J-S50041-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

COREY CONAWAY

Appellant No. 2975 EDA 2014

Appeal from the PCRA Order September 19, 2014

In the Court of Common Pleas of Philadelphia County

Criminal Division at No(s): CP-51-CR-0005366-2010

BEFORE: PANELLA, J., MUNDY, J., and JENKINS, J.

MEMORANDUM BY JENKINS, J.: FILED OCTOBER 05, 2015

Appellant Corey Conaway appeals from the September 19, 2014 order 

of the Philadelphia County Court of Common Pleas dismissing his petition 

filed pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. § 9541 

et seq. We affirm.

The trial court set forth the following procedural history:

On February 10, 2012, following a jury trial . . . , 

[Appellant] was convicted of one count of first degree 

murder, (18 Pa.C.S. § 2502(a)), one count of robbery (18 

Pa.C.S. § 3701(a)(1)(i)), one count of burglary (18 Pa.C.S. 

§ 3502(a)), and one count of possessing an instrument of 

crime (18 Pa.C.S. 907(a)). The [c]ourt immediately 

imposed the mandatory sentence of life in prison for the 

murder charge . . . . No further penalty was imposed on 

the remaining charges. [Appellant] was represented at 

trial and at sentencing by Thomas McGill, Esquire.

On March 9, 2012, [Appellant] filed a pro se [n]otice of 

[a]ppeal, which the [c]ourt received on March 19, 2012. 

The [c]ourt subsequently held a hearing, pursuant to 
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Commonwealth v. Grazier, 713 A.2d 81 (Pa.1998), on 

April 24, 2012, and permitted [Appellant] to proceed pro 

se on appeal, while Mr. McGill was to remain as standby 

counsel.

On November 5, 2012, the Superior Court dismissed 

[Appellant’s] appeal for failure to file a brief. [Appellant] 

then filed a pro se petition under the [PCRA] on November 

4, 2013. Stephen O’Hanlon, Esquire was appointed to 

represent [Appellant] on May 20, 2014.

On June 3, 2014, pursuant to Commonwealth v. Finley, 

550 A.2d 213 (Pa.Super.1988), Mr. O’Hanlon filed a letter 

stating there was no merit to [Appellant’s] claims for 

collateral relief. See Finley Letter of Stephen O’Hanlon, 

filed 6/3/2014 (“Finley Letter”). On July 31, 2014, the 

[c]ourt issued notice pursuant to Pa.R.Crim.P. 907 (“907 

Notice”) of its intent to dismiss [Appellant’s] PCRA 

[p]etition without an evidentiary hearing. [Appellant] did 

not file either a request to amend his PCRA petition, or a 

response to the [c]ourt’s 907 Notice.

On August 26, 2014, [Appellant] filed a document styled 

as an “Addendum to PCRA” (“Addendum”) raising 

additional claims. On September 19, 2014, the [c]ourt 

formally dismissed [Appellant’s] PCRA [p]etition and 

granted Mr. O’Hanlon’s motion to withdraw his 

appearance.

[Appellant] has now appealed the [c]ourt’s dismissal of his 

PCRA [p]etition, alleging: 1) the [c]ourt erred by not 

granting a hearing on his petition; 2) ineffective assistance 

of PCRA counsel; 3) that [Appellant] was arrested illegally; 

4) that [Appellant’s] confession was illegally obtained; 5) 

that trial counsel was ineffective; 6) that [Appellant] was 

brought before a [m]agistrate [j]udge without counsel; 7) 

that the trial court improperly instructed the jury; and 8) 

that [Appellant] was illegally charged and sentenced for 

murder since the Commonwealth withdrew its [n]otice of 

[a]ggravating [c]ircumstances. Matters Complained of on 

Appeal Pursuant to Pa.R.Crim.Proc. Rule [sic] 1925(b) 

(“Statement of Errors”) at ¶¶ 1-8(c). 
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Opinion, 12/23/2014.1 

Appellant raises the following issues in the question presented section 

of his appellate brief: 

1. Whether the PCRA [c]ourt erred in dismissing 

Appellant’s PCRA motion without an evidentiary hearing?

2. Whether the assistance of PCRA counsel Stephen T. 

O’Hanlon, Esq., was ineffective at critical stages of his 

stewardship?

a. Whether the assistance of said counsel was 

ineffective in evaluating Appellant’s issues and 

subsequently declaring issues are without merit?

b. Whether said counsel was ineffective in refusing to 

file [amendment] claiming an additional issue on 

behalf of Appellant prior to being allowed to 

withdraw?

c. Whether Appellant was illegally sentenced by the 

[t]rial [j]udge as opposed to a jury of his peers?

