J. S76004/14

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA :

:

IN THE SUPERIOR COURT OF

PENNSYLVANIA

v. :

:

JAMAR LASHAWN TRAVILLION, : No. 1461 WDA 2013

:

 Appellant :

Appeal from the PCRA Order, August 19, 2013,

in the Court of Common Pleas of Allegheny County

Criminal Division at No. CP-02-CR-0006704-2003

BEFORE: FORD ELLIOTT, P.J.E., PANELLA AND OLSON, JJ. 

MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED FEBRUARY 10, 2015

Jamar Lashawn Travillion appeals, pro se, from the order denying his 

first petition for post-conviction relief filed pursuant to the Post Conviction 

Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. We affirm. 

The facts, as summarized by a prior panel of this court on direct 

appeal, are as follows:

Debra Lynn Diodati was the manager of the 

Rainbow Apparel Store in Pittsburgh. She arrived at 

9:30 a.m. to open the store after a snowstorm. As 

she approached the door, she saw a man in a winter 

jacket holding a manila folder in his left hand. In 

summary, the man told her to turn off the store’s 

alarm, and forced her to the area of the cash 

registers where there was a safe. He put the folder 

down and took two envelopes containing a total of 

$200. After he took the money from the safe by the 

cash registers, he pushed Diodati toward her office, 

ripping a hinged door from the wall. He told her to 

open another safe, which she did. He took two bank 
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deposit bags containing over $6,000. He told her to 

unlock the back door so he could leave and got into 

a running car where there was a getaway driver.

Later, Diodati discovered the manila folder still 

on the floor. The police found several fingerprints on 

the folder and on papers inside the folder which 

matched Travillion’s left hand. No other fingerprints, 

including one on the door ripped from its hinges, 

matched Travillion. Diodati described her robber as 

being in his early twenties, well spoken, five feet 

nine or ten inches tall, weighing about 160 pounds. 

Travillion is six foot one and weighs about one 

hundred and seventy pounds. Because he was 

wearing some kind of mask, Diodati could not 

identify his face. While the identification did not 

exactly match Travillion, it was close enough not to 

exclude him as well. 

Commonwealth v. Travillion, No. 1773 WDA 2007, unpublished 

memorandum at 2 (Pa.Super. filed November 5, 2008).

Following a jury trial on December 18, 2006, appellant was found 

guilty of robbery. The Commonwealth filed notice to seek the mandatory 

minimum sentence, as this was appellant’s second crime of violence. On 

January 3, 2007, appellant was sentenced to serve 10 to 20 years’ 

imprisonment, which was to run consecutive to the sentence of life without 

parole appellant was then serving in a separate case.

Post-sentence motions were filed and denied by operation of law on 

August 29, 2007. Thomas Farrell, Esq., was appointed to represent 

appellant for purposes of appeal. A timely direct appeal was filed, and on 

November 5, 2008, a panel of this court affirmed judgment of sentence 

finding the evidence presented was sufficient to sustain his conviction. (Id.) 
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Appellant’s petition for reargument was denied on January 12, 2009. On 

February 8, 2009, appellant filed a petition for allowance of appeal in the 

Pennsylvania Supreme Court; the petition was denied on July 7, 2009.

On May 21, 2010, appellant filed a timely pro se PCRA petition. 

Charles R. Pass, III, Esq., was appointed as counsel; and on January 10, 

2011, Attorney Pass filed a motion to withdraw as counsel 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) (en banc). 

On January 12, 2011, the PCRA court issued a notice of intent to dismiss the 

petition and counsel was permitted to withdraw. Thereafter, appellant filed 

two separate motions for extension of time so he could hire private counsel 

and/or amend his original PCRA petition; both extensions were granted. 

(Docket #40, 42.)1 Nothing further was filed on appellant’s behalf, and on 

August 19, 2013, the PCRA court dismissed appellant’s petition without a 

hearing. 

