J-S14014-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA :             IN THE SUPERIOR COURT OF
                                 :                  PENNSYLVANIA
                                 :
              v.                 :
                                 :
                                 :
     TYRONE ABDULL A. HAYNES     :
                                 :
                   Appellant     :             No. 2114 EDA 2017
                                 :

                   Appeal from the PCRA Order June 20, 2017
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0007239-2011


BEFORE:      OTT, J., McLAUGHLIN, J., and RANSOM, J.

MEMORANDUM BY OTT, J.:                                     FILED MAY 31, 2018

        Tyrone Abdull A. Haynes appeals from the order entered June 20, 2017,

in the Philadelphia County Court of Common Pleas, denying his first petition

filed pursuant to the Post Conviction Relief Act (“PCRA”).1 Haynes seeks relief

from the judgment of sentence of an aggregate term of 13 to 26 years’

imprisonment, imposed on December 7, 2012, following his jury conviction of,

inter alia, rape and aggravated assault.2 On appeal, Haynes argues the PCRA

court erred when it dismissed his petition without first conducting an



____________________________________________


   Retired Senior Judge assigned to the Superior Court.

1   See 42 Pa.C.S. §§ 9541-9564.

2   See 18 Pa.C.S. §§ 3121 and 2702, respectively.
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evidentiary hearing on his claim asserting trial counsel’s ineffectiveness. For

the reasons below, we affirm.

        The   facts underlying      Haynes’s     arrest and conviction   are   aptly

summarized in the prior decision of this Court affirming Haynes’s judgment of

sentence on direct appeal. See Commonwealth v. Haynes, 104 A.3d 44

[3520 EDA 2012] (Pa. Super. 2014) (unpublished memorandum). Therefore,

we need not reiterate them in detail herein. In summary, during the early

morning hours of January 25, 2010, Haynes knocked on the door of a neighbor

who lived in his apartment complex to see if she wanted to “party” with him.

Id. (unpublished memorandum at *1). Although she declined, Haynes forced

his way into the apartment and hit her with a towel bar. See id. The victim

then slipped “in and out of consciousness” as Haynes raped her. Id. She

sustained numerous broken facial bones, as well as other injuries, in the

attack, which necessitated a week-long hospital stay. Moreover, testing of

sperm recovered from her vaginal and rectal area matched Haynes’s DNA.

See id. at *2.

        A jury convicted Haynes of several counts of rape and aggravated

assault, but found him not guilty of burglary and criminal trespass.3 As noted

above, on December 7, 2012, he was sentenced to an aggregate term of 13

to 26 years’ imprisonment. His judgment of sentence was affirmed on direct
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3   See 18 Pa.C.S. §§ 3502 and 3503, respectively.


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appeal, and the Pennsylvania Supreme Court denied his petition for allowance

of appeal. See Haynes, supra, appeal denied, 104 A.3d 524 (Pa. 2014).

       On March 11, 2015, Haynes filed a timely, pro se PCRA petition, followed

by an amended petition on September 11, 2015. Counsel was appointed on

January 27, 2016, and filed an amended petition on March 1, 2016.

Thereafter, on May 12, 2017, the PCRA court issued Haynes notice of its intent

to dismiss the petition without first conducting an evidentiary hearing

pursuant to Pa.R.Crim.P. 907. Receiving no response,4 the court dismissed

Haynes’s petition on June 20, 2017. This timely appeal followed.5, 6

       The sole issue Haynes raises on appeal asserts the PCRA court erred in

dismissing his petition without first conducting an evidentiary hearing on his

claim that trial counsel provided ineffective assistance when he advised

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4 Although the PCRA court indicates in its opinion that Haynes responded to
the Rule 907 notice on May 30, 2017, no such response is included in the
certified record or noted on the docket.

5 We note the PCRA court entered another order denying relief on July 3, 2017,
after Haynes had filed his notice of appeal. In its opinion, the PCRA court
explains that it had “orally dismissed the petition on the record on June 20,
2017 but did not issue its written order until July 3, 2017.” PCRA Court
Opinion, 8/31/2017, at 2 n.4. Nevertheless, we find Haynes’s appeal was
timely filed. Pursuant to Pa.R.A.P. 905(a)(5), “[a] notice of appeal filed after
the announcement of a determination but before the entry of an appealable
order shall be treated as filed after such entry and on the day thereof.”

6On July 12, 2017, the PCRA court ordered Haynes to file a concise statement
of errors complained of on appeal. Haynes complied with the court’s directive,
and filed a concise statement on July 24, 2017.


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Haynes to waive his right to testify on his own behalf. Haynes contends that

without his testimony, “which established his innocence, the only plausible

and reasonable explanation of what happened was that [he] assaulted and

raped the complainant.”     Haynes’s Brief at 6.    He further claims counsel’s

advice “informing [him] not to testify at trial [] was unreasonable and vitiated

his constitutional right to testify at his trial.” Id. at 7. Haynes insists he is

not required to prove he is entitled to relief before the court conducts a

hearing. See id. Rather, he “must only raise a material issue of fact that

would entitle him to relief if born out in an evidentiary hearing.” Id. Because

he did so, Haynes insists the PCRA court erred in failing to conduct a hearing.

