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NON - PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENN SYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v. MARKEZ PRIEST Appellant No. 905 WDA 2016

Appeal from the PCRA Order June 8 , 2016 In the Court of Common Pleas of Beaver County Criminal Division at No(s): CP
- 04
- CR
- 0001503
- 2009
BEFORE: LAZARUS, J., DUBOW, J., and STRASSBURGER, J. * MEMORANDUM BY LAZARUS, J.: FILED JUNE 8, 2017 Markez Priest appeals, pro se , from the order entered in the Court of Common Pleas of Beaver County, dismissing his petition filed pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A . §§ 9541
- 9546. After careful review, we affirm the PCRA court’s order on the basis of the opinion authored by the Honorable Richard Mancini
. On July 9, 2009, Priest shot and killed Darius Odom while Odom was walking with the mother of Priest’s child. O n April 30, 2010, a jury convicted him of first
- degree murder and a firearms offense. On June 29, 2010, Priest was sentenced to life imprisonment. His judgment of sentence was affirmed

____________________________________________

* Retired Senior Judge assigned to the Superior Court.J
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by this Court. See Commonwealth v. Priest , 18 A.3d 1235 (Pa. Super. 2011). Priest filed a PCRA petition on July 5, 2011, which resulted in the court reinstating Priest’s appellate rights, specifically to challenge the weight of the evidence. This Court affirmed, see Commonwealth v. Priest , 82 A.3d 466 (Pa. Super. 2013) (Table), and our Supreme Court denied allowance of appeal. See Commonwealth v. Priest , 80 A.3d 776 (Pa. 2013) (Table). On April 23, 2014, Priest filed a pro se PCRA petition, 1 followed on May 29, 2014, by an amended pro se petition. These petitions r aised the following issues: (1) the legality of Priest’s sentence in light of Miller v. Alabama , 312 S. Ct. 2455 (2012); (2) ineffectiveness of trial counsel for failing to present DNA evidence found on the victim; (3) ineffectiveness of trial counsel for failing to present the victim’s blood toxicology report; (4) ineffectiveness of trial counsel for failing to present the ballistics report; (5) trial court error in admitting video of victim receiving treatment at the hospital; and (6) prosecutorial misco nduct during closing argument. Counsel was appointed to represent Priest and subsequently filed a “no merit” letter pursuant to Turner / Finley
. 2 On November 12, 2014, the PCRA

____________________________________________ 1 Because Priest’s first PCRA petiti on resulted in the reinstatement of his appellate rights, his April 2014 petition was properly treated as a timely first PCRA petition.
2 See Commonwealth v. Turner , 544 A.2d 927 (Pa. 1988); Commonwealth v. Finley , 550 A.2d 213 (Pa. Super. 1988) (en banc).J
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court issued a notice of intent to dismiss pursuant to Pa.R.Crim.P. 907. Priest filed a response to the court’s Rule 907 notice, as well as a “ Nunc Pro Tunc Motion for Post Conviction Relief.” These filings raised three additional grounds for relief: (1) trial counsel ineffectiveness for failure to raise a voluntary manslaughter de fense; (2) illegality of sentence pursuant to Alleyne v. United States , 133 S. Ct. 2151 (2013), and Commonwealth v. Valentine , 101 A.3d 801 (Pa. Super. 2014); and (3) trial counsel ineffectiveness for failing to subpoena Priest’s telephone records to show his location at the time of the offense. On February 13, 2015, the PCRA court directed appointed counsel to review the third issue, relating to telephone records. On January 11, 2016, counsel filed a second “no merit” letter concluding that claim was mer itless. Priest filed a response, in which he raised one new ground for relief: the discovery of a new alibi witness and/or ineffective assistance of trial counsel in failing to call the witness. On April 8, 2016, the PCRA court issued another Rule 907 n otice and, on June 8, 2016, the court dismissed Priest’s petition and granted counsel leave to withdraw. This timely appeal follows, in which Priest raises the following claims for our review: 3

