J-S19029-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

JAFA LEROY MCALLISTER

Appellant No. 2419 EDA 2014

Appeal from the PCRA Order August 5, 2014

In the Court of Common Pleas of Monroe County

Criminal Division at No(s): CP-45-CR-0000368-2011

BEFORE: STABILE, J., JENKINS, J., and MUSMANNO, J.

MEMORANDUM BY JENKINS, J.: FILED APRIL 28, 2015

Jafa McAllister appeals from an order denying his petition for relief 

under the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. § 9541 et seq. We 

affirm.

A jury found McAllister guilty of persons not to possess firearms1and 

possession of a firearm with an altered manufacturer number.2 These 

charges were the result of a traffic stop in which McAllister was a passenger 

in a motor vehicle owned and operated by his sister. During the stop she 

gave permission for the search of her car. Police officers recovered a 

shopping bag from the trunk which contained McAllister’s clothing and the 

____________________________________________

1 18 Pa.C.S. § 6105.

2 18 Pa.C.S. § 6110.2.
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weapon which formed the basis for the firearm charges. The trial court 

sentenced McAllister to an aggregate term of 61⁄2-13 years’ imprisonment. 

He did not file a direct appeal. 

McAllister filed a timely PCRA petition alleging several claims of 

ineffective assistance of counsel. Following an evidentiary hearing, the PCRA 

court denied his petition. McAllister filed a timely appeal, and both McAllister 

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

McAllister raises three issues in this appeal:

A. DID THE PCRA COURT ERR AND ABUSE ITS 

DISCRETION BY NOT ALLOWING THE APPELLANT TO 

FILE A NUNC PRO TUNC APPEAL TO THE 

PENNSYLVANIA SUPERIOR COURT WHERE THE 

RECORD DEMONSTRATED THAT THE APPELLANT 

WAS DENIED HIS RIGHT TO APPELLATE REVIEW AS 

A RESULT OF COUNSEL NOT FILING AN APPEAL AS 

APPELLANT HAD REQUESTED? 

B. DID THE PCRA COURT ERR AND ABUSE ITS 

DISCRETION BY NOT ALLOWING THE APPELLANT TO 

FILE A NUNC PRO TUNC APPEAL TO THE 

PENNSYLVANIA SUPERIOR COURT WHERE THE 

RECORD DEMONSTRATED THAT THE APPELLANT 

WAS DENIED HIS RIGHT TO APPELLATE REVIEW AS 

A RESULT OF COUNSEL NOT PURSING AN APPEAL 

DESPITE SEVERAL IMPORTANT QUESTIONS RIPE 

FOR SUCH REVIEW?

C. DID THE PCRA COURT ERR AND ABUSE ITS 

DISCRETION BY FAILING TO FIND TRIAL COUNSEL 

INEFFECTIVE AND ORDERING A NEW TRIAL BASED 

ON EVIDENCE THAT TRIAL COUNSEL FAILED TO FILE 

SUPPRESSION MOTIONS DESPITE CLEARLY 

APPROPRIATE REASONS TO DO SO, FAILED TO 

PROVIDE THE APPELLANT WITH COPIES OF THE 

DISCOVERY USED AGAINST HIM AND FAILED TO 
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SIMILARLY ACT TO THE BEST INTERESTS OF 

APPELLANT AT TRIAL?

Brief for Appellant, p. 4.

This Court reviews the PCRA court’s findings of fact to determine 

whether they are supported by the record, and reviews its conclusions of law 

to determine whether they are free from legal error. Commonwealth v. 

Charleston, 94 A.3d 1012, 1019 (Pa.Super.2014). Our scope of review is

limited to the findings of the PCRA court and the evidence of record, viewed 

in the light most favorable to the prevailing party at the trial level. Id. 

To obtain relief on a claim of ineffective assistance of counsel, the 

PCRA petitioner must satisfy the performance and prejudice test set forth in 

Strickland v. Washington, 466 U.S. 668, 687 (1984). Specifically, the 

petitioner must establish that: (1) the underlying claim has arguable merit; 

(2) no reasonable basis existed for counsel’s actions or failure to act; and 

(3) the petitioner suffered prejudice as a result of counsel’s error, with 

prejudice measured by whether there is a reasonable probability that the 

result of the proceeding would have been different. Commonwealth v. 

Pierce, 527 A.2d 973, 975 (Pa.1987). Counsel is presumed effective. 

Charleston, 94 A.3d at 1019. A court need not analyze the elements of an 

ineffectiveness claim in any particular order of priority; if a claim fails any 

necessary element of the Strickland test, the court may proceed to that 

element first. Commonwealth v. Albrecht, 720 A.2d 693, 701 (Pa.1998). 
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Additionally, counsel cannot be deemed ineffective for failing to raise a 

meritless claim. Commonwealth v. Jones, 912 A.2d 268, 278 (Pa.2006).

