J-S03040-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

TYREE MILES,

Appellant

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IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 1599 EDA 2018

Appeal from the PCRA Order May 11, 2018

in the Court of Common Pleas of Philadelphia County

Criminal Division at No(s): CP-51-CR-0010209-2009, 

CP-51-CR-0013007-2009, CP-51-CR-0013008-2009

BEFORE: BENDER, P.J.E., OLSON, J., and MUSMANNO, J.

MEMORANDUM BY MUSMANNO, J.: FILED APRIL 16, 2019

Tyree Miles (“Miles”) appeals from the Order dismissing his Petition filed 

pursuant to the Post Conviction Relief Act (“PCRA”). See 42 Pa.C.S.A. 

§§ 9541-9546. We affirm.

On August 5, 2010, a jury found Miles guilty of rape and related crimes, 

following his attacks on three women.1 Following the completion of a presentence investigation, the trial court sentenced Miles to an aggregate term 

of 36 to 72 years in prison.

This Court affirmed Miles’s judgment of sentence on March 9, 2012. See 

Commonwealth v. Miles, 47 A.3d 1238 (Pa. Super. 2012) (unpublished 

memorandum). On June 17, 2013, Miles filed his first pro se PCRA Petition, 

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1 Miles was originally charged at three separate dockets, which were 

consolidated for trial.
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and the PCRA court appointed Miles counsel. Miles’s PCRA counsel filed an 

Amended Petition, asserting that Miles’s appellate counsel had abandoned 

Miles by failing to file a petition for allowance of appeal with the Pennsylvania 

Supreme Court, after indicating he would to do so. On July 20, 2015, the 

PCRA court entered an Order granting Miles’s Petition, and reinstating his right 

to file a petition for allowance of appeal, nunc pro tunc. Miles subsequently 

filed a nunc pro tunc Petition for allowance of appeal, which our Supreme 

Court denied on December 29, 2015. See Commonwealth v. Miles, 129 

A.3d 1242 (Pa. 2015).

Miles filed the instant pro se PCRA Petition on February 5, 2016, and a 

pro se Amended Petition on May 26, 2016. The PCRA court appointed Miles 

counsel, who filed an Amended Petition on his behalf. Following appropriate 

Notice pursuant to Pa.R.Crim.P. 907, the PCRA court dismissed Miles’s Petition 

without a hearing. Miles filed a timely Notice of Appeal and a court-ordered 

Pa.R.A.P. 1925(b) Concise Statement of matters complained of on appeal. 

Miles now raises the following questions for our review:

I. Whether the [PCRA] [c]ourt erred in failing to grant an 

evidentiary hearing?

II. Whether the [PCRA] [c]ourt erred in failing to grant [Miles’s] 

PCRA Petition in whole or in part?

Brief for Appellant at 8.

“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 
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by the evidence of record and is free of legal error.” Commonwealth v. 

Rizvi, 166 A.3d 344, 347 (Pa. Super. 2017). Additionally, there is no absolute 

right to an evidentiary hearing, and a PCRA court has discretion to deny a 

petition without a hearing “if the PCRA court determines that the petitioner’s 

claim is patently frivolous and is without a trace of support in either the record 

or from other evidence.” Commonwealth v. Hart, 911 A.2d 939, 941 (Pa. 

Super. 2006). “To obtain reversal of a PCRA court’s decision to dismiss a 

petition without a hearing, an appellant must show that he raised a genuine 

issue of fact which, if resolved in his favor, would have entitled him to relief, 

or that the court otherwise abused its discretion in denying a hearing.” 

Commonwealth v. Hanible, 30 A.3d 426, 438 (Pa. 2011) (citation and 

brackets omitted). Thus, when the PCRA court dismisses a petition without 

an evidentiary hearing, we “examine each issue raised in the PCRA petition in 

light of the certified record before it in order to determine if the PCRA court 

erred in its determination that there were no genuine issues of material fact 

in controversy and in denying relief without conducting an evidentiary 

hearing.” Commonwealth v. Khalifah, 852 A.2d 1238, 1240 (Pa. Super. 