____________________________________________ 3 We have reworded Priest’s claims for the sake of clarity and brevity.J
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1. Whether the PCRA court erred in denying relief where tri al counsel was ineffective for failing to present exculpatory DNA evidence. 2. Whether the PCRA court erred in denying relief where trial counsel was ineffective for failing to obtain and present Priest’s cell phone records. 3. Whether the PCRA court err ed in denying relief where trial counsel was ineffective for failing to present the victim’s toxicology report. 4. Whether the PCRA court erred in failing to find that Priest’s sentence is illegal pursuant to Miller
. See Brief of Appellant, at 4
- 5. We b egin by noting that our standard of review of the denial of a PCRA petition is limited to examining whether the evidence of record supports the court’s determination and whether its decision is free of legal error. Commonwealth v. Conway , 14 A.3d 101 (Pa. Super. 2011). This Court grants great deference to the findings of the PCRA court if the record contains any support for those findings. Commonwealth v. Boyd , 923 A.2d 513 (Pa. Super. 2007). We give no such deference, however, to the court’s legal conc lusions. Commonwealth v. Ford , 44 A.3d 1190, 1194 (Pa. Super. 2012). In its opinion dated June 8, 2016, the PCRA court concluded that all of Priest’s appellate issues were without merit. Specifically, the court found that: (1) trial counsel was not in effective for failing to introduce DNA found under the victim’s fingernails that did not match Priest’s DNA profile or blood type, as the jury’s determination would ultimately be based upon theJ
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credibility of the eyewitness identifications and, in any even t, the mere presence of DNA from another individual under the victim’s fingernails does not serve to exculpate Priest, see Trial Court Opinion, 6/8/16, at 7
- 9; (2) trial counsel was not ineffective for failing to subpoena Priest’s cellphone records because PCRA counsel attempted to obtain them and they were not available and the cellular provider advised that, in any event, such records would not pinpoint the location of the user, see id. at 15
- 16; (3) trial counsel was not ineffective for failing to presen t the victim’s toxicology reports to discredit his identification of Priest as his assailant because the same records also noted that the victim was “speaking in clear, full sentences” and “ha[d] full mental status,” which could ultimately have had the eff ect of bolstering the victim’s identification in the eyes of the jury, see id. at 9
- 10; and (4) Miller is not applicable to the defendant, as he was 20 years old at the time he committed his offense. 4 W e have reviewed the record and the briefs submitted by the parties in this matter and conclude that Judge Mancini thoroughly and correctly

____________________________________________ 4 Priest argues that Miller prohibits the imposition of a mandatory life sentence in his case because “[w]hile clearly no longer a juvenile, [Priest], at age 20 years old, wa s barely a legal adult” and his brain was still developing. Brief of Appellant, at 18. However, this Court has previously declined to extend PCRA relief under Miller to defendants 18 years of age and older based on the same argument. See Commonwealth v. Cintora , 69 A.3d 759, 764 (Pa. Super. 2013) (rejecting “immature brain” argument and holding petitioners older than 18 at time of murder not within ambit of Miller ).J
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disposes of the issues Priest raises on appeal. Accordingly, we affirm on the basis of his opinion and instruct the parties to attach a copy in the event of further proceedings in this matter. Order affirmed. Motion to Strike Appellee’s Brief denied.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 6/8/20171

At trial (and at previous pre-trial proceedings) Ms. Jackson did not identify the shooter. However, Beaver County Detective Timmie Patrick testified that, during a [police] interview on July 9, 2009, Ms. Jackson did identify [ Appellant] as the shooter. [Specifically) he testified as follows on direct examination:] In the early hours 

# of July 9, 2009, Ms. Jackson was approached by [Darius] Odom on Todd Street; that night they had planned to meet · Kevonna Thomas, with whom Mr. Odom had a relationship, and Jamie Turner. Ms. Jackson and Mr. Odom began walking up Todd Street towards Ms. Jackson's home in order to charge Mr. Odom's cell phone. While walking to Ms. Jackson's home, they were approached by an individual walking towards them. Mr. Odom held his hands up and said "whoa, whoa, whoa;" Ms. Jackson ran away. Ms. Jackson heard a gunshot and looked back; upon doing so, she observed the gunman and Mr. Odom fighting. Ms. Jackson also heard a second gunshot. As of July of 2009, Chalese Jackson maintained an intermittent relationship with [Appellant] and was the mother of his child. On July 8, 2009, Ms. Jackson had informed [Appellant] via telephone that she was ending this relationship because [she] "didn't want to be with him." That night, [Appellant] called Ms. Jackson because he wished to-continue the relationship. · The Superior Court of Pennsylvania has sununarized the relevant facts as follows: JUNE 

### <{;' , 2016 MANCINI,J. 

### MEMORANDUM OPINION and ORDER MARKEZ PRIEST No.: 

### 1503 of2009

vs. COMMONWEALTH OF PENNSYLVANIA

IN THE COURT OF COMMON PLEAS OF BEAVERGOUNTY PENNSYLVANIA CRIMINAL DIVISION \ \ Circulated 05/23/2017 10:08 AM2 1 18 Pa.C.S.A. §2501(a). 2 18 Pa.C.S.A. §6106(a)(l ). 

