J-S35034-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

MICHAEL DAVIS,

Appellant No. 24 EDA 2015

Appeal from the PCRA Order June 2, 2014

in the Court of Common Pleas of Delaware County

Criminal Division at No.: CP-23-CR-0003651-2007

BEFORE: MUNDY, J., OLSON, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.: FILED JUNE 09, 2015

Appellant, Michael Davis, appeals pro se from the order dismissing his 

petition filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. 

§§ 9541-9546. We affirm.

We summarize the factual and procedural history of this case from the 

PCRA court’s opinion and our own independent review of the record as 

follows. On January 20, 2007, the victim, after ignoring the front doorbell 

and the backdoor buzzer, interrupted Appellant as he attempted to enter the 

victim’s residence by using a screwdriver to pry open a bedroom window. 

Appellant ran across the street, entered the office of a nearby construction 

yard, asked for someone named Tony, and then stole a truck from the yard. 

____________________________________________

* Retired Senior Judge assigned to the Superior Court.
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The victim called the police who searched the area and pursued the truck. 

Appellant led the police on a chase, struck two vehicles, and was arrested 

after being struck by a police car. The officers found the screwdriver and 

two syringes in Appellant’s possession.

On April 15, 2008, Appellant waived his right to a jury trial. On the 

same day, the court convicted Appellant of attempted burglary, possession 

of an instrument of crime, receiving stolen property, possession of drug 

paraphernalia, and fleeing or attempting to elude a police officer.1 On June 

10, 2008, the court sentenced Appellant to an aggregate term of not less 

than twenty-five nor more than fifty years’ imprisonment. The attempted 

burglary was Appellant’s third crime of violence conviction. The trial court 

imposed the mandatory minimum sentence of at least twenty-five years’ 

total confinement. (See PCRA Court Opinion, 12/15/14, at 3-4); see also

42 Pa.C.S.A. § 9714(a)(2).

Appellant timely filed a counseled direct appeal on July 9, 2008. On 

January 5, 2010, this Court affirmed the judgment of sentence. (See 

Commonwealth v. Davis, 991 A.2d 355 (Pa. Super. 2010) (unpublished 

memorandum)). The Pennsylvania Supreme Court denied leave to appeal 

____________________________________________

1 18 Pa.C.S.A. §§ 901, 907, 3925, 35 P.S. § 780-113(a)(32), and 75 

Pa.C.S.A. § 3733, respectively.
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on November 3, 2010. (See Commonwealth v. Davis, 9 A.3d 627 (Pa. 

2010)).

On January 6, 2011, Appellant timely filed a pro se PCRA petition 

positing claims of constitutional violations, ineffective assistance of counsel, 

illegal sentence, and lack of jurisdiction. The PCRA court appointed counsel 

on January 21, 2011. On April 26, 2011, counsel filed an application to 

withdraw with a supporting Turner/Finley2 no merit letter. Appellant filed 

pro se amendments to his PCRA petition on August 10, 2011 and December 

2, 2013.

The PCRA court permitted counsel to withdraw and notified Appellant 

on January 29, 2014 of its intention to dismiss his PCRA petition without a 

hearing pursuant to Pennsylvania Rule of Criminal Procedure 907. See

Pa.R.Crim.P. 907. Appellant filed a pro se response on April 21, 2014.

The PCRA court dismissed the petition on June 2, 2014. Appellant 

timely appealed on June 19, 2014.3

Appellant raises the following question for our review:4

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2 Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth 

v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).

3

Pursuant to the PCRA court’s order, Appellant filed a timely Rule 1925(b) 

statement on August 4, 2014. The court entered its Rule 1925(a) opinion on 

December 15, 2014. See Pa.R.A.P. 1925.