We review McAllister’s first and second arguments together, because 

they raise essentially the same issue, viz., trial counsel was ineffective for 

disregarding McAllister’s request to file a direct appeal. McAllister claims 

that trial counsel’s failure to file a direct appeal prejudiced him, because 

counsel could have raised a meritorious issue on direct appeal concerning a 

bag that the Commonwealth introduced into evidence during trial. McAllister 

argues:

This bag was not the actual one found in the car in 

which [McAllister] was driving, and which allegedly 

contained the alleged weapon for which [McAllister] 

was convicted. While the trial court did instruct the 

jury regarding this, the presence of such a bag, 

which [McAllister] alleges was much larger and 

bulkier than the actual bag, was arguably prejudicial 

as it gave the jury an inaccurate visual impression of 

the evidence. Thus, the jury could readily have 

drawn conclusions about the scene based on a piece 

of visual evidence that was not, in actuality, a part of 

the scene.

Brief For Appellant, pp. 9-10. For several reasons, we disagree with 

McAllister.

Counsel has a constitutional duty to adequately consult with the 

defendant as to the advantages and disadvantages of an appeal where there 

is reason to believe either (1) that a rational defendant would want to appeal 

(for example, because there are non-frivolous grounds for appeal), or (2) 

that this particular defendant reasonably demonstrated to counsel that he 
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was interested in appealing. Commonwealth v. Bath, 907 A.2d 619, 623 

(Pa.Super.2006). Where counsel adequately consults with the defendant 

about an appeal, there is no prejudice and thus no ineffective assistance. 

Commonwealth v. Touw, 781 A.2d 1250, 1254-55 (Pa.Super.2001). For 

purposes of this test, counsel actually “consults” when he “advis[es] the 

defendant about the advantages and disadvantages of taking an appeal, and 

mak[es] a reasonable effort to discover the defendant’s wishes.” Id. at 

1254 (citing Roe v. Flores-Ortega, 528 U.S. 470, 478 (2000)).

Here, the PCRA court concluded, and the record confirms, that trial 

counsel discussed whether to file a direct appeal with McAllister, and that 

McAllister agreed not to file an appeal. N.T. 7/21/14, p. 13 (testimony of 

trial counsel). Trial counsel convinced McAllister that the bag issue had no 

merit and was not worth appealing. N.T., 7/21/14, p. 12 (trial counsel). 

The PCRA court succinctly explained why the bag issue lacked merit:

[McAllister’s] brief ... merely suggests that a piece of 

demonstrative evidence used at trial, i.e., a bag, 

might have been confused with a piece of real 

physical evidence connected to [his] possession of 

the firearms. However, [McAllister] readily 

acknowledges that the trial court issued a cautionary 

instruction to the jury explaining how this was 

merely demonstrative evidence and not the actual 

bag. [McAllister] also fails to explain how this would 

have made any difference.

Memorandum In Support Of Order Denying PCRA Petition (“Memorandum”), 

p. 7. For these reasons, the PCRA court acted within its discretion in 
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rejecting McAllister’s claim that trial counsel was ineffective for failing to file 

a direct appeal.

In his third and final issue, McAllister contends that trial counsel was 

ineffective for failing to file a motion to suppress, failing to provide discovery 

to him and failing to act in his best interests during trial. The PCRA court 

concluded, and the record confirms, that McAllister failed to substantiate 

these claims during the PCRA evidentiary hearing. 

Without specifying any particular discovery item, McCallister testified 

that he would have felt “comfortable” had he received pretrial discovery and 

“would have had more ... knowledge and options” about how to proceed. 

N.T., 7/21, 14, p. 25. We agree with the PCRA court that McCallister failed 

to demonstrate prejudice due to trial counsel’s failure to provide him with 

discovery:

At most, [McAllister] testified at the hearing that a 

review of his discovery would have made ‘him better 

informed, allowed him to better judge whether to 

plead guilty and would have potentially allowed him 

to raise new objections. [McAllister] did not specify 

what those objections might be or their potential 

effect on the verdict. [McAllister]’s brief merely 

offers generalized propositions on how favorable it is 

to review discovery with one’s client prior to trial. 

While that may be so, [McAllister] is still required to 

show a prejudicial violation, not opine about best 

pre-trial practices. It is simply impossible for 

[McAllister] to meet his burden of proof in the 

complete absence of a factual basis.

Memorandum, p. 4. 
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Similarly, McCallister failed to demonstrate what motion to suppress 

he would have filed or how it would have assisted his defense. The PCRA 

court correctly observed: “The evidence for an underlying suppression claim 

was not presented at the evidentiary hearing or attached to [McAllister’s] 

PCRA Petition or brief. Neither has [he] even indicated the grounds for 

granting suppression in any of his filings.” Thus, the PCRA court correctly 

rejected this claim due to lack of arguable merit.

Finally, McAllister’s boilerplate claim that counsel failed to act in his 

best interests during trial is waived due his failure to develop this argument 

during PCRA proceedings or in this appeal. Commonwealth v. Rainey, 

928 A.2d 215, 245 (Pa.2007) (“boilerplate, undeveloped argument 

respecting the ineffectiveness of all prior counsel is insufficient to establish 

an entitlement to post-conviction relief”).

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 4/28/2015