### returned a verdict finding the Petitioner guilty of Murder of the First Degree and the Petitioner's trial by jury was held the week of April 26, 2010. On April 30, 20 IO the jury two counts: Criminal Homicide' and Firearms not to be Carried without a License.' The On September 21, 2009 the Petitione r was charged by Criminal Information with Procedural History Commonwealth v. Priest, 18 A.3d 1235, 1237-38 (Pa.Super. 2011).

Numerous witnesses testified that they were aware of no other individual in Aliquippa named "Markez." [Mr. Odom died at approximately 10:09 A.M. on July 9, 2009, as a result.of his gunshot wounds.] Following the shooting, Mr. Odom was flown to UPMC Presbyterian, as that facility possesses the nearest Level One Trauma center. [Mr. Odom suffered gunshot wounds to his right arm and the back of his neck.] Four employees ofUPMC involved with the treatment of 

### Mr. Odom on July 9, 2009 (Jaclyn Kuzminsky, a certified respiratory therapist, Dr. Brian Bane, an anesthesiologist, Nathan Sullivan, a registered nurse, and Dr. Raquel Forsythe, a trauma surgeon) testified that 

### Mr. Odom said "Markez shot me" immediately prior to being intubated. Furthermore, the trauma bays at UPMC Presbyterian were videotaped for educational purposes; the videotape portrayed Mr. Odom saying the name "Markez" three times, then saying "shot me." Also, in a voluntary statement written during the same interview, Ms. Jackson wrote: "Then somebody or Markez was walki ng up to us, shot one time." [At-that point when] I asked her during the time [of the interview]

. who is the shooter, you had to see him, do you know the name of the shooter? At that point, Miss Jackson wrote the name Markez Priest, which is indicated down below. She wrote the name, tapped twice real hard, stood up, and started crying and sobbing and began to walk out of the interview room, which was about maybe five to seven yards. She was visibly and physically upset and crying.3 3 As to Count Two, Firearms not to be Carried without a License, the Petitioner was sentenced to incarceration for two to four years, to be served concurrent to the life sentence for homicide. 4 At the hearing upon this Petition, the Petitioner testified that he had raised additional potential issues with Attorney Valsamidis, who had explained to the Petitioner via letter why he (Attorney Valsamidis) did not believe such issues were meritorious. See Transcript of PCRA Hearing of Ju n e 8, 2012 at 49-51. 

### Commonwealth v. Priest, 80 A.3d 776, 342 WAL 2013. Pennsylvania denied his Petition for Allowance of Appeal on November 20, 2013. See A.3d 466, 1660 WDA 2012 (unpublished memorandum opinion). The Supreme Court of 2012. The Superior Court affirmed on June 20, 2013. See Commonwealth v. Priest, 82 12, 2012, and the Petitioner filed a timely appeal to the Superior Court on October 19, post-sentence motion on September 14, 2012. The Court denied said motion on October the Petitioner to file a challenge to the weight of the evidence. The Petitioner filed his the Petitioner's right to file post-sentence motions nunc pro tune, 

### specifically permitting upon said Petition was held on June 6, 2012. On September 5, 2012 the Court reinstated failing to file a post-sentence motion challenging the weight of the evidence. 4 

### A hearing Petition on January 24, 2012. This Petition alleged that Trial Counsel was ineffective for Valsamidis was appointed to represent the Petitioner and filed an Amended PCRA The Petitioner filed his first pro se 

### PCRA on July 5, 

### 2011. Attorney Steven Priest, 18 A.3d 1235 (Pa.Super. 2011). and the judgment of sentence was affirmed on April 21, 2011. See Commonwealth v. life. 3 

### The Petitioner filed a timely notice of appeal to the Superior Court on July 28, 2010 aforementioned firearms offense. On June 29 , 2010 he was sentenced to incarceration for4 The Petitioner filed his 

### secondpro · se PCRApetition on April 23, 2014 and an amended 

### prose petition on May 29, 2014. Attorney Sherri Hurst was appointed to represent the Petitioner. The Petitioner's initial 

### prose petitions raised six issues, which may be paraphrased as follows: ( 1) the Petitioner challenged the legality of his sentence, citing Miller v. Alabama , 132 S.Ct. 2455 (2012); (2) the Petitioner alleged that trial counsel was ineffective in failing to present DNA and other trace evidence found on the victim; (3) the Petitioner alleged that trial counsel was ineffective in failing to present the victim ' s blood toxicology report; (4) the Petitioner alleged that trial counsel was ineffective in failing to present the ballistics 

### report; (5) the Petitioner alleged that the trial court erred in admitting a video of the victim receiving treatment at the hospital; and (6) the Petitioner alleged that the prosecution committed misconduct during closing argument. On November 11, 2014 appointed Counsel filed a "no merit " letter which concluded that all six issues raised were without merit. Appointed counsel further averred that her review of the case did not disclose additional meritorious claims. On November 12, 2014 the Court issued a Preliminary Order providing the Petitioner notice of intent to dismiss his Petition. On January 8, 2015 the Petitioner filed a written response to the Court's notice of intent to dismiss and a separate 

