J. S08022/16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COU RT OF : PENNSYLVANIA : v. : : DOMENIQUE JAMES LEWIS, : : Appellant : No. 1017 WDA 2015

Appeal from the PCRA Order June 4, 2015 In the Court of Common Pleas of Allegheny County Criminal Division No(s).: CP-02-CR-0008184-2010 BEFORE: STABILE, J., DUBOW, J., and MUSMANNO, J. MEMORANDUM BY DUBOW, J.: FILED MARCH 17, 2016 Appellant, Domenique James Lewis, appeals pro se from the order entered on June 4, 2015, dismissing his first petit ion filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 95 41-9546. After careful review, we reverse the order of the PCRA court, aff irm Appellant’s convictions, vacate the judgment of sentence, and r emand for resentencing consistent with Alleyne v. United States , __ U.S. __, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013). The facts as stated in our memorandum opinion on di rect appeal are as follows: At trial, Megan [Wilsher] testified that on Februar y 26, 2010, while Lewis was sitting in her living room, he stoo d up, pulled out a gun, smiled at her, and fired at her. [Wilsh er] testified Lewis shot her in the face, and after she fell, he shot her again. Wilsher lost her right eye as a result of the shoot ing. See N.T., 6/22/2012, at 77, 80–81. In corroboration of this testimony, theJ. S08022/16

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Commonwealth presented evidence that Lewis’s finger prints were found on a Coke can recovered from the scene. See id. at 196–197. Furthermore, the Commonwealth, through the testimon y of Detective Scott Evans, introduced a recorded statem ent made by Lewis to police, in which he admitted that on Febru ary 26, 2010, he had engaged in a struggle with Brett Quinn over a gun that discharged in the living room; he took the gun and fired at Quinn multiple times, chased him and took his chain and w atch; returned to the house where he took $400 to $500 do llars from Wilsher’s purse, as well as her cellular phone; and then disposed of the gun. See N.T., 6/23/2012, at 30–46. The Commonwealth, through Detective Evans, also introdu ced documentation to show Lewis did not possess a permi t to carry a gun. Id. at 46. Finally, outside the presence of the jury, the Commonwealth offered into evidence the certificatio n from the juvenile court for Lewis’s robbery conviction. Id. at 87. Commonwealth v. Lewis , No. 358 WDA 2012 (filed April 29, 2013). A jury convicted Appellant of Criminal Attempt - Mu rder (two counts), Aggravated Assault (two counts), Robbery (two count s), and Carrying a Firearm Without a License. 1 In a bifurcated waiver trial, the trial court fou nd Appellant guilty of Possession of Firearms Prohibit ed. 2 On September 8, 2011, the trial court sentenced Appellant to an agg regate term of 331⁄2 to 67 years of imprisonment. 3

1 18 Pa.C.S. §§ 901(a) and 2502; 18 Pa.C.S. § 2702(a )(1); 18 Pa.C.S. § 3701(a)(1)(i); and 18 Pa.C.S. § 6106(a)(1), respect ively.

2 18 Pa.C.S. § 6105(a)(1).

3 Specifically, the trial court sentenced Appellant to a term of twenty to forty years’ incarceration for the first Attempted Murder conviction and a consecutive term of five to ten years’ incarceratio n for the second Attempted Murder conviction. The trial court imposed a conse cutive term of five to ten years’ incarceration for the first Robbery convicti on, and a consecutive termJ. S08022/16

