J-S80023-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA            :   IN THE SUPERIOR COURT OF
                                         :        PENNSYLVANIA
                                         :
              v.                         :
                                         :
                                         :
 TYREK D. SCALE,                         :
                                         :
                   Appellant             :   No. 1206 EDA 2018

                Appeal from the PCRA Order March 29, 2018
  In the Court of Common Pleas of Philadelphia County Criminal Division at
                     No(s): CP-51-CR-0001230-2013

BEFORE: BENDER, P.J.E., BOWES, J., and NICHOLS, J.

MEMORANDUM BY BOWES, J.:                              FILED JUNE 11, 2019

      Tyrek D. Scale appeals from the order that dismissed without a hearing

his petition filed pursuant to the Post Conviction Relief Act (“PCRA”).   We

affirm.

      Appellant, along with his co-conspirator, Deshawn Newman, was

convicted of first-degree murder, conspiracy, and other crimes in relation to

the shooting death of Wali Patrick. Relevant to the issues stated by Appellant

in this appeal, witnesses at trial included John Curry, Pamela Hayward, and

Khiry Hayward. The Haywards, relatives of the decedent, indicated that the

decedent had been in a fight with someone named Fees earlier in the day on

the date of the murder. Mr. Curry saw Appellant and Newman get out of a

white Suzuki with a handicap license plate and walk towards the decedent’s

home, heard four gunshots, and saw Appellant and Newman return to the car,

which sped away. Mr. Curry called 911, the police located the Suzuki, and a
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high-speed chase ensued, concluding when the Suzuki crashed, and Appellant

exited the vehicle and fled on foot after dropping what appeared to be a

firearm. Mr. Curry also went to the scene of the crash and identified Appellant,

Newman, and the Suzuki. DNA evidence obtained from the steering wheel of

the Suzuki matched Appellant’s DNA. Ballistic evidence showed that the two

firearms recovered from the scene were involved in the shooting of the

decedent.

       Following his convictions, Appellant was sentenced to life imprisonment

without the possibility of parole, this Court affirmed the judgment of sentence

on direct appeal, and our Supreme Court declined discretionary review.

Commonwealth v. Scale, 156 A.3d 353 (Pa.Super. 2016) (unpublished

memorandum), appeal denied, 165 A.3d 902 (Pa. 2017). Appellant filed a

timely pro se PCRA petition, counsel was appointed, and an amended petition

stating verbatim the same nine claims of ineffective assistance of counsel

raised in the pro se petition was filed. The PCRA court issued notice of its

intent to dismiss the petition without a hearing pursuant to Pa.R.Crim.P. 907.

In response, Appellant filed a counseled supplemental petition raising

additional claims. The PCRA court dismissed the petition, and filed an opinion

explaining its reasoning. This timely appeal followed.1

       Appellant presents the following questions for our review:


____________________________________________


1 The PCRA court did not direct Appellant to file a statement of errors
complained of on appeal, and none was filed.

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     A.   Whether counsel was ineffective for failing to move to
     suppress the prejudicial and suggestive out-of-court “one man”
     show-up and the unreliable in-court identification as the product
     of suggestion by police and due to the witness[’s] lack of
     opportunity to observe[.]

     B.   Whether counsel was ineffective for failing to object and
     move for a mistr[i]al where the trial court on multiple occasions
     engages in improper examination of witnesses/improperly
     answering or witnesses/and disparaging the defense including
     the:

           (1) failure to object and request a mistrial upon the
           introduction of a purported fight earlier in the day with an
           unknown person (a.k.a. Fees), and/or seeking missing
           witness/adverse inference instruction specifically relating to
           the unknown witness and/or the purported fight and the
           failure to move for a mistr[i]al when the Appellant was
           deprived the opportunity to confront witness Fees and/or
           the unknown fight participants;

           (2) failure to object to the prejudicial testimony and
           misleading characterization by the prosecutor relating to the
           Appellant and deceased living in same neighborhood, with
           an inference that said shooting was a neighborhood dispute;

           (3) failure to object to the insufficient colloquy and
           answer to said colloquy relating to the Appellant’s right to
           testify, where the Appellant’s response was “unresponsive”
           and he did not voluntarily waive his right to testify;

           (4) failure to object to the introduction of the hearsay
           testimony of the medical examiner relating to the toxicology
           report and results/conclusions, wherein depriving the
           Appellant of his right to confront under both the
           Pennsylvania and United States constitution.

     C.    Whether counsel was ineffective for failing to conduct an
     inappropriate [sic] investigation including the failure of counsel to
     present evidence/challenges to lack of gunshot residue on the
     Appellant’s clothing, demonstrating through forensics the lack of
     DNA and/or fingerprints, and challenging the ballistics report at
     second trial when the weapon was in such bad shape it could not
     be tested in first trial?