3. Whether Appellant was illegally arrested when the 

circumstances of said arrest compared with those issue(s) 

found in [Payton v. New York, 445 U.S. 573, 100 S.Ct. 

1371 (1980)]?

a. Whether Philadelphia [p]olice gained consent from 

Appellant’s [m]other to enter Appellant’s home under 

false pretense?

b. Whether Appellant was then placed under arrest 

as defined in [Kaupp v. Texas, 538 U.S. 626, 123 

S.Ct. 1843 (2003)] despite claims that Appellant 

went voluntarily to the police station?

c. Whether Philadelphia [p]olice had sufficient time 

between identifying Appellant and securing/arresting 

____________________________________________

1 Both Appellant and the trial court complied with Pennsylvania Rule of 

Appellate Procedure 1925.
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Appellant to require an arrest warrant and having 

not done so arrested Appellant illegally regardless of 

alleged probable cause?

d. Whether all material evidence as well as 

Appellant’s statement/confessions were fruit of the 

poisonous tree?

4. Whether the intent of judicial decision met in [Miranda 

v. Arizona, 384 U.S. 436, 86 S.Ct. 1602 (1966)] was 

respected when [Philadelphia] [p]olice arrested Appellant, 

questioned him and gained statements and subsequently 

mirandized Appellant and then led Appellant through the 

previously acquired statement?

a. Whether the evidence ascertained subsequent to 

illegally acquiring the aforementioned statement is 

fruit of the poisonous tree?

b. Whether Detective[s] Keen and Sierra, committed 

perjury in claiming that Appellant was immediately 

mirandized upon arrival at the police station?

5. Whether trial counsel [Mr.] McGill had adequate time to 

prepare for trial having been reinstated as attorney of 

record as opposed to Appellant proceeding pro se [on] 

2/3/2012, and trial starting on [2/6/2012]?

a. Whether trial counsel [Mr.] McGill, should have 

investigated the manner in which Appellant was 

arrested and interrogated?

6. Whether [t]rial [c]ounsel was generally ineffective?

7. Whether Appellant[’s] [d]ue [p]rocess [r]ights were 

violated when brought before a magistrate [j]udge in a 

[j]udicial [p]roceeding as in [Rothgery v. Gillespie 

County of Texas, 554 U.S. 191, 128 S.Ct. 2578 (2008)]?

8. Whether Judge Glenn B. Bronson’s jury instruction[s] 

were unlawful compared to the judicial decision in 

[Francis v. Franklin, 471 U.S. 307, 105 S.Ct. 1965 

(1985)]?

9. Whether [the assistant district attorney] amended or 

withdrew the charge of first[-]degree murder, when she 

withdrew the notice of aggravating circumstances of like 
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document removing the “death penalty” from the table 

since first degree is explicitly capital in its statutory 

language?

a. Whether Appellant was illegally sentenced by the 

trial judge pursuant to 18 Pa.C.S. § 2502(a), 42 

Pa.C.S. § 9711, 42 Pa.C.S. §9714, 18 Pa.C.S. § 

4701?

b. Whether Appellant was illegally charged when he 

was confronted with a non-specific charge viz, 

“criminal homicide,” 18 Pa.C.S. § 2501, which 

encompasses 18 Pa.C.S. § 2502[(a), (b), and (c)], § 

2503, and § 2504, contrary to [Commonwealth v. 

Little, 314 A.2d 270 (Pa.1974)] and [Albrecht v. 

United States, 273 U.S. 1, 47 S.Ct. 250 (1927)]?

c. Whether the trial judge violated [Appellant’s] 

rights when he amended the prosecution[’]s 

charging instrument, changing criminal homicide 18 

Pa.C.S. § 2501 into several specific charges, i.e., 18 

Pa.C.S. § 2502(a), 2502(b), 2502(c), etc.?

Appellant’s Brief at 4-6 (unnecessary capitalization omitted). Appellant 

raised the same issues in his Rule 1925(b) statement. See Matters 

Complained of on Appeal Pursuant to Pa.R.Crim.P. 1925(b), filed 11/5/2014.

