J-A21014-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

ALLEN R. DANIELY 

Appellant

:

:

:

:

:

:

:

:

:

 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 2699 EDA 2022

Appeal from the PCRA Order Entered October 11, 2022

In the Court of Common Pleas of Philadelphia County Criminal Division at 

No(s): CP-51-CR-0001875-2008

BEFORE: BENDER, P.J.E., DUBOW, J., and NICHOLS, J.

MEMORANDUM BY NICHOLS, J.: FILED DECEMBER 19, 2023

Appellant Allen R. Daniely appeals from the order denying his timely first 

Post Conviction Relief Act1 (PCRA) petition. Appellant argues that the PCRA 

court erred in rejecting his ineffectiveness claims against both trial counsel 

and direct appeal counsel. We affirm.

We adopt the PCRA court’s summary of the facts and procedural history

underlying this matter. See PCRA Ct. Op., 1/9/23, at 1-5. Briefly, Appellant 

was convicted of first-degree murder and related offenses following the 2007

shooting death of Darryl Jones. After the trial court imposed a mandatory 

sentence of life imprisonment in 2009, this Court affirmed Appellant’s

judgment of sentence on direct appeal. See Commonwealth v. Daniely, 

____________________________________________

1 42 Pa.C.S. §§ 9541-9546.
J-A21014-23

- 2 -

1200 EDA 2012, 2013 WL 11259170 (Pa. Super. filed July 16, 2013) 

(unpublished mem.).

Appellant filed a timely pro se PCRA petition in 2014. Appellant 

subsequently retained PCRA counsel,2 who filed an amended petition on 

Appellant’s behalf. Therein, Appellant argued that (1) trial counsel was 

ineffective for advising Appellant that he would receive a twenty-to-forty-year 

prison sentence if he waived his right to a jury trial; and (2) both trial counsel 

and direct appeal counsel were ineffective for failing to challenge the 

sufficiency of the identification evidence. See Am. PCRA Pet., 3/23/22, at 9-

26.

On October 11, 2022, the PCRA court conducted an evidentiary hearing

to address Appellant’s jury trial waiver claim. At the hearing, the PCRA court 

heard testimony from Appellant, Appellant’s parents, and trial counsel. 

Ultimately, the PCRA court found trial counsel credible and concluded that trial 

counsel did not promise Appellant any specific sentence in exchange for 

waiving his right to a jury trial. See N.T. PCRA Hr’g, 10/11/22, at 104-06. 

That same day, the PCRA court issued an order dismissing Appellant’s petition.

____________________________________________

2 We note that Appellant has been represented by numerous attorneys since 

he filed his PCRA petition in 2014. See PCRA Ct. Op. at 1-3. In June of 2021, 

the PCRA court conducted a hearing pursuant to Commonwealth v. Grazier, 

713 A.2d 81 (Pa. 1998) and granted Appellant’s petition to proceed pro se. 

However, Appellant subsequently retained Teri Himebaugh, Esq., who was 

granted leave to file an amended petition on Appellant’s behalf.
J-A21014-23

- 3 -

Appellant filed a timely notice of appeal and a court-ordered Pa.R.A.P. 

1925(b) statement. The PCRA court issued a Rule 1925(a) opinion addressing 

Appellant’s claims. 

On appeal, Appellant raises the following issues for review:

1. Did the PCRA court err when, after a hearing, it denied 

Appellant’s claim that he was denied his rights under Article 1 

§ 9 [of the Pennsylvania Constitution] and the Sixth and 

Fourteenth Amendments to the Constitution of the United 

States of America when trial counsel ineffectively represented 

to the Appellant that he should waive his constitutional right to 

a trial by jury and that if he did so, he would receive no more 

than a 20 to 40 year sentence?

2. Did the PCRA court err when it denied Appellant’s claim that he 

was denied his rights under Article 1 § 9 [of the Pennsylvania 

Constitution] and the Sixth and Fourteenth Amendments to the 

Constitution of the United States of America when trial counsel 

failed to properly argue insufficiency of the evidence in the 

motion for judgment of acquittal on the first-degree murder 

charges; counsel on direct appeal ineffectively failed to 

challenge the sufficiency of the evidence with regard to the 

first-degree murder conviction [without a hearing]?