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Appellant’s brief at 5 (unnecessary capitalization omitted).

       We begin with the principles applicable to our review. “Our standard of

review regarding a PCRA court’s order is whether the determination of the

PCRA court is supported by the evidence of record and is free of legal error.

The PCRA court’s findings will not be disturbed unless there is no support for

the findings in the certified record.”   Commonwealth v. Garcia, 23 A.3d

1059, 1061 (Pa.Super. 2011).         Further, “[i]t is an appellant’s burden to

persuade    us   that   the   PCRA   court   erred   and   that   relief   is    due.”

Commonwealth v. Miner, 44 A.3d 684, 688 (Pa.Super. 2012).

       Appellant’s claims concern allegations that prior counsel rendered

ineffective assistance.   Counsel is presumed to be effective, and a PCRA

petitioner bears the burden of demonstrating otherwise. Commonwealth v.

Becker, 192 A.3d 106, 112 (Pa.Super. 2018). To do so, the petitioner must

plead and prove (1) the legal claim underlying his ineffectiveness claim has

arguable merit; (2) counsel’s chosen course lacked a reasonable basis

designed to effectuate the petitioner’s interests; and (3) prejudice resulted.

Id. The failure to establish any prong of the test is fatal to the claim. Id. at

114.

       It is well established that “[b]oilerplate allegations and bald assertions

of no reasonable basis and/or ensuing prejudice cannot satisfy a petitioner’s

burden to prove that counsel was ineffective.”              Commonwealth v.

Sandusky, 203 A.3d 1033, 1044 (Pa.Super. 2019) (cleaned up).                    Rather,

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concerning counsel’s lack of a reasonable basis, the petitioner must show that

“an alternative not chosen offered a potential for success substantially greater

than the course actually pursued.”     Commonwealth v. Koehler, 36 A.3d

121, 132 (Pa. 2012). In order to satisfy the prejudice prong, “the petitioner

must show that there is a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been different.

A reasonable probability is a probability sufficient to undermine confidence in

the outcome of the proceeding.” Commonwealth v. King, 57 A.3d 607, 613

(Pa. 2012).

      The ineffective-assistance-of-counsel claims pled in Appellant’s petition,

amended petition, and supplemental petition are presented therein in the

same manner as he has presented them to this Court.                As such, the

allegations, at best, contain unsubstantiated averments of underlying claims

of legal merit.    At no point did Appellant present the PCRA court with

developed allegations that counsel’s chosen course lacked a reasonable basis

or that the result of the proceeding would have been different had counsel

acted as Appellant now claims he should have. Indeed, as the PCRA court

noted in its opinion dismissing the petition, Appellant utterly failed “to support

his claims with case law or supporting allegations of material fact.”       PCRA

Court Opinion, 3/29/18, at 6. Even in his appellate brief, prejudice assertions,

when present, are boilerplate, and do not support a finding that the outcome




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of the proceedings at issue would have been different had counsel chosen a

different course.

      As such, the PCRA court properly dismissed Appellant’s petition. See,

e.g., Commonwealth v. Steele, 961 A.2d 786, 797 (Pa. 2008), abrogated

on other grounds sub nom, Pena–Rodriguez v. Colorado, 137 S. Ct. 855

(2017) (“[W]here Appellant has failed to set forth all three prongs of the

ineffectiveness test and meaningfully discuss them, he is not entitled to relief,

and we are constrained to find such claims waived for lack of development.”);

Commonwealth v. McDermitt, 66 A.3d 810, 813-14 (Pa.Super. 2013)

(affirming dismissal of claims of ineffective assistance of counsel where, inter

alia, allegations in petition did not explain specifics of underlying claim or

establish prejudice).

      Further, a mere cursory examination of Appellant’s purported claims of

arguable merit reveal them to be baseless. For example, he contends counsel

was ineffective in failing to file a motion to suppress Mr. Curry’s out-of-court

identification, as well as his subsequent in-court identification, when

suppression of the identifications was sought and litigated by counsel.

See Omnibus Pretrial Motion, at ¶¶ 7-10; PCRA Court Opinion, 3/29/18, at 7.

Likewise, the record reveals that a thorough colloquy of Appellant was

conducted before the defense rested and that Appellant clearly indicated that

he did not want to take the stand in his own defense. See N.T. Trial, 4/17/15,

at 12-14.


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      Hence, a review of the petition, in conjunction with the PCRA court’s

March 29, 2018 opinion accompanying its dismissal, reveals no abuse of

discretion on the part of the trial court. Appellant has failed to carry his burden

of convincing this Court that the PCRA court erred and that relief is due.

Miner, supra at 688. Therefore, we affirm the order dismissing Appellant’s

PCRA petition.

      Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/11/2019




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