J-S41009-15

*Retired Senior Judge specially assigned to the Superior Court.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

EDDIE FELICIANO,

Appellant No. 27 MDA 2015

Appeal from the PCRA Order entered December 18, 2014,

in the Court of Common Pleas of Berks County,

Criminal Division, at No(s): CP-06-CR-0003359-2010

BEFORE: ALLEN, LAZARUS, and PLATT*, JJ.

MEMORANDUM BY ALLEN, J.: FILED JULY 10, 2015

Eddie Feliciano (“Appellant”) appeals pro se from the order denying his 

first petition for relief under the Post Conviction Relief Act (“PCRA”), 42 

Pa.C.S.A. sections 9541-46. We affirm the PCRA court’s order in part, and 

remand for resentencing. 

The pertinent facts have been summarized as follows:

On Monday, January 18, 2010, Detective Christopher 

Mayer of the Reading Police Department was working in an 

undercover capacity in the Vice Section handling drug 

transactions, among other matters. At the time, Detective 

[Pasquale] Leporace was also working in the Vice Section 

of the Reading Police Department. After receiving 

information from a confidential source, Detective Leporace 

instructed Detective Mayer to accompany the confidential 

source to the 800 block of Locust Street in the City of 

Reading, Berks County, Pennsylvania, to attempt to 

purchase five bags containing cocaine from [Appellant].

A few moments after Detective Mayer and the 

confidential source arrived in the 800 block of Locust 
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Street, [Appellant] exited 848 Locust Street and walked to 

the passenger side of Detective Mayer’s vehicle. Detective 

Mayer was driving a blue, late-80’s model Chevrolet pickup 

truck. [Appellant] approached the passenger side of the 

truck and handed the confidential source five bags 

containing a substance that subsequently tested positive 

for cocaine. Detective Mayer took the five packets from 

the confidential source and handed [Appellant] $40 in prerecorded U.S. currency. [Appellant] walked away from the 

truck, and Detective Mayer and the confidential source 

went to the Vice Office, where Detective Mayer performed 

a preliminary Valtox test on the substance in the packets. 

The substance tested positive for cocaine. Detective Mayer 

then placed the five packets containing cocaine into an 

evidence envelope, which he sent to the Bethlehem 

Regional Laboratory for chemical testing. 

On January 21, 2010, Detective Mayer returned to the 

800 block of Locust Street with the confidential source 

around 2:30 [p.m.] Detective Mayer was driving the same 

blue truck. After parking the truck, Detective Mayer 

encountered an unnamed Hispanic female (hereinafter 

“Jane Doe”). Detective Mayer stepped out of the truck and 

spoke with Jane Doe. She told [Detective Mayer], “he’s 

bagging it up. He will be out.” Jane Doe walked into 848 

Locust Street, and Detective Mayer returned to the driver’s 

seat of the truck. A few moments later, [Appellant] exited 

848 Locust Street, approached the truck, and got in the 

passenger side. [Appellant] instructed Detective Mayer to 

drive around the block. During the ride, Detective Mayer 

handed [Appellant] $40 in pre-recorded U.S. currency in 

exchange for five bags containing a substance that 

subsequently tested positive for cocaine.

Commonwealth v. Feliciano, 67 A.3d 19, 21-22 (Pa. Super. 2013) (en 

banc) (citation omitted).

Appellant was arrested and charged with multiple drug and conspiracy 

offenses. Over Appellant’s objection at his jury trial, the trial court 

permitted the statement made by Jane Doe. See N.T., 3/23/11, at 29. The 
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jury convicted Appellant of all charges. On March 30, 2011, the trial court 

imposed an aggregate term of seven years and three months to fourteen 

years and six months of imprisonment.

Appellant filed a timely appeal to this Court. After a panel of this 

Court originally reversed and remanded for a new trial based upon its belief 

that Jane Doe’s statement was inadmissible, we granted the 

Commonwealth’s petition for reargument. Feliciano, 67 A.3d at 23. In a 

published opinion, we rejected Appellant’s challenges to the sufficiency of 

the evidence, as well as to the chain of custody of the drugs. Additionally, 

we concluded that the trial court properly admitted Jane Doe’s statement to 

Detective Mayer under the co-conspirator exception to the hearsay rule. Id. 

at 26-27. On November 16, 2013, our Supreme Court denied Appellant’s 

petition for allowance of appeal. Commonwealth v. Feliciano, 81 A.3d 75 

(Pa. 2013).