Appellant’s Brief at 3 (some formatting altered).

Waiver of Jury Trial

In his first issue, Appellant argues that the PCRA court erred in rejecting 

his claim that trial counsel was ineffective in connection with Appellant’s jury 

trial waiver. Id. at 12. Specifically, Appellant reiterates his assertion that 

trial counsel told Appellant that he would receive a twenty-to-forty-year prison 

sentence if he waived his right to a jury trial. Id. at 19-20. In support, 

Appellant relies on his own testimony at the PCRA hearing and the testimony 

from his parents. Id. at 16-22. Further, he argues that trial counsel’s 
J-A21014-23

- 4 -

“testimony at the PCRA hearing was highly self-serving and incredible” and 

that the circumstances surrounding the jury trial waiver clearly indicate that

he waived his right to a jury trial solely based on trial counsel’s advice. Id.

at 24-26, 30. He also claims that “[t]here was no reasonable, rational 

evidentiary basis” for trial counsel’s advice to proceed with a waiver trial and 

that “[h]ad [he] received objectively reasonable advice from [trial counsel] . 

. . he would have elected a jury trial, satisfying the prejudice requirement.” 

Id. at 24, 29. Finally, although Appellant acknowledges that he participated 

in an on-the-record waiver colloquy, he claims that the colloquy “goes to the 

‘voluntariness’ of the waiver and not whether [his decision] was ‘intelligent.’” 

Id. at 30.

Our review of the denial of PCRA relief is limited to “whether the record 

supports the PCRA court’s determination and whether the PCRA court’s 

decision is free of legal error.” Commonwealth v. Lawson, 90 A.3d 1, 4 

(Pa. Super. 2014) (citations omitted). “The PCRA court’s credibility 

determinations, when supported by the record, are binding on this Court; 

however, we apply a de novo standard of review to the PCRA court’s legal 

conclusions.” Commonwealth v. Mitchell, 105 A.3d 1257, 1265 (Pa. 2014) 

(citation omitted). 

We presume that the petitioner’s counsel was effective. 

Commonwealth v. Williams, 732 A.2d 1167, 1177 (Pa. 1999). To establish 

a claim of ineffective assistance of counsel, a defendant “must show, by a 

preponderance of the evidence, ineffective assistance of counsel which, in the 
J-A21014-23

- 5 -

circumstances of the particular case, so undermined the truth-determining 

process that no reliable adjudication of guilt or innocence could have taken 

place.” Commonwealth v. Turetsky, 925 A.2d 876, 880 (Pa. Super. 2007) 

(citations omitted). 

The burden is on the defendant to prove all three of the following 

prongs: “(1) the underlying claim is of arguable merit; (2) that counsel had 

no reasonable strategic basis for his or her 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.” Id. (citations 

omitted). Moreover, “[a] failure to satisfy any prong of the ineffectiveness 

test requires rejection of the claim of ineffectiveness.” Commonwealth v. 

Daniels, 963 A.2d 409, 419 (Pa. 2009) (citation omitted).

Here, the PCRA court addressed Appellant’s claim as follows:

A claim that trial counsel was ineffective by coercing a defendant 

to waive his right to a jury trial ordinarily will be unsuccessful 

where it is “contradicted by testimony elicited from [defendant] 

during his waiver colloquy.” Commonwealth v. Bishop, 645 

A.2d 274, 277 (Pa. Super. 1994). Under this rule, where the 

record shows that defendant testified during his waiver colloquy 

“that his jury trial waiver was not the product of threats, coercion, 

or promises . . . . [a defendant’s] claim is unsupported by the 

record, [and] must fail.” Id.