### "Nunc Pro Tune Motion for Post Conviction Relief", These filings raised issues duplicative of his first petitions and three new grounds for relief: (1) the Petitioner alleged that trial counsel was ineffective in failing to raise a5 The Co u rt n o t e d in th i s Order th at th e fi r s t and se c o nd s uppl e m e nt al is s u e s rais e d by the P e titi o n e r wer e p ate n tly

fri v o l o u s an d n ee d n o t b e rev i e w ed by C oun se l. T h e C ourt s hall d i s c u ss thes e i ss u e s b e l o w .
5 

### Counse l peti ti onin g to w ithdraw from PCRA repre s entation must proceed

... und er Co mmonw e alth v. T u r n e r, 

### 518 Pa

. 4 9 1 , 544 A.2d 9 27 (1988) , and Co mmonw e a l th v . Finl ey, 

### 3 79 Pa.Sup e r. 390 , 550 A

. 2d 2 13 (1 9 88)

. Similar to th e Ande rs 

### s i tu ation , Turn e r/ Finl ey 

### coun s el mu s t re vi ew the ca se zealously. Turn e r/

Fi n l ey 

### counse l mu st then submit a " no - m e rit" l e tter to th e tri a l court
. . . d e t a il ing the natur e a nd e xtent of counse l ' s diligen t re v i ew o f the case, listing th e i s sues w hi c h th e peti ti oner wants to h a ve re v i e wed, expl a ining why a n d how thos e is s u e s l ack merit , a nd r equestin g permission t o w i thdraw. an d the Petitioner filed a wri tt en r e spon se on April 2 6, 2016

. PCRA Petition without a he aring fo r th e r e a so n s set fo rth in Coun s e l 's " no merit " lett e r s 907(1) th e Court provid e d the P e ti ti oner notic e of th e Court ' s int e ntion to dismiss hi s failing to di s cover and ca ll this witness

. O n April 8, 2016, pursu a nt to P a. R. C rim

. Pro

. the discov e ry of a new alib i w i tness and/or ineffective as s istanc e of tri a l counse l in in which he raise d claims duplicati v e of those stat ed ab ov e a n d o ne n e w ground for re l ief : wa s also withou t merit. T h e Pe titione r filed a response to this lett e r on Fe b ruary 1 2, 201 6 , January 11, 2016 Counse l fil e d a s e cond "no merit" l etter which conclude d that this cl a im supp l ement a l i s sue raised by the P etition e r, r e gard i ng the c e ll ular telephone record s.' 

### On On Fe b ruary 24 , 2015 , the Court Ord e red that appointed C ounsel revi ew th e th ird l ocation at th e time of the offense. ineffective inf

a iling to s u bpoena cellu l ar te l ephone r e cords to show th e Petitioner's 101 A

. 3d 80 1 (Pa

. S u p e r . 2014); and (3) the Petiti oner all ege d th at trial coun s el wa s citing Alleyne v . Unit e d States, 133 S.Ct. 2151 (2013) and Conuno n wealth v . Valentin e, voluntary manslaughter d efense ; (2) the Petitioner a lleged that his sen te nce was ill e gal ,6 Se e P ro S e P CRA P etiti o n an d S uppl em ent a l Mem o rand u m of La w , fil e d April 2 3, 2 0 14.

Gr a ham 

### [G raham v. F lorid a, 130 S.Ct. 2011(2010)], Rop e r 

### [Rop e r v . S i mmon s, 125 S

. C t. 11 8 3 (2005)) , and our i n dividuali ze d s e ntencing d e cision s m ake cl e ar th at a judge or jury must have th e op po rtunity to co n sid er mitig ating c irc um s tances before impos i ng the harshes t possible p en alty for juveniles. By requiring th at all children 

### convict e d of homicid e r ecei v e lifetime in c arc e ration with o ut possibility of p arole , regar dles s of th e ir age and a ge- re lat e d ch aract e ristics and the n atur e of th e ir c rimes , the m a ndat ory s e ntencing s chem e s b e fore u s v iolate this prin ci ple of Al ab a m a the Unit e d St ate s Supre m e Court held a s follows:

6 

### sup p ort of th i s ar gum e nt h e c i t e s Mill er v . Al aba ma a nd r el ated c a s es. In Mill er v . parol e viol at es Ei g hth a n d Fourte e nth Am e ndment s of th e United States C onstituti on ; in The Petitioner argues that his mandatory sentenc e of in c ar ce ration for life 

