J-S85018-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA


                       v.

KEITH DEVINE

                            Appellant                No. 3689 EDA 2015


                 Appeal from the PCRA Order December 1, 2015
              in the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0014318-2007


BEFORE: PANELLA, J., RANSOM, J., and MUSMANNO, J.

MEMORANDUM BY RANSOM, J.:                         FILED JANUARY 10, 2017

        Appellant, Keith Devine, pro se appeals from the December 1, 2015

order dismissing his petition filed under the Post Conviction Relief Act

(PCRA), 42 Pa.C.S. §§ 9541-9546. We affirm.

        On April 29, 2009, the Honorable Jeffrey P. Minehart, sitting as trial

court without a jury, found Appellant guilty of third degree murder, criminal

conspiracy, and two counts of aggravated assault.1        On June 2, 2010,2

Appellant received concurrent sentences of twelve and one-half to twenty-

five years of incarceration on the murder charge, ten to twenty years of

____________________________________________


1
    18 Pa.C.S. §§ 2502(c), 903(a)(1), and 2702(a), respectively.
2
  The PCRA court’s opinion misstates the date of Appellant’s sentencing
hearing. PCRA Court Opinion, 3/1/16, at 1.




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incarceration on the conspiracy, and two sentences of ten to twenty years of

incarceration for the aggravated assault charges.    See Notes of Testimony

(N.T.), 6/2/10, at 32-33. Appellant was given credit for time served. Id. at

34.

      Thereafter, Appellant filed a post sentence motion, which was denied.

On August 5, 2011, this Court affirmed Appellant’s judgement of sentence

and on May 1, 2012, our Supreme Court denied Appellant’s petition for

allowance of appeal. Commonwealth v. Devine, 26 A.3d 1139 (Pa. Super

2011), appeal denied, 42 A.3d 1059 (Pa. 2012).

      On June 6, 2012, Appellant timely filed a pro se petition seeking PCRA

relief. Counsel was appointed and subsequently submitted a no-merit letter

pursuant to Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988),

and a motion to withdraw. Appellant filed a series of pleadings in response

to PCRA counsel’s Finley letter. On October 26, 2015, the court issued a

Pa.R.Crim.P. 907 notice of its intent to dismiss Appellant’s petition without a

hearing, citing that Appellant’s counsel found his petition was without merit.

Appellant timely filed a response.       On December 1, 2015, the court

dismissed Appellant’s petition.

      Appellant timely appealed pro se and filed a court-ordered Pa.R.A.P.

1925(b) statement. The PCRA court issued a responsive opinion.

      Appellant raises the following issues for our review:

      1. THE POST CONVICTION [C]OURT ERRED WHEN IT DENIED
      THE [APPELLANT] RELIEF PURSUANT TO HIS AMENDED PCRA
      PETITION, BY ERRONEOUSLY RULING IT “UNTIMELY” PURSUANT

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     TO [§] 9545(B), AND BY WHOLESALE ADOPTION OF PCRA
     [C]OUNSEL’S “NO MERIT LETTER” IN LIEU OF FILING A POST
     CONVICTION RELIEF ACT OPINION, WHICH WAS A CLEAR
     ABDICATION OF THE [C]OURT’S DUTY; AND WHERE THE
     [APPELLANT] WELL PLED, AND WOULD HAVE BEEN ABLE TO
     PROVE, THAT HE WAS ENTITLED TO SUBSTANTIVE RELIEF IN
     THE FORM OF A NEW TRIAL AS THE RESULT OF:

     2. THE PETITIONER WAS DENIED HIS RIGHT TO EFFECTIVE
     ASSISTANCE OF COUNSEL UNDER BOTH ARTICLE I § 9 OF THE
     PENNSYLVANIA CONSTITUTION AND THE SIXTH AMENDMENT
     UNDER THE UNITED STATES CONSTITUTION FOR COUNSEL’S
     FAILURE TO OBJECT TO THE [ADMISSIBILITY] OF UNAVAILABLE
     WITNESS, KENDALL STERNS, [INADMISSIBLE] PRELIMINARY
     HEARING NOTES OF TESTIMONY INTRODUCED AT PETITIONER’S
     TRIAL.

     3. THE PETITIONER WAS DENIED HIS RIGHT TO EFFECTIVE
     ASSISTANCE OF COUNSEL UNDER BOTH ARTICLE I § 9 OF THE
     PENNSYLVANIA CONSTITUTION AND THE SIXTH AMENDMENT
     UNDER THE UNITED STATES CONSTITUTION WHEN TRIAL
     COUNSEL “STIPULATED” TO THE MEDICAL RECORDS OF THE
     GUN SHOT VICTIMS DEPRIVING PETITIONER OF HIS RIGHT TO
     CONFRONT WITNESSES UNDER THE COMPULSORY PROCESS.