2004).

We will address Miles’s claims together. In his first claim, Miles argues 

that the PCRA court erred by denying his Petition without a hearing, because 

he raised meritorious claims of ineffective assistance of his prior counsel. See 

Brief for Appellant at 23-25. In his second claim, Miles challenges his trial 

counsel’s effectiveness. See id. at 25-39.
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The PCRA permits relief when a conviction is the result of “[i]neffective 

assistance of counsel which, in the circumstances of the particular case, so 

undermined the truth-determining process that no reliable adjudication of 

guilt or innocence could have taken place.” 42 Pa.C.S.A. § 9543(a)(2)(ii).

It is well-settled that counsel is presumed to have provided 

effective representation unless the PCRA petitioner pleads and 

proves all of the following: (1) the underlying claim is of arguable 

merit; (2) counsel’s action or inaction lacked any objectively 

reasonable basis designed to effectuate his client’s interest; and 

(3) prejudice, to the effect that there was a reasonable probability 

of a different outcome if not for counsel’s error.

Commonwealth v. Franklin, 990 A.2d 795, 797 (Pa. Super. 2010) (citations 

omitted); see also Commonwealth v. Charleston, 94 A.3d 1012, 1019 (Pa. 

Super. 2014) (stating that “[a] defendant raising a claim of ineffective 

assistance of counsel is required to show actual prejudice; that is, that 

counsel’s ineffectiveness was of such a magnitude that it could have 

reasonably had an adverse effect on the outcome of the proceedings.” 

(citations and some brackets omitted)). Additionally, “as to ineffectiveness 

claims in particular, if the record reflects that the underlying issue is of no 

arguable merit or no prejudice resulted, no evidentiary hearing is required.” 

Commonwealth v. Baumhammers, 92 A.3d 708, 726-27 (Pa. 2014).

Miles identifies five arguments regarding the effectiveness of his trial 

counsel, which we will address separately. In his first claim, Miles argues that 

trial counsel was ineffective for failing to file a post-sentence motion 

challenging the verdicts as against the weight of the evidence presented at 
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trial. See Brief for Appellant at 26-29. Miles contends that the victims’ 

testimony was not credible, and identifies specific statements in each victim’s 

testimony which Miles believes to be incredible.2 Id. at 27-28.

Here, Miles has failed to show that his underlying claim, a challenge to 

the weight of the evidence, is of arguable merit. A successful challenge to the 

weight of the evidence required Miles to establish that the evidence supporting 

his conviction was “so tenuous, vague and uncertain that the verdict shocks 

the conscience of the court.” Commonwealth v. Smith, 146 A.3d 257, 265 

(Pa. Super. 2016) (citation omitted). “One of the least assailable reasons for 

granting or denying a new trial is the lower court’s conviction that the verdict 

was or was not against the weight of the evidence....” Commonwealth v. 

Clay, 64 A.3d 1049, 1055 (Pa. 2013). Moreover, “[t]he weight of the evidence 

is exclusively for the finder of fact[,] who is free to believe all, none or some 

of the evidence and to determine the credibility of the witnesses.” 

Commonwealth v. Talbert, 129 A.3d 536, 545 (Pa. Super. 2015) (citation 

omitted).

The PCRA court reviewed the testimony presented at trial, and 

concluded that “the testimony of each victim was both consistent and 

compelling.” PCRA Court Opinion, 8/8/18, at 6, 8; see also id. at 6-8 (setting 

forth the relevant testimony presented by each witness), 8 (explaining that 

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2 Miles does not include specific citations to the trial transcripts in support of 

his claim. See Pa.R.A.P. 2119(c).
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DNA samples from each victim were matched to Miles, further corroborating 

the victims’ testimony). The trial court specifically found the victims’ 

testimony credible, see id. at 8, and we may not disturb such a finding, or reweigh the evidence on appeal. See Talbert, supra. Because the record 

supports this credibility finding, we agree with the PCRA court’s determination 

that Miles’s underlying claim lacks arguable merit. Additionally, Miles has not 

established that there was a reasonable probability that the outcome of the 

proceedings would have been different if counsel had filed a post-sentence 

motion. See Franklin, 990 A.2d at 797; Charleston, supra. Therefore, we 

cannot conclude that trial counsel was ineffective for failing to preserve a 

challenge to the weight of the evidence.

