J-S21012-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA 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. On 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-S21012-17

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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,1followed on May 

29, 2014, by an amended pro se petition. These petitions raised 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 misconduct 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 petition 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-S21012-17

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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 defense; (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 meritless. 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 notice 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.
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1. Whether the PCRA court erred in denying relief where trial 

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 erred 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 begin 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 conclusions. 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 ineffective 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 the 
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credibility of the eyewitness identifications and, in any event, 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 present 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 effect 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 

We 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, was 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). 
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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: 6/8/2017
1 

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: 

MANCINI,J. JUNE <{;' , 2016 

MEMORANDUM OPINION and ORDER 

MARKEZ PRIEST 

vs. No.: 1503 of2009 

COMMONWEALTH OF PENNSYLVANIA 

IN THE COURT OF COMMON PLEAS OF BEAVERGOUNTY 

PENNSYLVANIA 

CRIMINAL DIVISION 

\ 

\ Circulated 05/23/2017 10:08 AM
2 

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 Petitioner 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 walking 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 June 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 for 
4 

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 a 
5 The Court noted in this Order that the first and second supplemental issues raised by the Petitioner were patently 

frivolous and need not be reviewed by Counsel. The Court shall discuss these issues below. 

5 

Counsel petitioning to withdraw from PCRA representation must proceed 

... under Commonwealth v. Turner, 518 Pa. 491, 544 A.2d 927 (1988), and 

Commonwealth v. Finley, 379 Pa.Super. 390, 550 A.2d 213 (1988). Similar 

to the Anders situation, Turner/Finley counsel must review the case 

zealously. Turner/Finley counsel must then submit a "no-merit" letter to the 

trial court ... detailing the nature and extent of counsel's diligent review of 

the case, listing the issues which the petitioner wants to have reviewed, 

explaining why and how those issues lack merit, and requesting permission 

to withdraw. 

and the Petitioner filed a written response on April 26, 2016. 

PCRA Petition without a hearing for the reasons set forth in Counsel's "no merit" letters 

907(1) the Court provided the Petitioner notice of the Court's intention to dismiss his 

failing to discover and call this witness. On April 8, 2016, pursuant to Pa.R.Crim.Pro. 

the discovery of a new alibi witness and/or ineffective assistance of trial counsel in 

in which he raised claims duplicative of those stated above and one new ground for relief: 

was also without merit. The Petitioner filed a response to this letter on February 12, 2016, 

January 11, 2016 Counsel filed a second "no merit" letter which concluded that this claim 

supplemental issue raised by the Petitioner, regarding the cellular telephone records.' On 

On February 24, 2015, the Court Ordered that appointed Counsel review the third 

location at the time of the offense. 

ineffective infailing to subpoena cellular telephone records to show the Petitioner's 

101 A.3d 801 (Pa.Super. 2014); and (3) the Petitioner alleged that trial counsel was 

citing Alleyne v. United States, 133 S.Ct. 2151 (2013) and Conunonwealth v. Valentine, 

voluntary manslaughter defense; (2) the Petitioner alleged that his sentence was illegal, 
6 See Pro Se PCRA Petition and Supplemental Memorandum of Law, filed April 23, 2014. 

Graham [Graham v. Florida, 130 S.Ct. 2011(2010)], Roper [Roper v. 

Simmons, 125 S.Ct. 1183 (2005)), and our individualized sentencing 

decisions make clear that a judge or jury must have the opportunity to 

consider mitigating circumstances before imposing the harshest possible 

penalty for juveniles. By requiring that all children convicted of homicide 

receive lifetime incarceration without possibility of parole, regardless of 

their age and age-related characteristics and the nature of their crimes, the 

mandatory sentencing schemes before us violate this principle of 

Alabama the United States Supreme Court held as follows: 

6 

support of this argument he cites Miller v. Alabama and related cases. In Miller v. 

parole violates Eighth and Fourteenth Amendments of the United States Constitution; in 

The Petitioner argues that his mandatory sentence of incarceration for life without 

(]) Legality of sentence, citing Miller v. Alabama, 132 S.Ct. 2455 (2012) 6 

Opinion 

relief. The Court has paraphrased the Petitioner's arguments for brevity and clarity. 

the Court finds that the Petitioner's ten claims are without merit and do not entitle him to 

Finley and has conducted an independent review of the case. For the reasons that follow, 

The Court finds that Counsel has complied with the technical demands of Tmner I 

quotations omitted). 

Commonwealth v. Wrecks, 931 A.2d 717, 721 (Pa.Super. 2007) (internal citations and 

Counsel must also send to the petitioner.H) a copy of the "no-. 

merit" letter/brief; (2) a copy of counsel's petition to withdraw; and (3) a 

statement advising petitioner of the right to proceed pro se or by new 

counsel. ... [W]here counsel submits a petition and no-merit letter that do 

satisfy the technical demands of Turner/Finley, the court ... must then 

conduct its own review of the merits of the case. If the court agrees with 

counsel that the claims are without merit, the court will permit counsel to 

withdraw and deny relief. 

/\ 

.~/ I 
7 

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 credibility of the victim's identification, Chalese Jackson's prior 

DNA match was a reasonable 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 the 
9 

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 whether 
10 

10 See Pro Se Amended PCRA Petition, filed 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 blood 
11 

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 misleading. 

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 theory regarding multiple assailants, the Petitioner was not 

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

(5) Admission of video 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 been 
12 

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, April 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 over 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 the 
14 

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 merit. Alleyne held that facts leading to an increase in a mandatory 

The Court did not request 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)19 

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 the 
15 

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. See 
17 

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 

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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 

AND NOW, this <j;hJ day of June, 2016, for the reasons set forth in the 

MARKEZ PRIEST 

vs. No.: 1503 of 2009 

COMMONWEALTH OF PENNSYLVANIA 

IN THE COURT OF COMMON PLEAS OF BEA VER COUNTY 

PENNSYLVANIA 

CRIMINAL DIVISION