### w ithout (]) L eg ality of s e nten ce, ci t i n g Mill e r v. Alabam a , 1 32 S

. Ct
. 2455 ( 2 012) 6 

### Opi ni on relie f. Th e Court h as par aphra se d the Petition e r's ar gu m ents fo r b r evity and clarity. th e Co u rt 

### fi nd s that the Pe titioner 's ten claims ar e without m erit a n d do not entitle him to F i nley a n d h a s con d uct e d an i ndep e nde n t r evi e w of the ca se . For th e r e a s ons that fo llow, Th e C o u rt 

### finds th at Co uns e l ha s c omplied with the techni ca l d e mand s of Tmn e r I quot ation s omitt ed)

. Commonwealth v. Wre c ks, 931 A

. 2d 717 , 721 (P a . Sup e r . 2007) ( i ntern a l citatio ns and

Counsel must also s e nd to the p e titioner

. H) a copy of th e "n o - . merit " l e tt e r

/ brie f ; (2) a copy of counsel's petition to withdraw; a nd (3) a st atem e nt advisin g petition e r of the ri g ht to proc e ed 

### pro se o r by n e w c o unsel.

. .. [W]he re counsel s ubm i ts a petiti o n and no-merit lett e r that do satisfy the techni ca l demand s of T urn er/ Finl ey, 

### the c o urt
. . . 

### mus t then co n duc t i ts own review of th e me rits of the case. If 

### th e court agr e es with coun s el that the cl a im s ar e without m e rit, the court will p ermi t c ouns e l to wi thdra w and deny relief. / \

. ~ / I7 7 See Pro Se Amended PCRA Petition, filed May 29, 2014 at 

### ,r "I". clearly defined. In order to be eligible for relief, a petitioner must plead and prove by a The standard of review for allegations of ineffective assistance of counsel is identification, and the Petitioner's alibi defense. be based upon the c r edibility of the victim's identification, Chalese Jackson's prior DNA match was a r easonable trial strategy, as the jury's determination would ultimately PCRA Counsel concluded that Trial Counsel's failure to elaborate on the lack of a victim's assailant was someone other than the Petitioner. ineffective in failing to present this evidence, as such evidence may show that the Petitioner ' s DNA profile or blood type. The Petitioner argues that Trial Counsel was a hair and other trace evidence found on the victim's clothing that did not match the The Petitioner avers that there was DNA found under the victim's fingernails and 

### (2) Ineffective assistance of Trial Counsel in/ailing to raise DNA evidence 7 unconstitutional. binding authority to support the Petitioner's claim that his sentence is otherwise illegal or the time of the offense, the case of Miller v. Alabama, affords him no relief. There is no subject offense took place on July 9, 2009. As the Petitioner was twenty (20) years old at The record indicates that the Petitioner was born on December 30, 1988 and the 132 S.Ct. 2455, 2467 (emphasis added). · proportionality, and so the Eighth Amendment's ban on cruel and unusual · punishment.8

trial counsel's act or omission adversely affected the outcome of the proceedings, the greater than the course actually pursued. Id. If the defendant fails to demonstrate that concluded that an alternative not chosen offered a potential for success substantially finding that a chosen strategy lacked a reasonable basis is not warranted unless it can be comparing, by hindsight, the trial strategy employed with alternatives not pursued. Id. A 237 (1998). Nor can a claim of ineffective assistance generally succeed through designed to effectuate his client's interest. Commonwealth v. Howard, 719 A.2d 233, constitutionally effective if he chose a particular course that had some reasonable basis where matters of strategy and tactics. are concerned, counsel's assistance is deemed entire claim to fail. Commonwealth v. Bridges, 886 A.2d 1127, 1131 (2005). Generally, (Pa.Super. 2006). The defendant's failure to satisfy any prong of this test will cause the proceedings would have been different. Commonwealth v. Bath, 907 A.2d 619, 622 omissions of counsel, there is a reasonable probability that the outcome of the reasonable strategic basis for his action or inaction; and (3) that, but for the errors and elements: (1) that the underlying claim has arguable merit; (2) that counsel had no (2007). In order to overcome this presumption, the defendant must establish three Counsel is presumed to be effective. Commonwealth v. Rios, 920 A.2d 790, 799 42 Pa.C.S. §9543(a). (a)(2)(ii)- Ineffective assistance of counsel which, in the circumstances of the particular case so undermine the 