      “In reviewing the denial of PCRA relief, we examine whether the PCRA

court’s determination is supported by the record and free of legal error.”

Commonwealth v. Mitchell, 141 A.3d 1277, 1283–1284 (Pa. 2016)

(internal punctuation and citation omitted).       Further, “a PCRA court may

decline to hold a hearing on the petition if petitioner’s claim is patently

frivolous or lacks support from either the record or other evidence.”

Commonwealth v. duPont, 860 A.2d 525, 530 (Pa. Super. 2004) (citation

omitted), appeal denied, 889 A.2d 87 (Pa. 2005), cert. denied, 547 U.S. 1129

(2006).

      In order to obtain relief based upon an allegation of the ineffective

assistance of counsel, a PCRA petitioner must demonstrate: “(1) the claim is

of arguable merit; (2) counsel had no reasonable strategic basis for his or her

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action or inaction; and (3) counsel's ineffectiveness prejudiced him.”

Commonwealth v. Michaud, 70 A.3d 862, 867 (Pa. Super. 2013).

Furthermore, when considering a claim focused upon the petitioner’s waiver

of his right to testify at trial, we must bear in mind:

      The decision of whether or not to testify on one’s own behalf is
      ultimately to be made by the defendant after full consultation with
      counsel. Commonwealth v. Uderra, 550 Pa. 389, 706 A.2d 334
      (1998); Commonwealth v. Bazabe, 404 Pa.Super. 408, 590
      A.2d 1298, alloc. denied, 528 Pa. 635, 598 A.2d 992
      (1991); Commonwealth v. Fowler, 362 Pa.Super. 81, 523 A.2d
      784, alloc. denied, 517 Pa. 598, 535 A.2d 1056 (1987). In order
      to sustain a claim that counsel was ineffective for failing to advise
      the appellant of his rights in this regard, the appellant must
      demonstrate either that counsel interfered with his right to testify,
      or that counsel gave specific advice so unreasonable as to
      vitiate a knowing and intelligent decision to testify on his
      own behalf. Id.

Commonwealth v. Nieves, 746 A.2d 1102, 1104 (Pa. 2000) (emphasis

supplied).

      Here, the sole basis for Haynes’s claim was set forth as follows in his

counseled, amended PCRA petition:

      [Haynes’s] defense counsel was ineffective at trial because
      counsel did not call [Haynes] as a witness in his own behalf at
      trial. The advice that counsel gave to [him] as to why he should
      not testify was so unreasonable that it vitiated [Haynes’s] knowing
      and intelligent decision not to testify on his own behalf.
      [Haynes’s] statement as to what he would have testified to is [set
      forth in his] pro se PCRA petition[.] This statement provides a
      complete defense to the offenses of which [Haynes] was
      convicted. [Haynes] is entitled to a new trial because of trial
      defense counsel’s ineffectiveness [.]

Amended Petition Under Post-Conviction Relief Act, 3/1/2016, at ¶ 4a.


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      Notably absent from the claim set forth above, and in Haynes’s brief on

appeal, is any details regarding the “unreasonable” advice counsel purportedly

provided to Haynes. It is for this reason the PCRA court dismissed Haynes’s

petition without first conducting a hearing.

      First, the court cited to the on-the-record colloquy, during which Haynes

“made a knowing and intelligent waiver of his right to testify.” PCRA Court

Opinion, 8/31/2017, at 3, citing N.T., 8/23/2012, at 58-60. Second, the PCRA

court highlighted the fact that Haynes “failed to allege and offer to prove []

what advice counsel gave him and how it was unreasonable.” Id. The court

summarized: “This bald allegation of ineffectiveness did not entitle [Haynes]

to an evidentiary hearing on his claim.” Id. We agree.

      While Haynes correctly states a petitioner need not prove his

entitlement to relief in order to obtain an evidentiary hearing, he

acknowledges that he must, nonetheless, “raise a material issue of fact that

would entitle him to relief if born out in an evidentiary hearing.” Haynes’s

Brief at 7. His bald claim that counsel provided unreasonable advice is simply

insufficient. This Court’s ruling in Commonwealth v. Bazabe, 590 A.2d 1298

(Pa. Super 1991), appeal denied, 598 A.2d 992 (Pa. 1991), is equally

applicable here:

      While this [claim, as set forth in the PCRA petition,] does contain
      a verbatim statement of the applicable law [], it is totally devoid
      of any allegations of specific statements of trial counsel which
      might have misled [the petitioner]. Where the issue is whether


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       an evidentiary hearing must be held, it is settled law that mere
       boilerplate allegations will not suffice to require a hearing.

Id. at 1302.

       Accordingly, we affirm the order of the PCRA court denying relief.7

       Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/31/18




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7It merits mention the facts of this case do not present a classic “he said/she
said” claim of a potentially consensual sexual encounter. Rather, the victim
herein, suffered multiple, significant injuries to her face that left her in the
hospital for a week. See Haynes, supra, 104 A.3d 44 [3520 EDA 2012]
(unpublished memorandum at *2).

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