In counsel’s Turner/Finley2letter, counsel raised the following 

issues: (1) Appellant was unlawfully arrested; (2) Appellant was not properly 

advised of his Miranda rights; (3) Appellant had no counsel before a bail 

commissioner; (4) trial counsel was generally ineffective; and (5) the jury 

instruction regarding reasonable doubt was improper. Turner/Finley Letter 

____________________________________________

2 Commonwealth v. Turner, 544 A.2d 927 (Pa.1988); Finley, 550 A.2d 

213.
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dated June 3, 2014 from Stephen T. O’Hanlon, Esq. to the Honorable Glenn 

B. Bronson.

In Appellant’s “Addendum” filed after the trial court issued its notice of 

intent to dismiss the PCRA petition, Appellant raised the following issues: 

(1) Appellant was deprived of his due process rights when he was tried for, 

and found guilty of, a capital offense after the prosecutor withdrew the 

notice of aggravating circumstances; (2) Appellant’s due process rights were 

violated when he was charged with “general homicide”; and (3) Appellant 

was illegally sentenced because “he was sentenced outside of any 

legislatively authorized sentencing statute, there was no presentencing 

investigation and petitioner stood trial for a capital offense without the 

prerequisite ‘aggravating circumstances’ being establish[ed] (being 

withdrawn before trial).” Addendum, at 1-2. 

Our standard of review from the denial of post-conviction relief “is 

limited to examining whether the PCRA court’s determination is supported by 

the evidence of record and whether it is free of legal error.” 

Commonwealth v. Ousley, 21 A.3d 1238, 1242 (Pa.Super.2011) (citing 

Commonwealth v. Morales, 701 A.2d 516, 520 (Pa.1997)).

Appellant first contends the trial court erred because it did not hold an 

evidentiary hearing prior to dismissing his PCRA petition. 

A PCRA petitioner “is not entitled to [an evidentiary] hearing as a 

matter of right.” Commonwealth v. Johnson, 945 A.2d 185, 188 

(Pa.Super.2008) (quoting Commonwealth v. Taylor, 933 A.2d 1035, 1040 
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(Pa.Super.2007)). “[T]he PCRA court can decline to hold a hearing if there 

is no genuine issue concerning any material fact and the petitioner is not 

entitled to post-conviction collateral relief, and no purpose would be served 

by any further proceedings.” Id. (quoting Taylor, 933 A.2d at 1040).

The trial court found Appellant failed to specify any substantive claims 

for which there are genuine issues of fact that would necessitate a hearing. 

Opinion, 12/23/2014, at 12. This was not error.

Appellant’s second claim alleges PCRA counsel was ineffective because 

counsel stated Appellant’s issues were meritless, refused to file an amended 

PCRA petition, and failed to allege Appellant was illegally sentenced by a 

judge, rather than the jury. Appellant’s Brief at 4. The addendum filed by 

Appellant did not raise PCRA counsel ineffectiveness and Appellant did not 

raise PCRA counsel ineffectiveness before the trial court, in either an 

amended PCRA petition or a response to the trial court’s notice of intent. 

Accordingly, Appellant has waived his PCRA counsel ineffectiveness claims. 

See Commonwealth v. Pitts, 981 A.2d 875, 880 n.4 (Pa.2009) (Appellant 

waived PCRA counsel ineffectiveness claim when not raised in response to 

Turner/Finley letter or court’s notice of intent to dismiss).

Appellant’s third claim alleges Appellant was illegally arrested because: 

(1) the police gained consent from his mother to enter the home under false 

pretenses; (2) he was placed under arrest, and did not voluntarily go to the 

police station; and (3) the police failed to obtain an arrest warrant. 

Appellant’s Brief at 4. Appellant concludes that the evidence and statements 
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obtained following Appellant’s illegal arrest were fruit of the poisonous tree. 

Id. Appellant’s fourth claim alleges the police questioned him in violation of 

Miranda, the evidence obtained after the illegal questioning is the fruit of 

the poisonous tree, and the detectives committed perjury when they claimed 

they read Appellant his Miranda warnings immediately after he arrived at 

the police station. Id. at 4-5. 

As presented, Appellant waived the claims raised in his third and 

fourth issues by failing to raise them on direct appeal. 42 Pa.C.S. § 9544(b) 

(“For purposes of this subchapter, an issue is waived if the petitioner could 

have raised it but failed to do so before trial, at trial, during unitary review, 

on appeal or in a prior state post-conviction proceeding.”). Further, even if 

we view the claims as counsel ineffectiveness claims, the claims fail. 

For ineffective assistance of counsel claims, the petitioner must 

establish: “(1) his underlying claim is of arguable merit; (2) counsel had no 

reasonable basis for his action or inaction; and (3) the petitioner suffered 

actual prejudice as a result.” Commonwealth v. Spotz, 84 A.3d 294, 311 

(Pa.2014) (quoting Commonwealth v. Ali, 10 A.3d 282, 291 (Pa.2010)). 