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Appellant filed a direct appeal. In an unpublished memorandum, this Court affirmed Appellant’s judgment of sentence on April 29, 2013. Commonwealth v. Lewis , No. 358 WDA 2012 (filed April 29, 2013). Our Supreme Court denied Appellant’s Petition for Allow ance of Appeal on September 17, 2013. Commonwealth v. Lewis , 74 A.3d 1030 (Pa.Super. 2013). Appellant’s judgment of sentence became fin al on December 17, 2013. On August 4, 2014, Appellant filed a timely pro se PCRA petition and the PCRA court appointed counsel. On February 17, 2015, appointed counsel filed a petition to withdraw 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). On February 18, 2015, the PCRA court filed a notice of its intent to dismiss Appellant’s PCRA petition without a hearing pursuant to Pa.R.Crim.P. 907. On June 4, 2015, the PCRA court denied the pe tition and granted counsel’s petition to withdraw. Appellant filed a timely pro se notice of appeal on June 25, 2015. Both Appellant and the tr ial court complied with Pa.R.A.P. 1925. Appellant raised four issues on appeal, which we ha ve reordered for ease of disposition: of three and one-half to seven years’ incarceration for the Carrying a Firearm Without a License conviction. The trial co urt imposed a finding of guilt without further penalty for the remaining con victions.J. S08022/16

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- a. Abuse of Discretion: Whether trial court abused its discretion when not granting appellant a mistrial d ue to the showing of graphic pictures of the victim thereby causing an inflammatory reaction from the jury as well as the suggestive nature of the victim 's identification of the appellant. b. Ineffective Assistance of Counsel: Whether trial counsel for appellant was ineffective for failure t o object to or challenge the suggestive nature of victim, Wilsher’s identification of the appellant, thereby violating Commonwealth v. Pursell, 724 A.2d 293, 304 (1999), Strickland v. Washington, 104 S.Ct. 2062(1984) and U.S.C.A. Const. Amend. 6. c. Illegality of Sentence: Whether trial court erre d in sentencing appellant to an illegal sentence in violation of U.S.C.A. Cont. Amend. 5, 8, 14 and Pa. Const. Art. 1 §10, thereby giving appellant the rig ht to raise such claim by way of sentencing appellant solely on the severity of crime. d. Abuse of Discretion Based on Illegality of Sentence: Whether Trial Court erred in respect to the discretionary aspect of appellant’s sentence in accordance to 42 Pa. Cons. Stat. § 9721, 9725, 204 Pa. Code § 303.2 et seq., and 42 Pa. Cons. Stat. § 9721(b) as appellant contends that he was prejudiced by there being substantial question that the sentence imposed was not appropriate under the sentencing code, thereby, violating U.S.C.A. 5 and 14 and Pa. Const. Art 1 § 10, and Commonwealth v. Urrutia, 653 A.2d 706, 710 (Pa. Super. 1995). Appellant’s Brief at 3-4 (boldface removed). We review the denial of a PCRA petition to determin e whether the record supports the PCRA court’s findings and wheth er its order is otherwise free of legal error. Commonwealth v. Fears , 86 A.3d 795, 803 (Pa. 2014). This Court grants great deference to the fi ndings of the PCRA court ifJ. S08022/16

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they are supported by the record. Commonwealth v. Boyd , 923 A.2d 513, 515 (Pa.Super. 2007). We give no such deference, h owever, to the court’s legal conclusions. Commonwealth v. Ford , 44 A.3d 1190, 1194 (Pa.Super. 2012). A PCRA petitioner is not automatically entitled to an evidentiary hearing. Commonwealth v. Miller , 102 A.3d 988, 992 (Pa.Super. 2014). The PCRA court may decline to hold a hearing if the petitioner’s claim is patently frivolous and has no support either in the record or in other evidence. Id . The reviewing court on appeal must examine each issue raised in the PCRA petition in light of the record before it in order to determine if the PCRA court erred in its determinat ion that there were no genuine issues of material fact in controversy and in denying relief without conducting an evidentiary hearing. Id .; s ee also Commonwealth v. Roney, 79 A.3d 595, 604 (Pa. 2013) (applying abuse of disc retion standard to review of PCRA court’s denial of petition withou t a hearing). To be eligible for relief pursuant to the PCRA, App ellant must establish, inter alia , that his conviction or sentence resulted from one or more of the enumerated errors or defects found in 42 Pa.C.S. § 9543(a)(2). Appellant must also establish that the issues raised in the P CRA petition have not been previously litigated or waived. 42 Pa.C.S. § 9543( a)(3). An allegation of error “is waived if the petitioner could have raise d it but failed to do soJ. S08022/16