However, our Superior Court has recognized a narrow exception 

to the general rule outlined above. Where a defendant claims that 

he waived his right to a jury trial because of a specific promise 

made to him by defense counsel as to what his sentence would 

be, then the misrepresentation by counsel may invalidate the 

waiver. Commonwealth v. Carey, 340 A.2d 509, 511 (Pa. 

Super. 1975). However, because a disappointed defendant may 

often claim that he was misled by his counsel, defendant’s claim 
J-A21014-23

- 6 -

must be corroborated by another source that is accepted as 

truthful. “Thus, if defense counsel denies any inducement, and if 

no other corroborating evidence is produced, the waiver will be 

upheld.” Id.

At the evidentiary hearing, the Commonwealth presented 

testimony from trial counsel, Michael Coard, Esq. [(trial counsel)].

[Appellant] presented testimony from his parents, Bonita Crabbe 

and Alan Crabbe, and [Appellant] also testified on his own behalf.

First, [trial counsel] testified that he had been practicing criminal 

defense for 26 years. N.T. PCRA Hr’g, 10/11/22, at 7-8. He stated 

that prior to [Appellant’s] trial, he unsuccessfully attempted to 

persuade the Commonwealth to agree to allow [Appellant] to 

plead to third-degree murder. Id. at 10. After that, [trial counsel]

began preparing in earnest for trial, and he explained to 

[Appellant] the advantages and disadvantages of a jury trial 

versus a waiver trial. Id. at 11-12, 28. Following that discussion, 

[Appellant] decided to go with a waiver trial. Id. at 13. [Trial 

counsel] further testified that he never told [Appellant], or 

[Appellant’s] parents, that [Appellant] would receive any 

guaranteed sentence if [Appellant] proceeded with a waiver trial, 

and that he had never made such a promise in his career as a 

criminal defense attorney. Id. at 13-14. [Trial counsel] also 

stated that he went through the written waiver form with 

[Appellant,] and [Appellant] did not have any questions regarding 

the form. Id. at 14-15. Moreover, [trial counsel] testified that 

during Judge Hughes’ oral colloquy regarding the waiver of 

[Appellant’s] rights to a jury trial, there was no indication that the 

[Appellant] was confused or wished to proceed with a jury trial. 

Id. at 15-16. Lastly, [trial counsel] testified that he did not 

pressure [Appellant] to proceed with a bench trial, and if 

[Appellant] wanted to have a jury trial, then he would have taken 

that course of action. Id. at 16. 

Next, [Appellant’s] mother, Bonita Crabbe, testified. N.T. PCRA 

Hr’g, 10/11/22, at 31. Ms. Crabbe stated that she spoke with 

[trial counsel] in [trial counsel’s] office and they discussed 

[Appellant’s] possible guilty plea to third degree murder. Id. at 

31-32. She also said that she spoke to [trial counsel] another 

time in the courtroom hallway just before the trial. Id. at 32-33. 

Ms. Crabbe testified that during that conversation, [trial counsel]

told her that if [Appellant] pled guilty to third[-]degree murder, 

he would receive a twenty-to-forty-year sentence. Id. at 33. 