### truth determining process that no reliable adjudication of guilt or innocence could have taken place. following: preponderance of the evidence that the conviction and-sentence resulted from the9 8 The cited cases specifically address requests for post-conviction DNA testing under 42 Pa.C.S. §9543.1, which is not at issue in the present case. 9 See Pro Se Amended PCRA Petition, filed May 29 , 2014 at~ ''II". the victim's identification. failing to present this evidence, as such evidence would have challenged the reliability of alcohol content was 0.126%. The Petitioner argues that Trial Counsel was ineffective in The Petitioner avers that a blood toxicology indicates that the victim's blood 

### (3) Ineffective assistance of Trial Counsel in failing to raise the victim's blood

. l 9 

### toxico ogy report would not exculpate appellant by pointing to a different assailant."). 8 fingernails, in the absence of any evidence as to how and when that DNA was deposited, (Pa.Super.2005) ("Merely detecting DNA from another individual on the victim's of evidence is not evidence of absence."); Commonwealth v. Smith, 889 A.2d 582, 585 v. Heilman, 867 A.2d 542, 547 (Pa.Super.2005) ("In DNA as in other areas, an absence upon these determinations and such evidence is 

### ~10t exculpatory. See e.g. Commonwealth credibility determinations. The evidence cited by the Petitioner would have no impact stated by PCRA Counsel, the determination for the jury would ultimately be based upon to present the DNA and trace evidence adversely affected the outcome of his trial. As The Court finds that the Petitioner has failed to prove that Trial Counsel's failure AJd 779, 789 (Pa. 2014). deemed ineffective for failing to raise a meritless claim. Commonwealth v. Rivera, 108 the first and second prongs have been met. Rios, 920 A.2d at 800. Counsel cannot be claim maybe dismissed on that basis alone and the court need not first determine whether10 10 See Pro Se Am e nded PCRA Petition, file d May 29, 2014 at ~ "III". regarding such evidence. cross-examine Trooper Robert Hagins, an expert forensic firearm and toolmark examiner, Petitioner argues that Trial Counsel was ineffective in failing to present this evidence and than one assailant was involved in the crime for which Petitioner was convicted ... " The from the victim [were] not fired from the same unknown firearm, which indicates more The Petitioner avers that the ballistics report shows that "the bullets recovered Ineffective assistance of Trial Counsel in/ailing to raise the inconclusive ballistics Report 10 (4) ability to evaluate the victim's credibility. receiving treatment and identifying the Petitioner as his assailant and therefore had the identification of his assailant. Further, the jury was able to view a video of the victim As stated by PCRA Counsel, the subject report, as a whole, does not impeach the victim's to raise the victim's blood toxicology report adversely affected the outcome of his trial. The Court finds that the Petitioner has failed to prove that Trial Counsel's failure reasonable decision to forego this argument. may have been bolstered by the additional comments and therefore Trial Counsel made a attack the victim's identification with his blood alcohol content, the same identification sentences ... '' and "[the patient] has full mental status". Had Trial Counsel attempted to alcohol content was O .126% further stated that "the patient is speaking 

### in clear, full toxicology was a reasonable trial strategy , as the report that states that the victim's blood PCRA Counsel concluded that Trial Counsel's failure to raise the-victim's blood11 11 See Pro Se Amended PCRA Petition, filed May 29, 2014 at~ "IV". PCRA Counsel concluded that Trial Counsel's failure to raise the ballistics reports was a reasonable trial strategy, as the reports were inconclusive and would have no relevance to the facts to be determined by the jury. Further, the Petitioner's hypothetical argument of multiple assailants could be confusing and mislead i ng. The Court finds that the Petitioner has failed to prove that Trial Counsel's failure to raise the ballistics report adversely affected the outcome of his trial. The referenced ballistics report states "Examinations to determine whether Item 8.1 (R-1) and Item 8.2 (R-2) [referencing the two bullets removed from the victim] were discharged from the same unknown firearm were inconclusive due to a lack of sufficient matching individual characteristics." Because the report is inconclusive, and because there is no evidence to support the Petitioner's theo ry regarding multiple assailants, the Petitioner was not prejudiced 

### by Trial Counsel's failure to raise such evidence. 

### (5) Admission ofvideo of the victim receiving treatment at the hospital 11 The Petitioner avers that this Court erred in admitting the video of the victim receiving treatment at the hospital. The Petitioner argues that the probative value of this video was far outweighed by the prejudicial value. The Petitioner also appears to argue that this Court erred in determining that the victim's statements on the video were admissible as a dying declaration. PCRA Counsel concluded that this matter has been previously litigated and the Court agrees. The Petitioner is not eligible for relief based upon allegations of error that have been previously litigated or waived. See 42 Pa.C.S. §9543. A matter has been12 12 See Pro Se Amended PCRA Petition, filed May 29, 2014 at~ "V". · · · previously litigated· 

### if "the highest appellate· court in which the petitioner could have had review as a matter of right has ruled on the merits of the issue" 42 Pa.C.S. §9544(a)(2). The Petitioner raised these matters on direct appeal and the Superior Court affirmed, holding that this Court did not e11' in finding that that the video was admissible as a dying declaration and that the prejudicial impact did not outweigh the probative value. Commonwealth v. Priest, 18 A.3d 1235, 1240"42 (Pa.Super. 2011). As review by the Pennsylvania Supreme Court is not "a matter of right", this matter has been previously litigated and the Petitioner is not entitled to relief. See 42 Pa.C.S. §5105(b); see also Commonwealth v. Derk, 913 A.2d 875, 882 n.4 (Pa.Super. 2006). 