“[C]ounsel is presumed to be effective and the burden of demonstrating 

ineffectiveness rests on appellant.” Ousley, 21 A.3d at 1244 (quoting 

Commonwealth v. Rivera, 10 A.3d 1276, 1279 (Pa.Super.2010)). “The 

failure to prove any one of the three [ineffectiveness] prongs results in the 

failure of petitioner’s claim.” Id. (quoting Rivera, 10 A.3d at 1279). 

The PCRA court found:
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[Appellant] claims that he was illegally arrested, that 

police obtained consent to enter his house under false 

pretenses, that police had sufficient time to obtain an 

arrest warrant, and that [Appellant’s] confession and all 

material evidence derived from [Appellant’s] arrest was 

the fruit of the poisonous tree. Statement of Errors at ¶¶ 

3-3(c), 4-4(b), 5(a), PCRA Petition at 10-11. The [c]ourt 

will deem this claim to have been raised as the basis for a 

claim of trial counsel’s ineffectiveness.

Trial counsel vigorously asserted, in pretrial motions, all of 

[Appellant’s] claims arising out his arrest, interrogation, 

and the subsequent search and seizure of physical 

evidence. N.T., 2/3/2012, at 22-105. Counsel argued that 

[Appellant] was arrested without probable cause, that his 

statement was the result of coercion, both psychological 

and physical, that [Appellant’s] Miranda rights were 

violated, and that the search warrant was tainted by 

including information obtained from [Appellant’s] 

confession. N.T., 2/3/2012, at 22-23. At the evidentiary 

hearing held to address counsel’s motion to suppress the 

confession and the physical evidence, counsel thoroughly 

cross-examined the Commonwealth’s witnesses. N.T., 

2/3/2012, at 32-34, 66-77, 101-102. He conferred with 

[Appellant], who advised counsel that he did not wish to 

testify at the evidentiary hearing. N.T., 2/3/2012, at 103. 

The record fails to demonstrate any manner in which 

counsel failed to effectively assert [Appellant’s] claims to 

the trial court. Accordingly, any ineffective assistance of 

counsel claim premised upon [Appellant’s] claims 

regarding his arrest, confession and the searches would be 

clearly without merit.

Following the hearing, the [c]ourt found, based on the 

evidence presented, that [Appellant] voluntarily went to 

police headquarters after he was contacted by police, that 

he was given Miranda warnings within eight minutes of 

arriving at police headquarters, that he voluntarily waived 

his rights and confessed, that the search warrant was 

valid, and that the manner in which the searches were 

conducted was lawful. N.T., 2/3/2012, at 103-105. As a 

result, [Appellant’s] motions to suppress were denied. 

That decision was fully supported by the record. While 

[Appellant] could have had the Superior Court review that 
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decision on appeal, his appeal was dismissed since 

[Appellant], representing himself, failed to file a brief.

Therefore, [Appellant] is entitled to no further review of 

this issue on this PCRA appeal.

Opinion, 12/23/2014, at 7-80. This was not error. 

Appellant’s fifth claim alleges trial counsel did not have adequate time 

to prepare for trial because his attorney was re-instated on February 3, 

2012, and trial started February 6, 2012.3

The PCRA court found the following:

[Appellant] claims that counsel was ineffective as he did 

not have “adequate time to prepare for trial having been 

reinstated as attorney of record as opposed to [Appellant] 

. . ." three days before trial began. Statement of Errors at 

¶ 5(b), PCRA Petition at 13 -14. This claim is frivolous.

The record indicates that Mr. McGill entered his 

appearance on February 9, 2010, and represented 

[Appellant] throughout the entirety of the proceedings 

either as trial counsel or as standby counsel. It is true that 

the [c]ourt agreed to permit [Appellant] to represent 

himself following a hearing on October 3, 2011, but 

required Mr. McGill to remain in the case as standby 

counsel. In that role, Mr. McGill was required to remain in 

the case and provide any assistance necessary in trying 

the case, including the possibility of taking over if 

[Appellant] was not permitted, or declined, to represent 

himself. In fact, after [Appellant] refused to accept the 

jurisdiction and authority of the [c]ourt at the motions 

hearing on February 3, 2012, Mr. McGill was ordered to 

take over to handle the motions. N.T., 2/3/12, at 20-22.1

____________________________________________

3 The subpart of Appellant’s fifth issue claims counsel should have 

investigated the manner in which Appellant was arrested and interrogated. 