On September 9, 2013, appellant filed a pro se notice of appeal and 

complied with the trial court’s order to file a concise statement of errors 

complained of on appeal pursuant to Pa.R.A.P., Rule 1925(b), 42 Pa.C.S.A., 

and the trial court has filed an opinion. The following issues have been 

presented on appeal:

 

1 We also note that on August 5, 2011, appellant filed a third motion for 

extension of time. The trial court did not expressly grant this motion but did 

not dismiss appellant’s petition until August 19, 2013. (Docket #45.)
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1. Did the PCRA court err and/or violate 

Appellant’s rights for denying relief in this 

post-conviction action without a hearing? 

2. Did the PCRA court err and/or violate 

Appellant’s rights for granting PCRA counsel 

leave to withdraw from this post-conviction 

action? 

3. Did the PCRA court err and/or violate 

Appellant’s rights for dismissing this 

post-conviction action without first disposing of 

the issues raised by one motion for extension 

of time to hire counsel and/or amend the 

original pro se petition?

Appellant’s brief at 4.

This Court’s standard of review regarding an order 

denying a petition under the PCRA is whether the 

determination of the PCRA court is supported by the 

evidence of record and is free of legal error. 

Commonwealth v. Halley, 582 Pa. 164, 870 A.2d 

795, 799 n. 2 (2005). The PCRA court’s findings will 

not be disturbed unless there is no support for the 

findings in the certified record. Commonwealth v. 

Carr, 768 A.2d 1164, 1166 (Pa.Super.2001).

Commonwealth v. Turetsky, 925 A.2d 876, 879 (Pa.Super. 2007), 

appeal denied, 940 A.2d 365 (Pa. 2007). Further, to be eligible for relief, a 

petitioner must plead and prove by a preponderance of the evidence that 

“the allegation of error has not been previously litigated or waived.” 

42 Pa.C.S.A. § 9543(3). 

Moreover, 

[t]he right to an evidentiary hearing on a 

post-conviction petition is not absolute. A hearing 

may be denied if a petitioner’s claim is patently 

frivolous and is without a trace of support either in 
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the record or from other evidence. A post-conviction 

petition may not be summarily dismissed, however, 

as “patently frivolous” when the facts alleged in the 

petition, if proven, would entitle the petitioner to 

relief.

Commonwealth v. Granberry, 644 A.2d 204, 208 (Pa.Super. 1994), citing 

Commonwealth v. Box, 451 A.2d 252 (Pa.Super. 1982).

With respect to appellant’s claims of ineffective assistance, we note 

that appellant is required to make the following showing in order to succeed 

with such a claim: (1) that the underlying claim is of arguable merit; 

(2) that counsel had no reasonable strategic basis for his or her action or 

inaction; and (3) that, but for the errors and omissions of counsel, there is a 

reasonable probability that the outcome of the proceedings would have been 

different. Commonwealth v. Rivera, 10 A.3d 1276, 1279 (Pa.Super. 

2010). The failure to satisfy any prong of this test will cause the entire 

claim to fail. Commonwealth v. Daniels, 947 A.2d 795, 798 (Pa.Super. 

2008). Finally, counsel is presumed to be effective, and appellant has the 

burden of proving otherwise. Commonwealth v. Pond, 846 A.2d 699, 708 

(Pa.Super. 2003).

Appellant first argues the PCRA court erred in dismissing his petition 

without an evidentiary hearing as his petition set forth “unresolved 

controversies of material fact.” (Appellant’s brief at 10-11.) Appellant 

claims that the Commonwealth committed a Brady2violation by concealing 

 

2 Brady v. Maryland, 373 U.S. 83 (1963).
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certain fingerprint evidence and trial counsel was ineffective for failing to 

object. Specifically, appellant argues that the Commonwealth divulged there 

were other and/or smaller fingerprints on the manila folder found at the 

scene, and these would have been exculpatory since “the Commonwealth 

offer[ed] no eyewitness identification or substantial evidence that might 

reasonably individualize Appellant as the actor here any more than it would 

Joe Schmoe.” (Appellant’s brief at 20.) 