4 Appellant’s brief lists one issue with four subparts. (See Appellant’s Brief, 

at 7). However, he argues his claims as one overarching question 

(Footnote Continued Next Page)
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[]Did the PCRA court commit an error of law, or abuse [its] 

discretion, in permitting PCRA counsel to withdraw with a no 

merit response, when the following underlying issues retained 

merit[:]

[I.] Should PCRA counsel be found to have 

provided ineffective assistance of counsel when:

A) [] Counsel refused to investigate, 

plead[,] and attempt to prove the 

ineffectiveness of appellate counsel in 

failing to address trial counsel’s 

ineffectiveness regarding his failure to 

[thoroughly] prepare and provide proper 

evidentiary testing of a factual account 

by a police officer during the trial?

B) Counsel failed to address a layered 

ineffective counsel claim that trial 

counsel erred in failing to present a 

suggestion to the fact finder that they 

find appellant guilty of criminal trespass 

rather than criminal attempted burglary, 

if guilt was to be found at all?

C) Counsel erred in failing to argue 

that appellate counsel provided 

ineffective assistance in failing to file a 

reply brief in the direct appeal to counter 

misstatements made by the 

Commonwealth in their brief[,] which 

ultimately found there [sic] way into the 

language of the decision of [this] 

[C]ourt?

[II.] Should this Court rule the mandatory sentence 

imposed upon Appellant under 42 Pa.C.S.A. [§] 9714 

(Footnote Continued) _______________________

containing two issues with the first issue containing three subparts. (See id.

at 10-31). Therefore, we have amended his questions to reflect his 

arguments and for ease of reference.
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[] as an illegal sentence and [render] the entire 

sentence void?

(Appellant’s Brief, at 7) (most capitalization omitted).

Before we may address the merits of Appellant’s issues, we must 

determine whether he properly preserved them for our review. Rule 

1925(b) provides, in relevant part:

(b) Direction to file statement of errors complained of on 

appeal; instructions to the appellant and the trial court.—

If the judge entering the order giving rise to the notice of appeal 

(“judge”) desires clarification of the errors complained of on 

appeal, the judge may enter an order directing the appellant to 

file of record in the trial court and serve on the judge a concise 

statement of the errors complained of on appeal (“Statement”).

* * *

(2) Time for filing and service.—The judge shall allow the 

appellant at least 21 days from the date of the order’s entry on 

the docket for the filing and service of the Statement. Upon 

application of the appellant and for good cause shown, the judge 

may enlarge the time period initially specified or permit an 

amended or supplemental Statement to be filed. . . . In 

extraordinary circumstances, the judge may allow for the filing 

of a Statement or amended or supplemental Statement nunc pro 

tunc.

(3) Contents of order.—The judge’s order directing the 

filing and service of a Statement shall specify:

(i) the number of days after the date of entry of the 

judge’s order within which the appellant must file 

and serve the Statement;

(ii) that the Statement shall be filed of record;

(iii) that the Statement shall be served on the judge 

pursuant to paragraph (b)(1);
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(iv) that any issue not properly included in the 

Statement timely filed and served pursuant to 

subdivision (b) shall be deemed waived.

4) Requirements; waiver.

* * *

(ii) The Statement shall concisely identify each 

ruling or error that the appellant intends to challenge 

with sufficient detail to identify all pertinent issues 

for the judge

* * *

(vii) Issues not included in the Statement 

and/or not raised in accordance with the provisions 

of this paragraph (b)(4) are waived.

Pa.R.A.P. 1925(b)(2), (3), (4)(ii) and (vii); see also Commonwealth v. 

Arrington, 86 A.3d 831, 849 (Pa. 2014), cert. denied, 135 S.Ct. 479 

(2014).

Here, the record reflects that on June 19, 2014, the trial court issued 

an order in technical compliance with Rule 1925(b) requiring Appellant to file 

a statement “no later than twenty-one (21) days from the date hereof.” 

(Concise Statement Order, 6/19/14, at 1). The order provided that “any 

issue not properly included in the statement timely filed and served in 

compliance with this order and Pa.R.A.P. No. 1925(b) shall be deemed 

waived.” (Id. at 2) (capitalization omitted and emphasis in original).