This issue was addressed in the discussion of Appellant’s third and fourth 

issues. The trial court did not err when it found counsel was not ineffective 

in his handling of the arrest and interrogation issues.
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As stated above, Mr. McGill was ready and able to 

vigorously argue the motions. At trial, [Appellant] claimed 

that he was a “third party intervener” and was not the 

defendant on trial. He advised the [c]ourt that Mr. McGill 

could represent “the defendant,” while simultaneously 

objecting to Mr. McGill speaking on [Appellant’s] behalf. 

N.T., 2/6/12, at 39-40. Given defendant’s continued 

nonsensical and obstinate behavior, Mr. McGill was 

directed to handle the trial as primary counsel. N.T., 

2/6/12, at 40. Mr. McGill, having represented defendant 

for two years, was fully ready to proceed to trial. No relief 

is due.

1

 For example, [Appellant] stated, “Let the record 

reflect that the man sitting on the bench is not a 

judge.” N.T., 2/3/12, at 18.

Opinion, 12/23/2014, at 8-9. The trial court did not err when it found 

Appellant’s claim meritless. 

Appellant’s sixth claim asserts trial counsel was generally ineffective. 

Appellant, however, fails to provide any specific allegation to support this 

bald claim of ineffectiveness. This claim, therefore, fails. 

Appellant’s seventh claim asserts his due process rights “were violated 

when brought before a magistrate judge in a judicial proceeding as in 

Rothgery v. Gillespie County of Texas.”4 Appellant’s Brief at 5. The trial 

court found this claim frivolous, noting Appellant had counsel at the 

____________________________________________

4

In Rothgery, the Supreme Court of the United States reaffirmed that: “a 

criminal defendant’s initial appearance before a judicial officer, where he 

learns the charge against him and his liberty is subject to restriction, marks 

the start of adversary judicial proceedings that trigger attachment of the 

Sixth Amendment right to counsel.” Rothgery, 554 U.S. at 213.
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preliminary arraignment, where the public defender represented him. 

Opinion, 12/23/2014, at 9. This was not error.

Appellant’s eighth claim asserts the jury instructions were “unlawful 

compared to the judicial decision in Francis v. Franklin.”5 Appellant’s Brief 

at 5. In the PCRA proceedings, he claimed the burden of proof instructions 

were improper. Turner/Finley Letter at 5-6. We will review the appellate 

claim as challenging the burden of proof instruction. As with the illegal 

arrest claims, Appellant waived this claim by failing to raise it on direct 

appeal. See 42 Pa.C.S. § 9544(b). Further, the claim fails if viewed as an 

ineffective assistance of counsel claim for failure to object to the jury 

instructions. The trial court used the standard burden of proof jury 

instruction, and counsel cannot be ineffective for failing to object to the 

standard instruction. N.T., 2/9/2012, at 23-25; Commonwealth v. 

Kerrigan, 920 A.2d 190, 198 (Pa.Super.2007) (it is “presumed [the 

Pennsylvania Standard Criminal Jury Instructions] are an accurate statement 

of the law.”).

Appellant’s ninth claim maintains the prosecutor withdrew the notice of 

aggravating circumstances document, which removed the death penalty as a 

____________________________________________

5

In Francis, the Supreme Court of the United States found the defendant’s 

due process rights were violated “because a reasonable juror could have 

understood the challenged portions of the jury instruction . . . as creating a 

mandatory presumption that shifted to the defendant the burden of 

persuasion on the crucial element of intent, and because the charge read as 

a whole does not explain or cure the error.” 471 U.S. at 325.
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sentence, and claims, based on the withdrawal of this document, the trial 

court illegally sentenced him to life in prison. Appellant’s Brief at 5-6. He 

further argues he was illegally charged with a non-specific “criminal 

homicide” charge, and the trial court amended the charging instrument by 

separating the criminal homicide charge into “several specific charges.” Id. 

Pennsylvania Rule of Criminal Procedure 802 requires that the 

Commonwealth provide a defendant with notice of aggravating 

circumstances that it intends to submit at sentencing. Here, the 

Commonwealth submitted a notice of aggravating circumstances because it 

intended to seek the death penalty. The Commonwealth then withdrew this 

notice when it determined it would not seek the death penalty. N.T., 

10/3/2011, at 7-8. The trial court found that every charge of first-degree 

murder need not be a capital proceeding, the withdrawal of notice did not 

alter the homicide charge, and an information need not specify the degree of 

murder. Opinion, 12/23/2014; accord Commonwealth v. Chambers, 852 

A.2d 1197, 1199 (Pa.Super.2004); 18 Pa.C.S. §§ 1102(a), 2502. This was 

not error.

The PCRA court’s order dismissing Appellant’s PCRA petition is support 

by the record. Therefore, we affirm.

Order affirmed.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 10/5/2015