In Commonwealth v. Weiss, 986 A.2d 808, 814-815 (Pa. 2009), our 

supreme court explained the law and standards to be applied in addressing a 

Brady claim. As the court noted, the United States Supreme Court in 

Brady held that due process is violated when the prosecution withholds 

evidence favorable to a defendant. Id. at 814. To establish a violation of 

Brady, a defendant is required to demonstrate: (1) the evidence was 

suppressed by the Commonwealth, either willfully or inadvertently; (2) the 

evidence was favorable to the defendant; and (3) the evidence was material, 

in that its omission resulted in prejudice to the defendant. Commonwealth 

v. Dennis, 17 A.3d 297, 308 (Pa. 2011); Commonwealth v. Lambert, 884 

A.2d 848, 854 (Pa. 2005).

The burden rests with appellant to “prove, by reference to the record, 

that evidence was withheld or suppressed by the prosecution.” 

Commonwealth v. Paddy, 15 A.3d 431, 451 (Pa. 2011). There is no 

Brady violation when the appellant knew or, with reasonable diligence, 
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could have uncovered the evidence in question, or when the evidence was 

available to the defense from non-governmental sources. Paddy, 15 A.3d 

at 451; Lambert, 884 A.2d at 856. The omission, once established, must 

be evaluated in the context of the entire record. Commonwealth v. 

Green, 640 A.2d 1242, 1245 (Pa. 1994). Brady does not require the 

disclosure of information “that is not exculpatory but might merely form the 

groundwork for possible arguments or defenses.” Paddy, 15 A.3d at 450; 

Lambert, 884 A.2d at 856. Similarly, Brady does not require the 

prosecution to disclose “every fruitless lead” considered during the 

investigation of a crime. Paddy, 15 A.3d at 451; Lambert, 884 A.2d at 

857.

Appellant's claim fails for a number of reasons. First, and most 

significantly, appellant fails to establish by reference to the record the 

existence of the specific material he claims was not disclosed. Second, he 

fails to demonstrate how he could not have ascertained the existence of 

“other fingerprints” or “smaller prints” appearing on the manila file folder. 

Appellant also fails to show that the alleged evidence was either material or 

exculpatory. Finally, appellant fails to establish that even if the alleged

material was disclosed, a different verdict would have likely occurred, and 

therefore, there was no prejudice. As appellant’s underlying claim is 

meritless, counsel could not be found to be ineffective. Hence, appellant is 

not entitled to relief.
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Next, appellant argues that the PCRA court erred by granting 

appointed counsel’s leave to withdraw. (Appellant’s brief at 38.) The heart 

of his claim seems to be that counsel did not communicate with him before 

determining his issues were “wholly frivolous.” (Id.) Appellant, however, 

was advised of his opportunity to respond to counsel’s no-merit letter and 

address the merits of his contentions. Appellant’s requests for additional 

time to retain private counsel were granted; neither a counseled response 

nor a pro se response was filed. We cannot find that the PCRA court erred 

by permitting Attorney Pass to withdraw and by relying on the no-merit 

letter. No relief is due.

The final issue presented is whether the PCRA court properly dismissed 

the petition without disposing of issues appellant stated he wished to raise in 

a motion for an extension of time to hire counsel and/or amend the original 

pro se petition. As stated, the PCRA court granted appellant two extensions 

of time.3 In its Rule 1925(a) opinion, the PCRA court detailed why each of 

appellant’s 16 claims were meritless. Appellant is not entitled to relief. 

Order affirmed. 

 

3 Additionally, the PCRA court did not dismiss appellant’s petition until 

August 19, 2013; appellant failed to file an amended petition or to obtain 

counsel for over two years.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 2/10/2015