In his second argument, Miles claims that trial counsel was ineffective 

for failing to request a mistrial based on prosecutorial misconduct, thereby 

waiving the issue for appeal. Brief for Appellant at 29, 31. Miles directs our 

attention to the following statement, made by the prosecutor during closing 

arguments:

[D]efense counsel[,] ... in his opening statement[,] said there are 

two sides to every story. The part he didn’t finish about that was 

only one side is going to be right, only one side makes sense. He 

said that you would hear the other side of this story. We heard 

all the witnesses testify. There was no other side of the story.

Id. at 29 (citation omitted). Miles argues that the prosecutor’s remarks “were 

so prejudicial and inflammatory that [Miles’s] right[] to a fair trial w[as]

compromised.” Id. at 31. Miles acknowledges, however, that trial counsel 
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objected to the statement, and the trial court gave a cautionary instruction to 

the jury.3 Id. at 29-30.

Miles correctly points out that this Court, on direct appeal, determined 

that Miles had waived his argument for a new trial, based on prosecutorial 

misconduct, by failing to request a mistrial after the trial court issued a 

cautionary instruction. See Miles, 47 A.3d 1238 (unpublished memorandum 

at 4). However, this Court also addressed the merits of the claim as follows:

A prosecutor’s comment concerning a defendant’s choice 

not to testify is a violation of the defendant’s right against selfincrimination. However, an improper remark by a prosecutor 

concerning the failure to testify may be appropriate if it is in fair 

response to the argument and comment of defense counsel. The 

prosecution is permitted to respond to arguments the defense has 

raised.

The defense in its opening statement stated, “There are two 

sides to every story.... Not one.” By making that statement, the 

defense informed the jury that they would be hearing two stories, 

that of the prosecution and that of the defense. The prosecution 

argued that the defense did not establish through evidence that 

there was another side to the story. The prosecution’s statement 

went to rebutting the defense’s opening statement and not to the 

defendant’s decision not to testify, and therefore, it was not 

improper.

Id. (unpublished memorandum at 4) (citations omitted). Because we agree 

with this Court’s prior analysis of the merits of this issue, we conclude that 

Miles’s underlying claim lacks arguable merit. Further, Miles has not argued 

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In its cautionary instruction, the trial court directed the jury to disregard the 

above-described argument, and reiterated that the defendant in a criminal 

case has no burden to testify or present any evidence. See Miles, 47 A.3d 

1238 (unpublished memorandum at 3) (citing N.T., 8/4/10, at 134).
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or established that he was prejudiced as a result of trial counsel’s inaction 

(i.e., that the trial court would have granted a mistrial, or that this Court would 

have ruled in his favor on appeal). See Franklin, supra; Charleston, supra. 

Therefore, Miles has failed to establish that he is entitled to relief on this basis.

Miles next contends that trial counsel was ineffective for stating, during 

opening arguments, that “there are two sides to every story.” Brief for 

Appellant at 31. According to Miles, this statement led the jury to believe that 

he would testify during trial. Id. at 31-32.

Miles fails to include any citations to relevant legal authority in support 

of his assertion. See Pa.R.A.P. 2119(a) (providing that the argument shall 

include “such discussion and citation of authorities as are deemed pertinent.”). 

Accordingly, this claim is waived. See Commonwealth v. Samuel, 102 A.3d 

1001, 1005 (Pa. Super. 2014) (concluding that appellant waived his claim by 

failing to adequately develop his argument or provide citation to and 

discussion of relevant authority).

In his fourth argument, Miles claims that trial counsel was ineffective for 

failing to file a motion to reconsider his sentence. Brief for Appellant at 33. 

Miles asserts that the sentencing court imposed a harsh and unreasonable 

sentence, and failed to consider various mitigating factors. Id. 