When asked if [trial counsel] ever discussed whether [Appellant]
J-A21014-23

- 7 -

should go with a judge or a jury trial, Ms. Crabbe testified that 

[trial counsel] said it was better for [Appellant] to go with a judge 

because “he would get a better plea deal if he goes with the 

judge.” Id. at 33-34. Ms. Crabbe testified that she understood 

that to mean if [Appellant] went with a judge trial, he would 

receive a twenty-to-forty-year sentence, and if he went with a jury 

trial, he would get life without parole. Id. at 34. She further 

testified that she believed if [Appellant] decided to have a waiver 

trial with Judge Hughes, he would not be convicted of anything 

higher than third-degree murder. Id. at 34 

Next, [Appellant’s] father, Alan Crabbe, testified. N.T. PCRA Hr’g, 

10/11/22, at 45. He stated that he spoke with [trial counsel] twice 

before [Appellant’s] trial. Id. at 45. Mr. Crabbe testified that his 

first conversation with [trial counsel] was in [trial counsel’s] office, 

and they discussed whether the [Appellant] should go with a jury 

trial or judge trial. Id. at 45. Mr. Crabbe testified that [trial 

counsel] said [Appellant] should go with a judge trial, and that 

[Appellant] would receive 20 years if he went with a judge as 

opposed to a jury. Id. at 45, 54. Mr. Crabbe stated that during 

the meeting, they also discussed a possible deal for [Appellant] to 

plead to third[-]degree murder and receive a twenty-to-forty-year 

sentence. Id. at 46. Mr. Crabbe testified that his second 

conversation with [trial counsel] was in the hallway outside the 

courtroom, at which time [trial counsel] told Mr. Crabbe that 

[Appellant] was not going to be able to plead to third[-]degree 

murder. Id. at 46-47. Mr. Crabbe stated that during that 

conversation, [trial counsel] also discussed the advantages and 

disadvantages of going with a judge versus a jury. Id. at 47. Mr. 

Crabbe testified that it was his understanding that it would be 

better for [Appellant] to go with a judge trial. Id. at 48. When 

asked if [trial counsel] explained why it would be better for 

[Appellant] to be tried in front of a judge, Mr. Crabbe stated that 

if he went with a judge, [Appellant] would receive a twenty-toforty-year sentence. Id. at 49. 

[Appellant] testified next. He stated that he and [trial counsel]

had two meetings in the District Attorney’s office prior to his trial. 

N.T. PCRA Hr’g, 10/11/22, at 58. [Appellant] stated that the 

purpose of those meetings was to discuss a possible plea 

agreement. Id. at 59. [Appellant] testified that [trial counsel]

told him the Commonwealth offered him a plea deal of [twentyto-forty] years if he identified the shooter. Id. at 59. However, 

[Appellant] stated that on the morning of the trial, [trial counsel]

informed [Appellant] that they would be going to trial because the 
J-A21014-23

- 8 -

Commonwealth was no longer offering the plea deal. Id. at 60. 

[Appellant] testified that [trial counsel] told [Appellant] that [trial 

counsel] and the prosecutor had a conversation with Judge 

Hughes in her chambers. Id. at 60. During the conversation, 

[trial counsel] told Judge Hughes that [Appellant] was prepared 

to plead to [twenty-to-forty years], but the prosecutor was no 

longer offering the plea deal. Id. [Appellant] stated that [trial 

counsel] then told Judge Hughes that the reason the plea deal was 

not going forward was because the Commonwealth wanted 

[Appellant] to “tell on his own brother.” Id. Judge Hughes 

allegedly responded by saying, “Is that true? Not even I would do 

that, not even I would tell on my own brother.” Id. Judge Hughes 

then allegedly continued, “Well, this is a unique case. So if

[Appellant] elects to go with a waiver trial, I’ll sentence him to 

[twenty-to-forty].” Id. at 60-61. [Appellant] stated that [trial 

counsel] also conveyed this conversation to [Appellant’s] parents, 

and they agreed with [trial counsel] that [Appellant] should 

proceed with a waiver trial. Id. at 61. [Appellant] testified that 

[trial counsel] did not go over the advantages and disadvantages 

of a judge or jury trial, and that the only reason [Appellant]

elected to waive his jury trial was because Judge Hughes said she 

would give him [twenty-to-forty years]. Id. at 61-62. 

In its findings of fact rendered at the conclusion of the hearing, 

the court found [trial counsel’s] testimony to be credible and 

credited his emphatic testimony that he had never guaranteed 

anybody a result of a waiver trial. N.T. PCRA Hr’g, 10/11/22, at 

104-105. The court stated that the scenario described by 

[Appellant] was contradicted by the trial record, the waiver 

colloquy, [trial counsel’s] testimony, and the actions of Judge 

Hughes. Id. at 107. Therefore, the court found that [trial 

counsel] did not promise [Appellant] that he would get a sentence 

of [twenty-to-forty] years if he waived his right to a jury trial. Id.

The court further concluded that [Appellant] failed to meet his 

burden that his waiver was not knowing, intelligent, and 

voluntary. Id. at 107-08. 