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before trial, at trial, during unitary review, on a ppeal or in a prior state postconviction proceeding.” 42 Pa.C.S. § 9544(b). In his first issue, Appellant argues that the trial court abused its discretion by denying his request for a mistrial ba sed on allegedly inflammatory graphic pictures of the victim and the suggestive nature of the victim’s identification. The PCRA does not recogni ze such a claim. See 42 Pa.C.S. § 9543(a)(2). As the trial court properly found, this is an issue for direct appeal. In fact, Appellant previously raise d this issue on direct appeal and this Court concluded that it was meritless. Commonwealth v. Lewis , No. 358 WDA 2012 (filed April 29, 2013); see 42 Pa.C.S. § 9543(a)(3) (stating allegation of error previously litigated n ot eligible for PCRA relief). As a result, Appellant’s first claim on appeal must fail. In his second issue on appeal, Appellant argues tha t his trial counsel rendered ineffective assistance in failing to chall enge the suggestive nature of the victims’ identification. 4 This claim is also without merit. The law presumes counsel has rendered effective ass istance. Commonwealth v. Rivera , 10 A.3d 1276, 1279 (Pa.Super. 2010). The burden of demonstrating ineffectiveness rests on Ap pellant. Id . To satisfy this burden, Appellant must plead and prove by a pr eponderance of the evidence that: (1) his underlying claim is of argua ble merit; (2) the

4 Appellant argues here for the first time that his trial counsel was ineffective for failing to request a Kloiber instruction. Since Appellant failed to include this claim in his 1925 Statement of Errors it is wa ived.J. S08022/16

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particular course of conduct pursued by counsel did not have some reasonable basis designed to effectuate his interes ts; and (3) but for counsel’s ineffectiveness, there is a reasonable pr obability that the outcome of the challenged proceedings would have been diffe rent. Commonwealth v. Fulton , 830 A.2d 567, 572 (Pa. 2003). First, Appellant must meet the “arguable merit” pro ng. “The threshold inquiry in ineffectiveness claims is whether the is sue/argument/tactic which counsel has foregone and which forms the basis for the assertion of ineffectiveness is of arguable merit[.]” Commonwealth v. Pierce , 645 A.2d 189, 194 (Pa. 1994) (internal citation omitted ). “Counsel cannot be found ineffective for failing to pursue a baseless or meritless claim.” Commonwealth v. Poplawski , 852 A.2d 323, 327 (Pa.Super. 2004) (internal citation omitted). Second, Appellant must meet the “no reasonable basi s” prong. We apply the “reasonable basis” test to determine whet her counsel’s chosen course was designed to effectuate his client’s inte rests. Pierce , supra at 194-95. “If we conclude that the particular course chosen by counsel had some reasonable basis, our inquiry ceases and couns el’s assistance is deemed effective.” Id . (internal citation omitted) Third, Appellant must meet the “prejudice” prong. “Prejudice is established when [a defendant] demonstrates that co unsel’s chosen course of action had an adverse effect on the outcome of t he proceedings.”J. S08022/16