On February 24, 2014, Appellant filed a pro se PCRA petition, and the 

PCRA court appointed counsel. On July 9, 2014, PCRA counsel filed a motion 

to withdraw and a “no-merit” letter pursuant to Commonwealth v. Turner, 

544 A.2d 927 (Pa. 1988), and Commonwealth v. Finley, 550 A.2d 213 

(Pa. Super. 1988) (en banc). In his “no-merit” letter, PCRA counsel 

addressed each issue raised by Appellant in his pro se petition, and 

concluded that Appellant’s claims were either previously litigated or lacked 

arguable merit. The PCRA court granted PCRA counsel’s motion to withdraw 

on September 11, 2014. After conducting an independent review of the 
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record, the PCRA court filed, on November 6, 2014, Pa.R.Crim.P. 907 notice 

of its intent to dismiss Appellant’s petition. Appellant filed his response on 

November 18, 2014. By order entered December 18, 2014, the PCRA court 

denied Appellant’s PCRA petition. This timely pro se appeal followed. Both 

Appellant and the PCRA court have complied with Pa.R.A.P. 1925.

Within his pro se brief, Appellant raises the following issues:

A. Whether trial counsel provided ineffective assistance by 

failing to conduct a thorough investigation of the 

unidentified Jane Doe co-conspirator who could have 

provided material and favorable testimony?

B. Whether trial counsel provided ineffective assistance in 

failing to challenge whether the Commonwealth’s 

investigation of Appellant was improperly protracted 

resulting in sentencing manipulation?

C. Whether direct appeal counsel provided ineffective 

assistance in failing to seek remand during the pendency 

of [allocatur] in the Pennsylvania Supreme Court between 

6/13/13 and 11/26/13 to challenge the legality of 

Appellant’s sentence pursuant to [Alleyne v. United 

States], 133 S.Ct. 2151 (2013)?

D. Whether PCRA counsel provided ineffective assistance 

for failing to file an amended petition raising the ineffective 

assistance of trial and appellate counsel?

Appellant’s Brief at 3.

This Court may only overturn a PCRA court’s dismissal of a PCRA 

petition based on an error of law or an abuse of discretion. 

Commonwealth v. Johnson, 841 A.2d 136, 140 (Pa. Super. 2003), appeal 

denied, 858 A.2d 109 (Pa. 2004). “Great deference is granted to the 

findings of the PCRA court, and these findings will not be disturbed unless 
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they have no support in the certified record.” Commonwealth v. Daniels, 

947 A.2d 795, 798 (Pa. Super. 2008), citing Commonwealth v. McClellan, 

887 A.2d 291, 298 (Pa. Super. 2005), appeal denied, 897 A.2d 453 (Pa. 

2006). Moreover, a PCRA court may decline to hold a hearing on the 

petition if the PCRA court determines that the petitioner’s claim is patently 

frivolous and is without a trace of support either in the record or from other 

evidence. Commonwealth v. Jordan, 772 A.2d 1011 (Pa. Super. 2001). 

To be eligible for post-conviction relief, a petitioner must plead and 

prove by a preponderance of the evidence that his conviction or sentence 

resulted from one or more of the enumerated errors or defects in 42 

Pa.C.S.A. section 9543(a)(2), and that the issues he raises have not been 

previously litigated. Commonwealth v. Carpenter, 725 A.2d 154, 160 

(Pa. 1999). An issue has been “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, or if the issue has been raised and decided 

in a proceeding collaterally attacking the conviction or sentence. 

Carpenter, 725 A.2d at 160; 42 Pa.C.S.A. § 9544(a)(2), (3). If a claim has 

not been previously litigated, the petitioner must then prove that the issue 

was not waived. Carpenter, 725 A.2d at 160. An issue will be deemed 

waived under the PCRA “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.” 42 Pa.C.S.A. § 9544(b).
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In his first issue, Appellant asserts that trial counsel was ineffective for 

failing to fully investigate and/or present the testimony of the unidentified 

Jane Doe. The PCRA court, citing this Court’s conclusion that sufficient 

evidence established Jane Doe as a co-conspirator, concluded that 

Appellant’s present claim is previously litigated under the PCRA. See PCRA 

Opinion, 2/23/15, at 6-7. Even were we to disagree, Appellant still would 

not be entitled to relief. 

In order to establish that trial counsel was ineffective for failing to 

investigate and/or call a witness at trial, a PCRA petitioner must 

demonstrate that: 

(1) the witness existed; (2) the witness was available to 

testify for the defense; (3) [trial] counsel knew of, or should 

have known of, the existence of the witness; (4) the 

witness was willing to testify for the defense; and (5) the 

absence of the testimony of the witness was so prejudicial 

as to have denied [the appellant] a fair trial.

Commonwealth v. Thomas, 44 A.3d 12, 23 (Pa. 2012) (citations omitted). 

Appellant has not met this burden. Specifically, Appellant has failed to 

proffer any evidence that Jane Doe would be willing to testify on Appellant’s 

behalf, let alone provide favorable testimony. See Pa.R.Crim.P. 902(A)(15) 

(explaining that “any request for an evidentiary hearing shall include a 

signed certification at to each intended witness”).

Moreover, our review of the record supports the PCRA court’s 

conclusion that Appellant could not establish prejudice:
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Appellant asserts that [Jane Doe’s] testimony would 

have changed the outcome of the trial. This is not so. 