### (6) Prosecutorial misconduct during the Commonwealth's closing statement 12 So far as this Court is capable of determining, the Petitioner avers that the Commonwealth argued in closing that the victim was "down" when shot the second time though Dr. Smith testified that the victim was below the shooter. The Petitioner further avers that such testimony is inconsistent with that of the eyewitness to the shooting. The Petitioner argues that the Commonwealth's alleged misstatement constitutes prosecutorial misconduct. PCRA Counsel concluded that the alleged misrepresentation by the prosecution during closing argument, specifically, the doctor's testimony and the position of the victim when he was shot, have no relevance to the issue to be determined by the jury. Initially, the Court observes that this claim could have been raised at Trial and that the Petitioner did not submit this allegation of error as ineffective assistance of counsel;13 13 Trial Transcript, April 28, 2010 at 760. 14 Trial Transcript, A pril 29, 2010 at 871. 15 Trial Transcript, April 29, 2010 at 858. recollection of the evidence. 15 As such, the Court finds that there is no prosecutorial that counsels, arguments were not evidence and that they were to rely upon their own a reasonable inference from the evidence presented. The jury was also properly instructed Culver, 51 A.3d 866 (Pa.Super. 2012). The Court finds that the challenged statements are evidence or proper inferences therefrom or were only oratorical flair." Commonwealth v. "[P]rosecutorial misconduct will not be found where comments were based on the Then what happens? Does Markez run away to leave him there to die? No. Markez finishes the job. What do we know about how that job was finished? Darius wasn't upright. Doc Smith testified Darius was down. Not only was he down, but that shot came from behind him. 14 The Commonwealth's closing argument included the following statement: 

### Q. The second shot came from in front or behind? A. Behind, behind and to the right. 13 A.

. .. Now, the other shot, the shot that went into the back of the neck, we could see from that one diagram as I pointed out that shot was coming from above downward, because it ended up down here. So the direction is roughlythis way, so the shot is coming fromup here. Well, that is almost impossible 

### if two people are standing facing each other, so the only logical way that shot probably could have 

### occurred is if the victim were below the shooter or if the victim were bending ove r in a fashion like this and the shot came in this particular manner (indicating). Dr. Smith, an expert forensic pathologist, testified as follows: object to the Commonwealth's closing argument. merits of this allegation under the rubric of ineffective assistance of counsel in failing to therefore it-is waived. See 42 Pa.C.S. §9544(b). Regardless, the Courtwill address the14 16 Pro Se Nunc Pro Tune PCRA I Response to Court's Notice of Intent to Dismiss, filed January 8, 2015 at 

### 1 "IV". 17 Trial Transcript, April 29, 2010 at 829-34. 18 Trial Transcript, April 20, 2010 at 850-54 & 887-97. 19 Pro Se Nunc Pro Tune PCRA , filed January 8, 2015. 

### beyond a reasonable doubt. 133 S.Ct. at 2155 (2013). Valentine held that two minimum sentence are elements of the crime and must be presented to a jury and proven clearly without me rit. Alleyne held that facts leading to an increase in a mandatory The Court did not r equest that PCRA Counsel review this claim because it is Pennsylvania caselaw applying Alleyne. The Petitioner argues that his sentence is unconstitutional under Alleyene and (8) Legality of sentence, citing Alleyne v. United States. 133 

### S. Ct. 2151 (2013) and Commonwealth v. Valentine, 101 A.3d 801 (Pa.Super. 2014)1 9 

### Court instructed the jury as to voluntary manslaughter. 18 

### shot the victim under heat of passion. Further, over the Commonwealth ' s objection, the The Petitioner may not now allege that he committed perjury at trial and that he actually The Court did not request that P9RA Counsel review this claim because it is clearly without merit. The Petitioner testified at trial that he did not shoot the victim. 17 

### Petitioner's) child. passion following the serious provocation of seeing the victim with the mother of his (the defense of voluntary manslaughter, in that the Petitioner killed the victim in the heat of The Petitioner avers that Trial Counsel was ineffective in failing to present a (7) Ineffective assistance of Trial Counsel in failing to raise a defense of voluntary I h 16 · mans aug ter 

