J. S76025/16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

v. :

:

KHASHION M. GARLAND, :

:

Appellant : No. 3551 EDA 2015

Appeal from the PCRA Order November 10, 2015

In the Court of Common Pleas of Philadelphia County 

Criminal Division at No.: CP-51-CR-0007256-2009

BEFORE: STABILE, J., DUBOW, J., and STEVENS, P.J.E.*

MEMORANDUM BY DUBOW, J.: FILED JANUARY 06, 2017

Appellant, Khashion M. Garland, appeals from the Order entered in the 

Philadelphia County Court of Common Pleas dismissing his first Petition filed 

under the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-9546. 

After careful review, we affirm.

On September 17, 2010, a jury convicted Appellant of Third-Degree 

Murder1and related firearms offenses. On December 17, 2010, the trial 

court imposed an aggregate sentence of 221⁄2 to 45 years’ incarceration. 

Appellant filed a direct appeal, and this Court affirmed Appellant’s Judgment 

 

*

Former Justice specially assigned to the Superior Court.

1 18 Pa.C.S. § 2502(c).
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of Sentence on March 1, 2013.2 See Commonwealth v. Garland, 63 A.3d 

339 (Pa. Super. 2013). Appellant did not seek further review.

On February 28, 2014, Appellant filed the instant pro se PCRA Petition, 

his first. The trial court appointed counsel, and counsel filed an Amended 

PCRA Petition on April 29, 2015. On October 6, 2015, the PCRA court issued 

a Pa.R.Crim.P. 907 Notice advising Appellant of its intent to dismiss his 

Petition. Appellant did not file a response.

On November 9, 2015, the PCRA court dismissed Appellant’s Petition 

without a hearing.

Appellant filed a timely Notice of Appeal.3 Appellant presents one 

issue for our review:

Did the trial court err in not reinstating [A]ppellant’s right to file 

an appeal nunc pro tunc from the [J]udgment of [S]entence due 

to ineffective assistance [of] appellate defense counsel on direct 

appeal in that appellate counsel was ineffective for waiving the 

issue of trial court’s error in denying the motion to suppress the 

firearm that was allegedly found on the [A]pellant at the time of 

his arrest[?]

Appellant’s Brief at 2.

We review the denial of a PCRA petition to determine whether the 

record supports the PCRA court’s findings and whether its order is otherwise 

 

2 On direct appeal, this Court concluded, inter alia, that Appellant waived his 

first claim regarding his motion to suppress the firearm he discarded when 

fleeing from police on the night of his arrest because he failed to present this 

specific issue in his Pa.R.A.P. 1925(b) Statement.

3 The trial court did not order a Pa.R.A.P. 1925(b) Statement, but the trial 

court filed a Pa.R.A.P. 1925(a) Opinion on February 17, 2016.
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free of legal error. Commonwealth v. Fears, 86 A.3d 795, 803 (Pa. 

2014). This Court grants great deference to the findings of the PCRA court if 

they are supported by the record. Commonwealth v. Boyd, 923 A.2d 513, 

515 (Pa. Super. 2007). We give no such deference, however, to the court’s 

legal conclusions. Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa. 

Super. 2012). There is no right to a PCRA hearing; a hearing is unnecessary 

where the PCRA court can determine from the record that there are no 

genuine issues of material fact. Commonwealth v. Jones, 942 A.2d 903, 

906 (Pa. Super. 2008).

To be eligible for relief pursuant to the PCRA, Appellant 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 PCRA 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 raised it but failed to do so 

before trial, at trial, during unitary review, on appeal or in a prior state 

postconviction proceeding.” 42 Pa.C.S. § 9544(b).

“It is well settled that when [] counsel files a Pa.R.A.P. 1925(b) 

statement that fails to preserve any issues for appellate review, the PCRA 

court may reinstate the petitioner’s direct appeal rights nunc pro tunc.” 

Commonwealth v. Pulanco, 954 A.2d 639, 642 (Pa. Super. 2008). 

However, in instances where counsel’s acts or omissions caused waiver of 
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one or more, but not all, issues on direct appeal, the petitioner “must 

establish that counsel’s ineffectiveness so undermined the truth-determining 

process so as to render unreliable the adjudication of guilt or innocence.” 

Id.

The law presumes counsel has rendered effective assistance. 

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

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

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

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

particular course of conduct pursued by counsel did not have some 

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

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

of the challenged proceedings would have been different.” Commonwealth 

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

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

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

As the PCRA court opined in its Rule 1925(a) Opinion:

Petitioner’s ineffectiveness claim is without arguable merit.

Police Officer Galiczynski testified that Officer Perry and he 

responded to a report of a gunpoint robbery at 12:50 p.m. on 

March 13, 2009. Both twelve–year veteran police officers were 

in full uniform, driving a marked police vehicle. Approximately 

two blocks away from the scene, Officer Galiczynski observed 

[Appellant] riding a bicycle “very fast” in the opposite direction 

of the robbery. [Appellant] was “sweating heavily” and 
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appeared “startled” when he looked in the direction of the 

officers.

Officer Galiczynski and Officer Perry made a U-turn and activated 

their lights and sirens. [Appellant] dropped his bicycle in a 

common driveway and ran behind a home. Officer Galiczynski 

followed on foot and observed [Appellant] hide behind a vehicle. 

Officer Galiczynski gave verbal commands. [Appellant] refused 

to show his hands and again fled on foot. At that time, Officer 

Galiczynski observed [Appellant] reach down to his waistband 

area, pull out a handgun, drop it, and continue to run. After a 

brief chase, Officer Galiczynski and Officer Perry apprehended 

[Appellant] and recovered the .380 semi-automatic firearm that 

Officer Galiczynski observed [Appellant] discard.

The trial court properly denied the motion to suppress the 

firearm because the evidence established that the officers had 

reasonable suspicion to pursue [Appellant] based on the totality 

of the circumstances. Since the denial of the motion to suppress 

was correct, trial counsel’s failure to preserve this issue did not 

constitute ineffective assistance of counsel. Trial counsel will not 

be deemed ineffective for failing to pursue a meritless issue.

Trial Court Opinion, filed 2/17/16, at 3, 5-6 (citations omitted). We agree 

with the trial court’s assessment.

As noted by the PCRA court, the evidence shows that Appellant’s 

underlying claim lacks arguable merit. Because Appellant failed to prove his 

underlying claim is of arguable merit, Appellant’s ineffectiveness claim fails.

The record supports the PCRA court’s findings and its Order is 

otherwise free of legal error. Accordingly, we affirm.

Order affirmed.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 1/6/2017