On July 8, 2014, due to Appellant’s limited ability to access the 

appellate rules caused by his incarceration, he requested an extension within 

which to file his Rule 1925(b) statement. (See Motion for Extension of 

Time, 7/08/14, at 1). The PCRA court granted him an extension and 
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required Appellant to file a statement “no later than thirty (30) days from 

July 8, 2014.” (Concise Statement Order, 7/09/14, at unnumbered page 1). 

The order provided that “any issue not properly included in the statement 

timely filed and served in compliance with this order as well as Pa.R.A.P. No. 

1925(b) shall be deemed waived.” (Id. at unnumbered page 2) 

(capitalization omitted and emphases in original). Appellant filed his timely 

concise statement on August 4, 2014.

Here, Appellant’s claim that PCRA counsel provided ineffective 

assistance of counsel is not included in his Rule 1925(b) statement. (See 

Appellant’s Statement of Matters Complained of on Appeal, 8/04/14, at 1-2). 

Instead, he merely asserts that trial counsel was ineffective. (See id.). 

Accordingly, all of Appellant’s claims of ineffectiveness of PCRA counsel are 

waived. See Pa.R.A.P. 1925 (b)(4)(vii); Arrington, supra at 849.

Moreover, they would not merit relief.

Our standard of review is well-settled:

[A]n appellate court reviews the PCRA court’s findings of 

fact to determine whether they are supported by the record, and 

reviews its conclusions of law to determine whether they are free 

from legal error. The scope of review is limited to the findings of

the PCRA court and the evidence of record, viewed in the light 

most favorable to the prevailing party at the trial level.

Commonwealth v. Freeland, 106 A.3d 768, 775 (Pa. Super. 2014) 

(citation omitted).

A PCRA petitioner is eligible for relief if the claim is cognizable under 

the PCRA and has not been previously litigated or waived. See 42 Pa.C.S.A. 
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§§ 9543 and 9544; see also Commonwealth v. Ligons, 971 A.2d 1125, 

1137 (Pa. 2009). “We also note that a PCRA petitioner is not automatically 

entitled to an evidentiary hearing. We review the PCRA court’s decision 

dismissing a petition without a hearing for an abuse of discretion.” 

Commonwealth v. Miller, 102 A.3d 988, 992 (Pa. Super. 2014) (citation 

omitted).

To succeed on an ineffective assistance of counsel claim, a petitioner 

must overcome the presumption that counsel is effective and demonstrate 

that counsel’s deficient performance prejudiced him. See Strickland v. 

Washington, 466 U.S. 668, 687 (1984); Commonwealth v. Bennett, 57 

A.3d 1185, 1195 (Pa. 2012). An appellant must demonstrate that: (1) his 

underlying claim is of arguable merit; (2) counsel had no reasonable 

strategic basis for his action or inaction; and (3) the appellant suffered 

actual prejudice as a result. See Commonwealth v. Pierce, 527 A.2d 973, 

975 (Pa. 1987). A failure to satisfy any prong of the Pierce test will require 

rejection of the claim. See Commonwealth v. Spotz, 84 A.3d 294, 311 

(Pa. 2014).

In Appellant’s first claim, he argues that he received ineffective 

assistance of counsel because his PCRA counsel failed to investigate, plead 

and attempt to prove trial counsel’s failure to impeach Colwyn Borough 

Police Officer Steven Sibbett’s testimony. (See Appellant’s Brief, at 10-21). 

The PCRA court properly found that Appellant’s Rule 1925(b) statement was 

too vague to allow for meaningful review where it did not identify the 
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testimony. (See PCRA Ct. Op., at 16); see also Pa.R.A.P. 1925(b)(4)(ii). 

Appellant’s claim would be waived for that reason as well. Furthermore, the 

record supports the court’s determination that Appellant failed to plead and 

prove all three prongs of the Pierce test where trial counsel in fact 

challenged Officer Sibbett’s testimony and there was overwhelming evidence 

identifying Appellant as the perpetrator. Appellant’s first claim would not 

merit relief.