### challenged statement. misconduct-and that Trial Counsel was not ineffective for failing to object to the15 20 Pro Se Nunc Pro Tune PCRA I Response to Court's Notice of Intent to Dismiss, filed January 8, 2015 at~ "II". Commonwealth v. Gwynn, 943 A.2d 940, 945 (Pa. 2008). Trial Counsel is presumed action or omission ; and (3) petitioner was prejudiced by counsel's conduct." prove: (1) the claim has arguable merit; (2) counsel lacked any reasonable basis for his As stated above, "a PCRA petitioner advancing an ineffectiveness claim must several reasons, such as topography and weather conditions. that the cell tower that connected the call may not be the nearest tower to the user for only identify the cell tower that connected the call and not the location of the user and limitations upon their applicability, specifically stating that the information sought would further avers that records received from the applicable wireless provider contained strict however such information from the time of the homicide is no longer available. Counsel PCRA Counsel avers that she made multiple attempts to obtain cell tower records, would show his location and support his alibi defense. cellular telephone records from the time of the homicide, which the Petitioner avers The Petitioner argues that Trial Counsel was ineffective 

### in failing to subpoena (9) Ineffective assistance of Trial Counsel in failing to subpoena cellular telephone records to show the Petitioner's location. at the time of the offense" to the jury beyond a reasonable doubt. sentence imposed in the present case as all elements of First Degree Murder were proven 2014). There is no legal application of the above-referenced cases to the mandatory §9713) were unconstitutional in light of the Alleyne decision. 101 AJd at812 (Pa.Super. - Pennsylvania Statutes requiring mandatory minimum sentences (42 Pa.C.S. §9712 and

.16 21 Pro Se Response to Counsel's "no merit" letter, filed February 12, 2016 at~ "V". paragraph shall render the proposed witness's testimony inadmissible." 42 Pa.C.S. witness's testimony. Failure to substantially comply with the requirements of this of birth and substance of testimony and shall include any documents material to that signed certification as to each intended witness stating the witness's name, address, date "Where a petitioner requests an evidentiary hearing, the petition shall include a not identify the witness or the testimony that she would have been able to provide. ineffective assistance of counsel in failing to call the witness at Trial. The Petitioner does inconsistently) avers that Trial Counsel was aware of this witness and provided The Petitioner avers that he has identified a new alibi witness and further (and (10) Discovery of a new alibi witness 

### I Ineffective assistance of counsel in failing to call a 

### k , 21 nown witness speculation. proof. Any alleged prejudice from Trial Counsel's failure to obtain such records is pure Non-existent cellular telephone records cannot sustain the Petitioner's burden of no reliable adjudication of guilt or innocence could have taken place."). the circumstances of the particular case so undermined the truth-determining process that that his conviction or sentence resulted from ineffective assistance of counsel which in ineffectiveness in a PCRA petition, he must prove by a preponderance of the evidence Howard, 749 A.2d 941, 949 (Pa.Super. 2000) ("When a petitioner alleges trial counsel's Commonwealth v. Fisher, 741 A.2d 1234, 1245 (Pa. 1999). See also Commonwealth v. effective and 

### it is-the defendant's burden to prove the elements of ineffectiveness. See17



### An appropriate Order follows: §954~(d)(l). 

### See also Pa.R

.. Crim.Pro, 902(A)(l5).The Petitioner'sexceedingly 

### vague. (and contradictory) statement regarding the existence of this unnamed witness does not afford him 

### relief.18 ;::, ··. , .. c.; · -

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### response. It 

### is further ORDERED that Attorney Sherri Hurst is granted leave to withdraw from further representation. The Petitioner is hereby advised of his right to appeal this Order to the Superior Cou11 of Pennsylvania within 

### thirty (30) days of this date. The Clerk of Courts shall send a copy of this Order to the Petitioner by certified mail, return receipt requested, in accordance with Pa.R.Crim.P. 907(4). foregoing Memorandum Opinion, it is hereby ORDERED that the that the Petition for Relief under the Post-Conviction Relief Act in the above-captioned matter is DISMISSED without Hearing. The Petitioner had been provided the requisite notice of the Court's intention to dismiss.his petition without a hearing and has filed a written ORDER 

# <j;hJ day of June, 2016, for the reasons set forth in the AND NOW, this MARKEZ PRIEST No.: 1503 of 2009

vs. COMMONWEALTH OF PENNSYLVANIA

IN THE COURT OF COMMON PLEAS OF BEA VER COUNTY

PENNSYLVANIA CRIMINAL DIVISION