The court’s rejection of [Appellant’s] ineffective assistance of 

counsel claim premised upon alleged promises made to him about 

his sentence is fully supported by record. Accordingly, there is no 

basis to disturb it on appeal. See Green, 14 A.3d at 116.

PCRA Ct. Op. at 6-10 (some formatting altered).
J-A21014-23

- 9 -

Following our review of the record, we discern no error of law in the 

PCRA court’s conclusions, which are supported by the record. See Lawson, 

90 A.3d at 4. The record confirms that Appellant participated in an on-therecord waiver colloquy during which time he confirmed that no one had made 

“any promises of any form to get [him] to waive [his] right to a jury trial.” 

See N.T. Trial, 7/20/09, at 5-8. Further, the PCRA court credited trial 

counsel’s testimony at the PCRA hearing and concluded that trial counsel “did 

not promise [Appellant] that he would get a sentence of [twenty-to-forty] 

years if he waived his right to a jury trial.” See PCRA Ct. Op. at 10. As noted 

previously, the PCRA court’s credibility determinations are binding on this 

Court. See Mitchell, 105 A.3d at 1265. Therefore, because Appellant has 

failed to demonstrate that trial counsel made a specific promise that 

invalidated Appellant’s waiver colloquy, Appellant’s claim fails for lack of 

arguable merit. See Bishop, 645 A.2d at 277; Carey, 340 A.2d at 511. For 

these reasons, Appellant is not entitled to relief. 

Failure to Challenge Identification Evidence

In his remaining claim, Appellant argues that both trial counsel and 

direct appeal counsel were ineffective for failing to properly challenge the 

sufficiency of the identification evidence supporting his conviction for firstdegree murder. Appellant’s Brief at 31. Specifically, Appellant claims that 

although trial counsel moved for a judgment of acquittal, trial counsel

challenged the evidence proving specific intent, rather than the evidence 

establishing that Appellant was the shooter. Id. at 42. Appellant baldly 
J-A21014-23

- 10 -

asserts that trial counsel had no reasonable basis for failing to raise this 

argument and that, had trial counsel done so, Appellant would have been 

acquitted of the first-degree murder charge. Id. at 42-43. Appellant also 

claims that direct appeal counsel had no reasonable basis for failing to raise 

this claim on appeal and that direct appeal counsel’s “omission of this claim 

on direct appeal had an adverse effect on the outcome of the appellate 

proceedings.” Id. at 44-45.

“Where a petitioner alleges multiple layers of ineffectiveness, he is 

required to plead and prove, by a preponderance of the evidence, each of the 

three prongs of ineffectiveness relevant to each layer of representation.” 

Commonwealth v. Parrish, 273 A.3d 989, 1004 n.11 (Pa. 2022) (citation 

omitted). Further, it is well settled that

if the petitioner cannot prove the underlying claim of trial counsel 

ineffectiveness, then [the] petitioner’s derivative claim of 

[subsequent] counsel ineffectiveness of necessity must fail, and it 

is not necessary for the court to address the other two prongs of 

the Pierce[3]test [i.e., the reasonable basis and prejudice prongs] 

as applied to [subsequent] counsel.

Commonwealth v. Chmiel, 30 A.3d 1111, 1128 (Pa. 2011) (citations 

omitted and formatting altered). 

Here, the PCRA court addressed Appellant’s claim as follows:

____________________________________________

3 Commonwealth v. Pierce, 527 A.2d 973, 975-76 (Pa. 1987); see also

Turetsky, 925 A.2d at 880 (same).
J-A21014-23

- 11 -

It is true that in [Appellant’s] statement to police, he denied that 

he was the shooter. Following Miranda[4] warnings, [Appellant]

gave a statement in which he admitted to participating in the 

robbery and murder of Mr. Jones with two other accomplices. N.T. 

Trial, 7/22/09, at 153-56. However, [Appellant] told police that 

he was merely a getaway driver, and that prior to the robbery, he 

gave his gun to one of the other accomplices. Id. at 153-54. 