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Commonwealth v. Chambers , 807 A.2d 872, 883 (Pa. 2002) (quoting Commonwealth v. Balodis , 747 A.2d 341, 343-44 (Pa. 2000)). “The defendant must show that there is a reasonable prob ability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id . (quoting Strickland v. Washington , 466 U.S. 668, 694 (1984)). “A reasonable probability is a probab ility sufficient to undermine confidence in the outcome.” Id . “A criminal defendant alleging prejudice must show that counsel’s errors were so s erious as to deprive the defendant of a fair trial, a trial whose result is reliable.” Id . (quoting Commonwealth v. Kimball , 724 A.2d 326, 331 (Pa. 1999)). With respect to the identifications in this case, b oth victims initially identified another individual, Josh Stone, as the s hooter. Both victims later identified Appellant as the shooter. At trial, bot h victims testified about their initial misidentifications of Stone. Contrary to Appellant’s argument, trial counsel did challenge the nature of the victims’ identifications throughout t he trial. Appellant’s trial court addressed and challenged the identifications during her opening statements. N.T. Trial, 6/22/11, at 39-40. She als o vigorously crossexamined the two victims regarding their identifica tions, the procedures used, and their mis-identifications of other indivi duals. N.T. Trial, 6/22/11, at 100-19, 150-59. In closing arguments, Appellant ’s trial counsel again challenged the identifications, attacked the victim s’ credibility, and advancedJ. S08022/16

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the ultimately uncredited theory of misidentificati on. N.T. Trial, 6/23/11, at 145-60. Because trial counsel did challenge the id entification evidence, Appellant’s claim of ineffectiveness for failing to challenge the evidence lacks arguable merit. See Pierce , supra at 194. In his third and fourth issues on appeal, Appellant challenges the discretionary aspects and the legality of his sente nce. We need not address his specific arguments because we are required to v acate Appellant’s judgment of sentence on grounds not raised by Appel lant. See Commonwealth v. Watley, 81 A.3d 108, 118 (Pa.Super. 2013) ( en banc ) (“Legality of sentence questions are not waivable a nd may be raised sua sponte by this Court.”). The certified record indicates that in 2011, the co urt imposed mandatory minimum sentences pursuant to 42 Pa.C.S. § 9712 for each of Appellant’s Attempted Murder and Robbery conviction s. 5 This Court affirmed the judgment of sentence on direct appeal. While A ppellant’s petition for allowance of appeal was pending in our Supreme Cour t, the United States Supreme Court decided Alleyne v. United States , __ U.S. __, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013), holding that any fact increasing the mandatory minimum sentence for a crime is considere d an element of the

5 Although the record does not contain a sentencing transcript, the sentencing court’s forms indicate that it relied on Section 9712. We rely on these facts from the certified record in reaching o ur conclusion that the trial court relied on Section 9712 at Appellant’s sentenc ing.J. S08022/16

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crime to be submitted to the fact-finder and found beyond a reasonable doubt.
In Commonwealth v. Newman , 99 A.3d 86, 98 (Pa.Super. 2014) ( en banc ), appeal denied , 121 A.3d 496 (Pa. 2015), this Court held that pursuant to Alleyne , 42 Pa.C.S. § 9712.1 is no longer constitutional. In Commonwealth v. Riggle , 119 A.3d 1058 (Pa.Super. 2015), this Court declined to give Alleyne retroactive effect to cases on timely collateral review when the defendant’s judgment of sentence ha d been finalized before Alleyne was decided. In Commonwealth v. Miller , 102 A.3d 988 (Pa.Super. 2014), this Court observed that Alleyne does not invalidate a mandatory minimum sentence when presented in an unt imely PCRA petition. Because Appellant’s judgment of sentence was not ye t final when Alleyne was decided and because he filed a timely PCRA pet ition, the instant case is distinguishable from Riggle and Miller . Accordingly, because the trial court sentenced Appellant to a mandatory minimum under Section 9712, which has been deemed unconstitutional, we mu st vacate his judgment of sentence and remand for resentencing, w ithout consideration of the mandatory minimum sentence. Appellant’s convictions for Attempted Murder, Aggra vated Assault, Robbery, Carrying a Firearm Without a License, and Possession of Firearms Prohibited affirmed. Judgment of sentence vacated. Case remanded for resentencing only. Jurisdiction relinquished.J. S08022/16

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary Date: 3/17/2016