify to the fact that Appellant “is left-handed 

and that he didn’t own or wear hoodies,” but that trial counsel 

declined, telling them “that wouldn’t be enough.” [See

Appellant’s Memorandum in Support of his Amended PCRA 

Petition, filed 1/9/15, Exhibit B.] Such testimony would not have 

provided an effective counter to Mr. Mohon’s repeated, 

consistent, and assured statements that he recognized Appellant 

as having been one of his assailants. 

PCRA Court’s Opinion, filed 4/14/16, at 13-14 (citation omitted). 
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We agree with the PCRA court’s well-reasoned analysis in this regard. 

See Commonwealth v. Hammond, 953 A.2d 544, 559 (Pa.Super. 2008) 

(where the witness was not present during the shooting, and could not 

testify regarding the encounter, the witness’ testimony would not have been 

beneficial to the defense, thus trial counsel was not ineffective in failing to 

call the witness).

In his next issue, Appellant contends trial counsel was ineffective in 

failing to inform Appellant that the Commonwealth had offered Appellant a 

plea of four to eight years in prison. We find no relief is due.

“[A]s a general rule, defense counsel has the duty to communicate 

formal offers from the prosecution to accept a plea on terms and conditions 

that may be favorable to the accused.” Missouri v. Frye, 132 S.Ct. 1399, 

1408 (2012). In Commonwealth v. Chazin, 873 A.2d 732 (Pa.Super. 

2005), this Court addressed the issue of ineffectiveness of counsel with 

regard to counsel's duty to inform a defendant of the risk and benefits of a 

plea offer. This Court noted that in order for a defendant to be entitled to 

relief, he has the burden of proving that: (1) an offer for a plea was made; 

(2) trial counsel failed to inform him of such offer; (3) trial counsel had no 

reasonable basis for failing to inform him of the offer; and (4) he was 

prejudiced thereby. Id. at 735. 

To show prejudice from ineffective assistance of counsel 

where a plea offer has lapsed or been rejected because of 

counsel's deficient performance, defendants must demonstrate a 

reasonable probability they would have accepted the earlier plea 
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offer had they been afforded effective assistance of counsel. 

Defendants must also demonstrate a reasonable probability the 

plea would have been entered without the prosecution canceling 

it or the trial court refusing to accept it, if they had the authority 

to exercise that discretion under state law. To establish 

prejudice in this instance, it is necessary to show a reasonable 

probability that the end result of the criminal process would have 

been more favorable by reason of a plea to a lesser charge or a 

sentence of less prison time.

Frye, 132 S.Ct. at 1409. 

Here, assuming, arguendo, Appellant demonstrated trial counsel failed 

to convey a plea offer to him, we agree with the PCRA court that Appellant is 

not entitled to relief since he has failed to meet his burden of showing he 

was prejudiced. See Frye, supra. 

For instance, at the sentencing hearing, the Commonwealth specifically 

stated on the record that “Your Honor...the defendant was given the 

opportunity to plead to the F-2 robbery, four to eight years incarceration, 

and rejected that offer.” N.T., 1/2/11, at 8. Appellant made no objection or 

statement with regard to the revelation there had been a plea offered to 

him; however, he continued to argue that he did not commit the crimes and 

pointed to deficiencies in Mr. Mohon’s identification of him. Id. at 9. 

Therefore, despite allegedly being informed for the first time the 

Commonwealth had previously made a plea offer, Appellant did not seek to 

address the issue; but rather, he continued to maintain his innocence during 

the sentencing hearing. The PCRA court judge, who was also the sentencing 

judge in this case, indicated she took Appellant’s lack of surprise and lack of 
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objection into consideration, thus concluding that Appellant’s present bald, 

self-serving assertion, i.e., that he would have taken a plea deal, was not 

credible. We find no error in this regard. See Spotz, supra (indicating 

credibility determinations are within the province of the PCRA court and are 

binding upon the appellate court when supported by the record). 

Furthermore, aside from noting that a petitioner must demonstrate the 

“court would have accepted its terms” in order to establish prejudice, see

Appellant’s Brief at 68, Appellant has failed to argue, let alone establish, a 

reasonable probability that the trial court would have accepted the plea 

bargain in this case. Accordingly, Appellant has failed to demonstrate the 

necessary prejudice, and no relief is due. See Frye, supra (holding 

petitioners must demonstrate a reasonable probability they would have 

accepted the earlier plea offer had they been afforded effective assistance of 

counsel); Chazin, 873 A.2d at 737 (holding “prejudice, i.e., the reasonable 

probability that, but for the act or omission challenged, the outcome of the 

proceeding would have been different,” cannot be established absent 

evidence that the trial court would have accepted the plea offer) (quotation 

marks and quotation omitted)).

In his next issue, Appellant contends trial counsel was ineffective in 

failing to object to the trial court’s imposition of an illegal mandatory 

minimum sentence. More specifically, Appellant contends that trial counsel 

should have objected since, under the dictates of Alleyne v. United States, 
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133 S.Ct. 2151 (2013), the facts necessary for the imposition of the 

mandatory minimum were not established by a jury beyond a reasonable 

doubt. Appellant’s Brief at 68. 

We dispose of this issue simply by concluding that, under Alleyne and 

its progeny, Appellant’s sentence is not illegal. Appellant received a 

mandatory minimum sentence because he previously had been convicted of 

robbery. The courts of this Commonwealth and the United States Supreme 

Court have taken the position that Alleyne does not require that a prior 

conviction be proven before a jury in order to support a mandatory minimum 

sentence. Alleyne, 133 S.Ct. at 2161–63 (holding that any fact other than 

a prior conviction that triggers a mandatory minimum sentence must be 

found by a jury beyond a reasonable doubt); Commonwealth v. Reid, 117 

A.3d 777 (Pa.Super. 2015) (recognizing Alleyne’s narrow exception to the 

general rule for the fact of a prior conviction). Thus, trial counsel cannot be 

ineffective on this basis. See Commonwealth v. Jones, 590 Pa. 202, 912 

A.2d 268 (2006) (holding counsel cannot be ineffective for failing to raise a 

meritless claim). 

In his next issue, Appellant avers generally that direct appeal counsel 

was ineffective for failing to raise each of the above issues on appeal. 

Appellant’s boilerplate allegation and bald assertion do not satisfy his 

burden. See Commonwealth v. Paddy, 609 Pa. 272, 15 A.3d 431 (2011). 

In any event, inasmuch we have found Appellant is not entitled to relief with 
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regard to any of the previous claims, direct appeal counsel may not be found 

ineffective on this basis. Commonwealth v. Walker, 613 Pa. 601, 36 A.3d 

1 (2011).

In his final issue, Appellant argues the PCRA court erred in denying his 

petition without an evidentiary hearing. A PCRA petitioner is not 

automatically entitled to an evidentiary hearing. Commonwealth v. Wah, 

42 A.3d 335, 338 (Pa.Super. 2012). We review the PCRA court’s decision to 

deny a petition without an evidentiary hearing, or with a limited hearing, for 

an abuse of discretion. See Commonwealth v. Reid, 627 Pa. 151, 99 A.3d 

470 (2014). In light of the fact Appellant’s claims are patently frivolous, as 

discussed supra, we conclude the PCRA court did not err in denying relief 

without an evidentiary hearing. 

For all of the foregoing reasons, we affirm the PCRA court’s denial of 

Appellant’s first PCRA petition.

Affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 2/21/2017