However, the Commonwealth offered compelling evidence that 

[Appellant] admitted to being the shooter, and not merely the 

getaway driver, in a statement that he made to Commonwealth 

witness Ebony Sawyer. Ms. Sawyer, who was one of [Appellant’s]

girlfriends, testified that following the murder of Mr. Jones, she 

was with [Appellant] when he began playing with a gun and 

proceeded to point the gun at Ms. Sawyer. N.T. [Trial,] 7/20/09,

at 161-62. After Ms. Sawyer said to [Appellant], “you wouldn’t 

shoot me[,]” [Appellant] stated, “you crazy, ask my goonies[.]”

Id. at 162. According to Ms. Sawyer, [Appellant] said that 

“somebody got their back blew out the frame[,]” in reference to 

the Saturday shooting. N.T. Trial, 7/20/09, at 163. 

More importantly, the Commonwealth also introduced Ms. 

Sawyer’s statement to police. In that statement, Ms. Sawyer 

stated that [Appellant] told her the following, while pointing a gun 

at her: 

He said I should have been there on Saturday. Jerone 

walked up to the guy and said something to the guy to make 

him stop. [Appellant] was playing with the gun and was 

showing me how he shot the guy on Saturday, 

demonstrating that he shot the gun three times. [Appellant] 

said that “I tore his back out the frame.”

N.T. Trial, 7/22/09, at 97-99. This admission, without more, was 

sufficient to establish that [Appellant] was the shooter. 

Moreover, there was additional compelling evidence that 

corroborated [Appellant’s] admissions. In particular, the 

Commonwealth presented evidence that three days after the 

murder, the police traced the signal from the stolen cell phone of 

the decedent, Mr. Jones, to a residence at the intersection of 

Germantown Avenue and Washington Lane. N.T. Trial, 7/22/09,

at 139-40. After the police witnessed [Appellant] exit the 

____________________________________________

4 See Miranda v. Arizona, 384 U.S. 436 (1966).
J-A21014-23

- 12 -

residence with a cell phone in his hand, they stopped [Appellant]

and patted him down. Id. at 140-42. During the pat-down, police 

found a .40 caliber handgun on [Appellant], which was the same 

type of gun used to shoot Mr. Jones. Id. at 142. Moreover, a 

ballistics analysis demonstrated that the two fired cartridge cases 

recovered from the scene of the murder had been fired from the 

gun recovered from [Appellant]. Id. at 83-87. The police then 

verified that the cell phone [Appellant] was holding was Mr. Jones’

missing cell phone. Id. at 142-43. 

Accordingly, there was ample evidence to support the [c]ourt’s 

finding that [Appellant] robbed and personally shot and killed Mr. 

Jones. As a result, neither trial nor appellate counsel was 

ineffective for failing to raise meritless claims based on the 

sufficiency of the evidence.

PCRA Ct. Op. at 12-13 (footnote omitted and some formatting altered).

Following our review of the record, we discern no error of law in the 

PCRA court’s conclusions, which are supported by the record. See Lawson, 

90 A.3d at 4. As noted by the PCRA court, the Commonwealth presented 

ample evidence demonstrating that Appellant was the shooter. See PCRA Ct. 

Op. at 12-13. Therefore, trial counsel was not ineffective for failing to 

challenge the sufficiency of the identification evidence. See Commonwealth 

v. Rivera, 816 A.2d 282, 292 (Pa. Super. 2003) (reiterating that “trial counsel 

will not be considered ineffective for failing to pursue meritless claims”

(citation omitted and formatting altered)). Likewise, because Appellant has 

failed to prove that trial counsel was ineffective, his ineffectiveness claim 

against direct appeal counsel also fails. See id; see also Parrish, 273 A.3d 

at 1004 n.11; Chmiel, 30 A.3d at 1128. Accordingly, Appellant is not entitled 

to relief. For these reasons, we affirm.

Order affirmed. Jurisdiction relinquished.
J-A21014-23

- 13 -

Date: 12/19/2023