The PCRA court addressed Miles’s claim as follows:

Contrary to [Miles’s] arguments, the [trial c]ourt explicitly 

considered all of the mitigating information presented on [Miles’s] 

behalf, including the information in the pre[-]sentence report, and 

all of the evidence presented during the sentencing hearing, which 
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included testimony from [Miles’s] girlfriend and a statement from 

[Miles]. The [c]ourt also explicitly considered the evidence that 

was presented during [Miles’s] trial ... and [Miles’s] mental health 

evaluation. Moreover, the [c]ourt considered the sentencing 

guidelines, the need to protect the public, the gravity of the 

offense and the impact on the victims, and [Miles’s] rehabilitative 

needs. From all of this, the [c]ourt fashioned a sentence that it 

felt was appropriate and reasonable. Because the [trial c]ourt

would have denied any motion for reconsideration of sentence, 

[Miles] was not prejudiced by trial counsel’s failure to file such a 

motion.

...

Each of the sentences was within the standard range of the 

sentencing guidelines, with the exception of the terroristic threats 

charges, the [involuntary deviate sexual intercourse] charge as to 

[the second victim], and the rape charge as to [the third victim]. 

The sentences on these latter charges were all within the 

aggravated range of the sentencing guidelines. The aggravated 

factors [] were outlined by the [c]ourt at sentencing.... 

Notwithstanding [Miles’s] pattern of predatory behavior, the 

[c]ourt refrained from imposing even one sentence that departed 

from the sentencing guidelines.

Moreover, the magnitude of [Miles’s] criminal behavior 

established by the record demonstrates that the [trial c]ourt was 

well within its discretion to run all of [Miles’s] sentences 

consecutively. On three separate occasions, [Miles] dragged each 

of his three victims off of the street and forced them to engage in 

various sexual acts .... The consecutive sentences reflected the 

truly egregious nature of [Miles’s] conduct, and resulted in an 

aggregate sentence commensurate with such conduct.

Because the [trial c]ourt’s sentence was entirely reasonable 

and could not have been successfully challenged on appeal, 

[Miles] suffered no prejudice from trial counsel’s failure to 

preserve the issue for appellate review. ...

PCRA Court Opinion, 8/8/18, at 12-15. We agree with the PCRA court’s

determination that Miles has not established that he was prejudiced by his 

counsel’s failure to preserve his sentencing claim in a motion to reconsider. 
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In his fifth claim, Miles asserts that his appellate counsel was ineffective 

for failing to challenge the denial of two pre-trial Motions (specifically, his 

Motion for Severance and Motion to Dismiss pursuant to Pa.R.Crim.P. 600), 

which we will address separately. 

Regarding his Motion for Severance, Miles argues that the three cases 

were substantially unrelated, as “[t]here was no relationship between any of 

the women and there was no similarity in the way the offenses were 

committed.” Brief for Appellant at 35. According to Miles, the consolidation 

of the three cases had a prejudicial effect on the jury. Id. at 37.

Initially, as the PCRA court correctly stated in its Opinion, the trial court 

never denied Miles’s Motion for Severance. See PCRA Court Opinion, 8/8/18, 

at 15 n.2.4 To the extent that Miles instead intended to challenge the Order 

granting the Commonwealth’s Motion to Consolidate the cases for trial, the 

PCRA court stated the following:

[O]ffenses charged in separate informations may be tried

together, even where they did not arise out of the same act or 

transaction, if evidence of each offense would be admissible in a 

separate trial of the other and is capable of separation by the jury 

as to avoid confusion. The decision to join offenses for trial is 

within the trial court’s discretion and will not be reversed on 

appeal absent a manifest abuse of that discretion or a showing of 

prejudice and clear injustice to the defendant.

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4 The PCRA court indicated that the “[M]otion appears to have been 

withdrawn[.]” PCRA Court Opinion, 8/8/18, at 15 n.2. However, it is not clear 

from the certified record whether the Motion for Severance was formally 

withdrawn.
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The law regarding the admissibility of other crimes in a 

criminal trial is well-established. While such evidence is not 

admissible to prove bad character or criminal propensity, it may 

be admitted for other purposes where the probative value of the 

evidence outweighs the potential for prejudice. One such purpose 

is to establish that the crimes were part of a common plan or 

scheme. Factors to be considered to establish similarity are the 

elapsed time between the crimes, the geographical proximity of 

the crime scenes, and the manner in which the crimes were 

committed.

