J-S52017-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

MICHAEL TELLEED ROSS

Appellant No. 2972 EDA 2015

Appeal from the PCRA Order Dated September 4, 2015

In the Court of Common Pleas of Philadelphia County

Criminal Division at No: CP-51-CR-0009616-2013

BEFORE: FORD ELLIOTT, P.J.E., STABILE, and STRASSBURGER,*JJ.

DISSENTING MEMORANDUM BY STABILE, J.: FILED January 12, 2017

I respectfully dissent because the Majority incorrectly concludes 

Alleyne1rendered Section 7508 of the Crimes Code unconstitutional.

The sole issue before us is whether the PCRA court erred in declining 

to hold an evidentiary hearing on Appellant’s allegation that his trial counsel 

was ineffective for failing to advise him of Alleyne’s impact on 

Pennsylvania’s mandatory minimum statutes. Put differently, Appellant here 

argues that his counsel was ineffective for failing to predict that Alleyne

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* Retired Senior Judge assigned to the Superior Court.

1 Alleyne v. United States, 133 S. Ct. 2151, 2161-63 (2013) (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).
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would trigger Pennsylvania courts to declare unconstitutional mandatory 

minimum statutes, such as Section 7508. 

Unlike the Majority, I believe Appellant’s argument lacks merit. It is 

well-settled that counsel will not be deemed ineffective for failing to 

anticipate changes in law. Commonwealth v. Bennett, 57 A.3d 1185, 

1201 (Pa. 2012) (recognizing that “counsel will not be faulted for failing to 

predict change in the law.”); see also Commonwealth v. Cox, 983 A.2d 

666, 702 (Pa. 2009) (“The law is clear that counsel cannot be held 

ineffective for failing to anticipate a change in the law.”). Instantly, 

although it is true that Alleyne was decided approximately three months 

before Appellant was sentenced, Pennsylvania courts had not ruled at the 

time of his sentencing whether Alleyne would invalidate state mandatory 

minimum statutes. In fact, it was not until Commonwealth v. Newman, 

99 A.3d 86 (Pa. Super. 2014) (en banc) (Ford Elliot, P.J.E.), that this Court 

held that mandatory minimum statutes were unconstitutional and nonseverable. Newman was vindicated by our Supreme Court’s decision in 

Commonwealth v. Hopkins, 117 A.3d 247 (Pa. 2015). Accordingly, 

Appellant’s counsel cannot be faulted for failing to predict the full effect of 

Alleyne on Pennsylvania mandatory minimum statutes.2 See Bennett, 

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2 To the extent the learned Majority asserts that “Alleyne rendered 

[S]ection 7508 []constitutionally infirm,” Maj. Mem. at 5, I must disagree. 

Alleyne held only that under the Sixth Amendment to the United States 

Constitution, a jury must find beyond a reasonable doubt any facts that 

(Footnote Continued Next Page)
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supra; but compare Melendez-Negron, 123 A.3d at 1090-91 (trial 

counsel was ineffective for permitting appellant to enter into a negotiated 

guilty plea featuring a mandatory minimum sentence under Section 9712.1 

after Section 9712.1 was declared unconstitutional in Commonwealth v. 

Munday, 78 A.3d 661 (Pa. Super. 2013)). 

Even if Appellant’s claim had merit, as the Majority believes, it still 

fails because Appellant failed to discuss adequately the prejudice prong of 

the Pierce test. As this Court recently emphasized in Commonwealth v. 

Reyes-Rodriguez, 111 A.3d 775, 780 (Pa. Super. 2015) (en banc), “[a] 

petitioner must prove all three factors of the Pierce test, or the 

[ineffectiveness] claim fails. In addition, on appeal, a petitioner must 

adequately discuss all three factors” of the test outlined in Commonwealth 

v. Pierce, 527 A.2d 973 (Pa. 1987). See Reyes-Rodriguez, supra. Here, 

Appellant’s brief contains only a one-sentence allegation of prejudice: 

“[Appellant] was prejudiced by this failure of counsel because [Appellant] 

received a more severe sentence.” Appellant’s Brief at 6. Appellant’s 

allegation of prejudice does not explain how his sentence would have been 

(Footnote Continued) _______________________

increase a mandatory minimum sentence. See Alleyne, 133 S. Ct. at 2155. 

Here, as noted, no mandatory minimum sentence was applied as part of the 

negotiated plea deal. Thus, the trial court did not determine any facts 

increasing a mandatory minimum sentence. But compare 

Commonwealth v. Melendez-Negron, 123 A.3d 1087, 1089 (Pa. Super. 

2015) (vacating the appellant’s guilty plea because it included a mandatory 

minimum sentence under 42 Pa.C.S.A. § 9712.1 for firearms possession). 

 
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less severe. Specifically, Appellant does not allege what crimes he was 

facing, or what the standard range sentence was for those crimes—let alone 

the offense gravity score or his prior record score.3 Accordingly, I would 

conclude that the PCRA court did not err in dismissing Appellant’s PCRA 

petition without a hearing.

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3 As the Commonwealth points out:

In addition to the open PWID and conspiracy case to which 

[Appellant] pled guilty, he had two open violations of probation 

cases on the court’s list for disposition that same day, including 

one for a previous PWID conviction. [The trial court] found 

[Appellant] in violation of both probations, but gave no 

additional sentence. Had [Appellant] proceeded to trial and been 

convicted on all of the charges he faced, he could have been 

sentenced to up to 30 years in prison.

Appellee’s Brief at 7.