     4. THE PETITIONER WAS DENIED HIS RIGHT TO EFFECTIVE
     ASSISTANCE OF COUNSEL UNDER BOTH ARTICLE I § 9 OF THE
     PENNSYLVANIA CONSTITUTION AND THE UNITED STATES
     CONSTITUTION FOR TRIAL COUNSEL’S FAILURE TO REQUEST A
     SEVERANCE MOTION UNDER THE EXCEPTION ENUMERATED IN
     PA.CRIM.P.[]579.

     5. THE PETITIONER WAS DENIED HIS RIGHT TO EFFECTIVE
     ASSISTANCE OF COUNSEL UNDER BOTH ARTICLE I § 9 OF THE
     PENNSYLVANIA CONSTITUTION AND THE SIXTH AMENDMENT
     UNDER THE UNITED STATES CONSTITUTION FOR TRIAL
     COUNSEL’S FAILURE TO OBJECT TO THE INTRODUCTION OF
     NON-TESTIFYING CO-DEFENDANT REDACTED STATEMENTS.

     6. THE PETITIONER WAS DENIED HIS RIGHT TO EFFECTIVE
     ASSISTANCE OF COUNSEL UNDER BOTH ARTICLE I § 9 OF THE
     PENNSYLVANIA CONSTITUTION AND THE SIXTH AMENDMENT
     UNDER THE UNITED STATES CONSTITUTION FOR TRIAL
     COUNSEL’S FAILURE TO OBJECT AND MOVE FOR A MISTRIAL,

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      WHEREIN THE COMMONWEALTH SOUGHT TO INTRODUCE
      IRRELEVANT TESTIMONIAL EVIDENCE REGARDING [A] PRIOR
      BAD ACT THAT ALSO CONSTITUTED A BRADY VIOLATION.

      7. PETITIONER WAS DENIED HIS RIGHT TO EFFECTIVE
      ASSISTANCE OF COUNSEL UNDER BOTH ARTICLE I § 9 OF THE
      PENNSYLVANIA CONSTITUTION AND THE SIXTH AMENDMENT
      UNDER THE UNITED STATES CONSTITUTION FOR COUNSEL’S
      FAILURE TO OBJECT AND SUPPRESS THE STATEMENT OF
      OFFICER    FLANNERY    COUPLED     WITH     COUNSEL’S
      INEFFECTIVENESS FOR FAILING TO OBJECT TO THE
      PROSECUTOR’S UNTIMELY DISCLOSURE OF SAID STATEMENT.

      8. THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT
      RENDERED A GUILTY VERDICT OF THE THIRD DEGREE IS
      DEFINED BY EXCLUSION[] AT TITLE 18[]PA.C.S.A. SECTION
      2502.

      9. PETITIONER WAS DENIED HIS SIXTH AMENDMENT RIGHT TO
      EFFECTIVE ASSISTANCE OF COUNSEL WHEN COUNSEL FAILED
      TO OBJECT TO THE SPEEDY TRIAL AND DUE PROCESS
      VIOLATION WHEN THERE WAS AN UNNECESSARY DELAY IN
      SENTENCE IN VIOLATION OF PA.R.CRIM.P.[]704.

Appellant’s Brief at vi-vii (some capitalization added for consistency).

      This Court’s standard of review regarding an order denying a petition

under the PCRA is whether the determination of the PCRA court is supported

by the evidence of record and is free of legal error. See Commonwealth v.

Ragan, 923 A.2d 1169, 1170 (Pa. 2007).          We afford the court’s factual

findings deference unless there is no support for them in the certified record.

Commonwealth v. Brown, 48 A.3d 1275, 1277 (Pa. Super. 2012) (citing

Commonwealth v. Anderson, 995 A.2d 1184, 1189 (Pa. Super. 2010)).




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       On appeal, Appellant raises nine issues for our review, the majority of

which allege ineffective assistance of trial counsel.3 We have reviewed the

certified record, the briefs of the parties, the applicable law, and the well-

reasoned opinion authored by the Honorable Jeffrey P. Minehart of the Court

of Common Pleas of Philadelphia County, filed March 1, 2016. We conclude

that Judge Minehart’s comprehensive opinion is dispositive of the issues

presented in this appeal. Accordingly, we adopt the opinion as our own for

purposes of further appellate review and affirm the order denying Appellant’s

PCRA petition on that basis.

       Commonwealth’s Application for Relief granted; Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/10/2017




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3
  On October 17, 2016, the Commonwealth of Pennsylvania untimely filed a
brief as well as an application for relief asking this Court to accept its brief as
timely filed.



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Circulated 12/19/2016 03:04 PM