J-S93029-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

TYRIQUE I. JACKSON

Appellant No. 3708 EDA 2015

Appeal from the PCRA Order dated November 19, 2015

In the Court of Common Pleas of Philadelphia County

Criminal Division at No(s): CP-51-CR-0009821-2007

BEFORE: DUBOW, J., SOLANO, J., and PLATT, J.*

MEMORANDUM BY SOLANO, J.: FILED MARCH 28, 2017

Appellant, Tyrique I. Jackson, appeals pro se from the order dismissing 

his petition filed pursuant to the Post-Conviction Relief Act (PCRA), 42 

Pa.C.S. §§ 9541–9546. Upon review, we affirm on the basis of the PCRA 

court’s opinion.

On November 5, 2008, a jury convicted Appellant of third-degree 

murder. We previously summarized the facts underlying Appellant’s 

conviction as follows:

On April 22, 2007, Ryan Haywood, Cedric Dowtin, David Alston, 

and Sterling Almond all met on East Bringhurst Street in 

Philadelphia so that Mr. Haywood could videotape Mr. Dowtin 

perform a rap. Mr. Dowtin’s rap was about a dispute he was 

having with Appellant. While Mr. Dowtin was rapping about 

Appellant, a small crowd formed to watch his performance. 

____________________________________________

* Retired Senior Judge assigned to the Superior Court.
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Appellant then arrived on the scene with a large group of people. 

Appellant called out to Mr. Dowtin, asking him if he was talking 

about Appellant in his rap. Then, Appellant pulled out a gun and 

fired a series of shots in the direction of Mr. Dowtin and the 

crowd that was watching him perform. Mr. Alston and another 

man, who was part of the crowd, Terrell Martin, were both shot 

but were able to run to safety. Mr. Almond, however, was shot 

through his left arm, with the bullet traveling through his chest. 

Mr. Almond was transported to the hospital where he was 

pronounced dead.

Commonwealth v. Jackson, 4 A.3d 201 (Pa. Super. 2010) (unpublished 

memorandum at 1-2).

 On December 19, 2008, the trial court sentenced Appellant to 20 –

40 years’ incarceration. Appellant filed a direct appeal and this Court 

affirmed his judgment of sentence. See id. Appellant then petitioned the 

Supreme Court for allowance of appeal. The Supreme Court denied this 

request on November 27, 2012. Appellant did not seek review with the 

United States Supreme Court, such that his conviction became final on 

February 25, 2013. U.S. S.Ct. Rule 13; 42 Pa.C.S. § 9545(b)(3).

On April 2, 2013, Appellant filed the instant PCRA petition pro se. On 

December 19, 2013, the PCRA court appointed counsel, Attorney O’Hanlon, 

to represent Appellant. Attorney O’Hanlon filed a “no merit” letter pursuant 

to Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988), and sought 

to withdraw his appearance on February 20, 2014. On May 27, 2014, the 

PCRA court issued notice of its intent to dismiss the petition pursuant to 

Pennsylvania Rule of Criminal Procedure 907. On May 29, 2014, Appellant 

hired counsel, Attorney Cooley, who substituted his appearance on 
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Appellant’s behalf and requested additional time to review Appellant’s case. 

The PCRA court granted Attorney Cooley’s request. However, Attorney 

Cooley ultimately petitioned to withdraw his appearance, which the PCRA 

court granted on August 18, 2015. The PCRA court once again appointed 

Attorney O’Hanlon to represent Appellant. 

On October 13, 2015, the PCRA court entered an order noting that 

counsel had filed a “Finley letter” and advising of its Rule 907 Notice to 

dismiss the PCRA petition without a hearing. Appellant filed a pro se

response on October 28, 2015. On November 19, 2015, “after again 

reviewing the no-merit letter filed by Mr. O’Hanlon and all filings,” the PCRA 

court issued the order dismissing Appellant’s PCRA petition and granting 

Attorney O’Hanlon’s request to withdraw his appearance. Appellant’s pro se 

appeal followed.

Appellant raises ten issues for our review:

[1.] Whether the PCRA court abused its discretion in 

dismissing Petitioner’s petition for post-conviction relief 

without first affording [P]etition[er] the opportunity to 

correct and amend his petition and proceed pro se?