Here, the record establishes that the three cases were 

properly joined. While each case concerned criminal acts that 

occurred on different days and involved unrelated victims, they 

were inextricably intertwined. All three cases occurred within 

blocks of the others, with the last two occurring at the very same 

location[:] a Salvation Army parking lot. Moreover, all three cases 

shared additional characteristics: each victim was a black female 

who was walking alone in the dark; none of the victims knew 

[Miles]; [Miles] grabbed each victim from behind and put her in a 

chokehold; [Miles] took each victim to a secluded location before 

forcing her to engage in sexual acts; [Miles] did not wear a 

condom in any of the assaults; and [Miles] ejaculated after each 

assault, leaving his DNA. Accordingly, each case would have been 

admissible in the trial of the others to show [Miles’s] common plan 

or scheme.

Finally, each case was easily separable from the others by 

both date and victims, preventing any possible confusion by the 

jury. Therefore, the [trial c]ourt did not err in consolidating these 

matters for trial. Consequently, appellate counsel could not have 

been ineffective for failing to raise a meritless severance claim on 

appeal.

PCRA Court Opinion, 8/8/18, at 15-16 (citations and quotation marks 

omitted). Because we agree that Miles’s severance claim would merit no relief 

on appeal, Miles has not established that his direct appeal counsel was 

ineffective on this basis. See Commonwealth v. Spotz, 896 A.2d 1191, 
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1211 (Pa. 2006) (stating that “counsel will not be deemed ineffective for failing 

to raise a meritless claim”); see also Franklin, supra.

Regarding his Motion to Dismiss pursuant to Rule 600, Miles claims that 

his appellate counsel was ineffective for failing to challenge the denial of his 

Motion. Brief for Appellant at 38. Miles points out that while the offenses took 

place in 2005 and 2006, he was not arrested until January 2009. Id. at 39. 

Miles asserts that he was prejudiced because the delay rendered him unable 

to produce critical witnesses on his behalf. Id. 

To prevail on a claim of violation of due process based on 

pre-arrest delay, a defendant must first establish that the delay 

caused him actual prejudice. ... [I]n order for a defendant to show 

actual prejudice, he or she must show that he or she was 

meaningfully impaired in his or her ability to defend against the 

state’s charges to such an extent that the disposition of the 

criminal proceedings was likely affected. This kind of prejudice is 

commonly demonstrated by the loss of documentary evidence or 

the unavailability of a key witness. It is not sufficient for a 

defendant to make speculative or conclusory claims of possible 

prejudice as a result of the passage of time. When a defendant 

claims prejudice through the absence of witnesses, he or she must 

show in what specific manner missing witnesses would have aided 

the defense. Furthermore, it is the defendant’s burden to show 

that the lost testimony or information is not available through 

other means.

Commonwealth v. Tielsch, 934 A.2d 81, 91-92 (Pa. Super. 2007) (citations 

and paragraph break omitted).

Here, Miles failed to identify any specific witness that he was unable to 

produce at trial as a result of the pre-arrest delay. Miles likewise failed to 

explain “the substance of [the alleged witnesses’] testimony in order to show 

how they would have aided in his defense.” PCRA Court Opinion, 8/8/18, at 
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17. Therefore, Miles’s underlying claim lacks merit. See Tielsch, supra. 

Accordingly, Miles has not establish that his appellate counsel was ineffective 

in this regard. See Spotz, supra; Franklin, supra.

Because the record reflects that Miles’s arguments lack arguable merit, 

and Miles failed to established that he suffered actual prejudice, we conclude 

that the PCRA court did not err in dismissing Miles’s Petition without a hearing. 

See Baumhammers, supra. We therefore affirm the PCRA court’s Order 

dismissing Miles’s Petition.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 4/16/19