There was more than sufficient independent evidence to 

convict [Appellant] without this testimony, as the 

testimony and exhibits showed that Appellant gave 

Detective Mayer $40 in pre-recorded currency and the 

detective received directly from Appellant five bags 

containing a substance that tested positive for cocaine. As 

there was no prejudice, we need not address the other 

[ineffectiveness] prongs.

PCRA Court Opinion, 2/23/15, at 7.

Appellant next claims that trial counsel was ineffective in failing to 

challenge whether the length of the Commonwealth’s investigation and 

charging choices resulted in “sentencing manipulation.” Appellant’s Brief at 

10. Our review of the record support’s the PCRA court’s conclusion that 

Appellant did not raise this claim in his original PCRA petition, and did not 

petition to amend his petition to include it once PCRA counsel was permitted 

to withdraw. See id., at 6 n.2. Thus, Appellant’s claim is waived under the 

PCRA, and we need not address it further. Carpenter, supra. 

In his third claim, Appellant asserts that appellate counsel was 

ineffective for failing to seek a remand of his case while his allowance of 

appeal was pending so that he could raise an illegality of sentence claim 

under Alleyne v. United States, 133 S.Ct. 2151 (2013). The PCRA court 

found merit to this claim, and determined that PCRA counsel was ineffective 

in this regard. The PCRA court explained:

This PCRA petition, Appellant’s first, was filed on 

February 24, 2014, the day his judgment of sentence 

became final. Thus, it appears that we may have 

jurisdiction to review the legality of his sentence.
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The United States Supreme Court has held that “[w]hen 

a decision of this Court results in a [‘]new rule,[’] that rule 

applies to all criminal cases still pending on direct review.” 

Schriro v. Summerlin, 542 U.S. 348, 351 (2004), citing 

Griffin v. Kentucky, 479 U.S. 314, 328 (1987). We now 

find Alleyne may be applied retroactively to Appellant, as 

his case was still pending on direct review when Alleyne

was decided. The fact that this case is now on collateral 

review may be of no moment.

We now turn to the merits of Appellant’s issue of 

whether Section 18 Pa.C.S.A. §6317(b), (Drug Free School 

Zones) is unconstitutional under Alleyne. The Superior 

Court, in Commonwealth v. Bizzel, [107 A.3d 102 (Pa. 

Super. 2014)], very recently stated:

“. . . the United States Supreme Court’s decision in 

Alleyne rendered unconstitutional those portions of 

Pennsylvania’s mandatory minimum sentencing statutes 

that allow a judge to increase a defendant’s sentence 

based upon a preponderance of the evidence standard as 

opposed to utilizing the beyond a reasonable doubt 

standard. Thus, Alleyne rendered 18 Pa.C.S. § 6317(b) 

unconstitutional.”

Id. at [104]. 

Appellant raises a valid constitutional issue that applies 

to his sentences. 

***

PCRA counsel was ineffective for failing to raise this new 

constitutional rule in an Amended PCRA petition. He was 

appointed March 10, 2014, well after Alleyne was decided, 

and it appears that this constitutional rule was applicable 

to his client’s case. 

Appellant preserved the issue of ineffectiveness of PCRA 

counsel by raising it in his objection to our Notice of Intent 

to Dismiss. See Commonwealth v. Rykard, 55 A.3d 

1177 (Pa. Super. 2012) citing Commonwealth v. Pitts, 

987 A.2d 875 (Pa. 2009).

Accordingly, we respectfully request that the Superior 

Court vacate Appellant’s sentence and remand this matter 
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for resentencing, without application of the mandatory 

minimum sentences, as Appellant’s sentence was still 

under direct review when Alleyne was decided. It 

appears that this new constitutional rule concerning 

mandatory minimum sentences applies to Appellant 

retroactively. Further, §6317(b) has been rendered 

unconstitutional in its entirety.

PCRA Court Opinion, 2/23/15, at 9-10 (emphasis omitted). See also 

Commonwealth v. Hopkins, 2015 Pa. LEXIS 1282, ___ A.3d ___ (Pa. 

2015) (affirming unconstitutionality of § 6317 in its entirety and concluding 

that its provisions are non-severable).

Our review of the record supports the trial court’s conclusion that 

PCRA counsel should have raised appellate counsel’s ineffectiveness for 

failing to amend Appellant’s allocatur petition to include an Alleyne claim. 

Appellant challenges PCRA counsel’s ineffectiveness in his fourth and final 

issue. Although Appellant’s claim regarding PCRA counsel’s failure to raise 

trial counsel’s ineffectiveness lacks merit, we agree with the PCRA court that 

PCRA counsel should have raised a claim of appellate counsel’s 

ineffectiveness.

In sum, we affirm the PCRA court’s dismissal of Appellant’s PCRA 

petition to the extent he claimed ineffectiveness of trial counsel. However, 

as requested by the PCRA Court, we grant Appellant collateral relief in the 

form of vacating his judgment of sentence pursuant to Alleyne, and remand 

for resentencing.
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Order affirmed in part. Judgment of sentence vacated. Case 

remanded for resentencing. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/10/2015