In his second claim, Appellant argues that he received ineffective 

assistance of counsel because PCRA counsel failed to address trial counsel’s 

failure to argue that the evidence was sufficient for criminal trespass but not 

attempted burglary. (See Appellant’s Brief, at 21-24). Our independent 

review of the record reveals that this Court addressed the merits of 

Appellant’s sufficiency argument on direct appeal. (See Davis, supra at *6 

(holding that “Appellant’s attempted burglary conviction was supported by 

adequate evidence[.]”)). Accordingly, there is no arguable merit to 

Appellant’s sufficiency claim. Additionally, the PCRA court properly found 

that trial counsel did attack the legal sufficiency of the attempted burglary 

charge during closing argument. (See PCRA Ct. Op., at 27). The record 

belies Appellant’s claim. Therefore, Appellant has failed to plead and prove 

the arguable merit prong of the Pierce test where the record contradicts 

Appellant’s instant argument. Appellant’s second claim would not merit 

relief.
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In his third claim, Appellant argues that he received ineffective 

assistance of counsel from PCRA counsel because he failed to argue that 

direct appeal counsel did not file a reply brief to address a new matter in the 

direct appeal, which resulted in this Court adopting the Commonwealth’s 

factual misstatements that his hand was inside the home. (See Appellant’s 

Brief, at 25-28). Again, the PCRA court properly found that Appellant’s Rule

1925(b) statement was too vague to allow for meaningful review where it 

did not identify the alleged misstatements. (See PCRA Ct. Op., at 38); see 

also Pa.R.A.P. 1925(b)(4)(ii). Furthermore, the record supports the court’s 

determination that Appellant failed to plead and prove all three prongs of the 

Pierce test where the victim testified repeatedly that Appellant’s hand was 

underneath the open window.

Accordingly, we would find no abuse of discretion in the PCRA court’s 

denial of relief on Appellant’s first issue even were it not waived.

In his remaining issue, Appellant argues that the imposition of a 

mandatory minimum sentence is illegal pursuant to Alleyne v. United 

States, 133 S.Ct. 2151 (2013). (See Appellant’s Brief, at 30-31). We 

disagree.

“[W]e note that issues pertaining to Alleyne go directly to the legality 

of the sentence . . . [and] are questions of law[.] . . . Our standard of review 

over such questions is de novo and our scope of review is plenary.” 

Commonwealth v. Cardwell, 105 A.3d 748, 750 (Pa. Super. 2014) 

(citations omitted).
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Furthermore,

. . . [N]either our Supreme Court, nor the United States 

Supreme Court has held that Alleyne is to be applied 

retroactively to cases in which the judgment of sentence had 

become final. . . . This Court has recognized that a new rule of 

constitutional law is applied retroactively to cases on collateral 

review only if the United States Supreme Court or our Supreme 

Court specifically holds it to be retroactively applicable to those 

cases.

Miller, supra at 995 (citations omitted).

Here, Appellant was sentenced on June 10, 2008. This Court affirmed 

the judgment of sentence on January 5, 2010, and our Supreme Court 

denied allocator on November 3, 2010. Appellant did not seek a writ of 

certiorari from the United States Supreme Court. Therefore, Appellant’s 

judgment of sentence became final on February 1, 2011, when the period for 

him to file a petition for a writ of certiorari expired. See 42 Pa.C.S.A. § 

9545(b)(3). As already noted, Alleyne was not decided until 2013. 

Accordingly, Alleyne does not apply to Appellant. See Miller, supra at 

995.5

Order affirmed.

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5 We note that “[n]o Pennsylvania case has applied Alleyne to sentences 

enhanced solely by prior convictions.” Commonwealth v. Lane, 81 A.3d 

974, 976 n.5 (Pa. Super. 2013), appeal denied, 92 A.3d 811 (Pa. 2014).
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 6/9/2015