[2.] Whether the lower court erred in dismissing 

Petitioner’s claim that trial counsel was ineffective for 

failing to investigate, interview, and present eyewitness 

Rodney Stevens at trial?

[3.] Whether the lower court erred in dismissing 

Petitioner’s claim that trial counsel’s failure to object to the 

trial court’s jury instruction on third degree murder and 

request a supplemental “beyond a reasonable doubt” 

charge was ineffective?
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[4.] Whether the lower court erred in dismissing 

Petitioner’s claim that trial counsel’s failure to present the 

testimony of character witnesses who were available to 

establish Petitioner’s reputation for peacefulness and nonviolence deprived Petitioner of effective assistance of 

counsel?

[5.] Whether the lower court erred in dismissing 

Petitioner’s claim that trial counsel was ineffective for 

failing to object to the prosecutor’s improper remarks 

during closing arguments and move for a mistrial, or in the 

alternative request a cautionary instruction?

[6.] Whether the lower court erred in dismissing 

Petitioner’s claim that appellate counsel was ineffective for 

failing to argue (on direct appeal) how the trial court’s 

error prejudiced the Petitioner?

[7.] Whether the lower court erred in dismissing 

Petitioner’s claim that appellate counsel was ineffective for 

failing to challenge the legal sufficiency of the verdict?

[8.] Whether the lower court erred in dismissing 

Petitioner’s claim that trial counsel was ineffective for 

failing to request a charge on Petitioner’s theory of 

defense?

[9.] Whether the lower court erred in dismissing 

Petitioner’s claim that trial counsel’s failure to request an 

instruction on the limited purpose for which the jury could 

consider evidence that Petitioner was a violent and 

dangerous man?

[10.] Whether the lower court erred in dismissing 

Petitioner’s claim that trial counsel’s failure to object to the 

trial court requiring substantial doubt in order for an 

acquittal was ineffective?

Appellant’s Brief at 4.

Preliminarily, we recognize there is no absolute right to an evidentiary 

hearing on a PCRA petition because it is within the PCRA court’s discretion to 

refuse to hold a hearing if the petitioner’s allegations are either “patently 
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frivolous” or have no evidentiary or record support. See Commonwealth 

v. Khalifah, 852 A.2d 1238, 1239–40 (Pa. Super. 2004). We review a 

denial of a post-conviction petition to determine whether the record supports 

the PCRA court’s findings and whether its order is otherwise free of legal 

error. See Commonwealth v. Faulk, 21 A.3d 1196, 1199 (Pa. Super. 

2011). 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).

To be eligible for relief pursuant to the PCRA, an appellant must 

establish, among other things, 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). He must also establish that the issues raised in the PCRA 

petition have not been previously litigated or waived. See id. at § 

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 post-conviction proceeding.” Id. at § 9544(b).

Here, Appellant, in nine of his ten issues, asserts that he received 

ineffective assistance of counsel. Counsel is presumed effective, and 

Appellant bears the burden to prove otherwise. The test for ineffective 

assistance of counsel is the same under both the Federal and Pennsylvania 

Constitutions. See Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 

2052, 80 L.Ed.2d 674 (1984); Commonwealth v. Jones, 815 A.2d 598, 

611 (Pa. 2002). Appellant must demonstrate: (1) his underlying claim is of 
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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 proceedings would have been different. See 

Commonwealth v. Pierce, 786 A.2d 203, 213 (Pa. 2001), abrogated on 

other grounds by Commonwealth v. Grant, 813 A.2d 726 (Pa. 2002). A 

failure to satisfy any prong of the test for ineffectiveness will require 

rejection of the claim. See Jones, supra at 611.

Upon review of the record, we conclude that the Honorable Jeffrey P. 

Minehart, sitting as the PCRA court, has authored an opinion which 

accurately and adequately addresses each of the issues raised by Appellant 

on appeal. Judge Minehart’s April 12, 2016 opinion cites the record and 

expands upon the aforementioned prevailing legal authority in reviewing 

Appellant’s claims and explaining why they lack merit. Accordingly, we 

adopt the PCRA court’s opinion as our own. The parties shall attach a copy 

of the PCRA court’s opinion in any further proceedings.

Order affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 3/28/2017