Opinion
J-S13026-17 No. 177 EDA 2016
04-27-2017
COMMONWEALTH OF PENNSYLVANIA Appellee v. VICTOR CHRISTMAS Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the PCRA Order December 9, 2015
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0013153-2009 BEFORE: BENDER, P.J.E., LAZARUS, J., and FITZGERALD, J. MEMORANDUM BY LAZARUS, J.:
Former Justice specially assigned to the Superior Court.
Victor Christmas appeals from the order, entered in the Court of Common Pleas of Philadelphia County, dismissing, without a hearing, his petition filed under the Post-Conviction Relief Act ("PCRA"). 42 Pa.C.S.A. §§ 9541-46. We affirm.
Following a waiver trial on May 24, 2009, the Honorable Charles J. Cunningham found Christmas guilty of numerous charges of violation of the Uniform Firearm Act, namely, possession of a firearm prohibited, carrying a firearm without a license, and carrying firearms on public streets or public property in Philadelphia, as well as possession of an instrument of crime, terroristic threats, and simple assault.
18 Pa.C.S.A. § 6105(a)(2)(i).
18 Pa.C.S.A. § 6106(a)(1).
18 Pa.C.S.A. § 6108.
18 Pa.C.S.A. § 907(a).
18 Pa.C.S.A. § 2706(a)(1).
18 Pa.C.S.A. § 2701(a).
On September 24, 2010, the court sentenced Christmas to an aggregate term of imprisonment of 11 years to 25 years. On October 15, 2010, the trial court denied Christmas' motion for reconsideration of sentence after hearing argument from his trial attorney, Daniel Connor, Esquire, who was subsequently permitted to withdraw his appearance at the conclusion of the hearing. On August 15, 2011, a panel of this Court affirmed the trial court's judgment of sentence. Commonwealth v. Christmas , 32 A.3d 833 (Pa. Super. 2010) (unpublished memorandum). On December 29, 2011, the Supreme Court of Pennsylvania denied allowance of appeal. Commonwealth v. Christmas , 34 A.3d 825 (Pa. 2011) (table).
Christmas then filed a pro se PCRA petition on May 23, 2013. The PCRA court appointed counsel, who then filed an amended petition on February 8, 2015, claiming that trial counsel was ineffective for failing to file a post-verdict motion challenging the weight of the evidence. On October 22, 2015, the PCRA court issued notice of its intent to dismiss Christmas' petition, and, after no response was filed, formally dismissed his petition on December 9, 2015.
Christmas, through his current counsel, Peter A. Levin, Esquire, raises the following issues on appeal:
We note that the amended PCRA petition does not properly address a layered ineffectiveness claim. See Commonwealth v. Paddy , 15 A.3d 431 (Pa. 2011). However, Christmas' pro se petition explicitly laid out a layered ineffectiveness claim. Motion for Post-Conviction Collateral Relief, 5/25/2012. We therefore find that the issue was not waived, but the underlying claim of ineffectiveness is still without merit. Paddy , supra at 443 ("If the petitioner cannot prove the underlying claim of trial counsel ineffectiveness, then petitioner's derivative claim of appellate counsel ineffectiveness of necessity must fail, and it is not necessary for the court to address the other two prongs of the Pierce test as applied to appellate counsel."). --------
I. Whether the court erred in denying [Christmas'] PCRA petition without an evidentiary hearing on the issues raised in the amended PCRA petition regarding trial counsel's ineffectiveness.Appellant's Brief, at 8.
II. Whether the court erred in not granting relief on the PCRA petition alleging counsel was ineffective [for failing to file a motion that the verdict was against the weight of the evidence].
After careful review of Christmas' arguments, the record, and relevant case law, we conclude that the Honorable Charles J. Cunningham properly disposed of Christmas' claims. See PCRA Opinion, 5/19/2016. Accordingly, we affirm the order dismissing Christmas' PCRA petition, and we direct the parties to attach a copy of Judge Cunningham's opinion in the event of further proceedings.
Order affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 4/27/2017
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