J-S08018-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                         Appellee

                    v.

KENNETH THOMAS

                         Appellant                     No. 1579 EDA 2014


                 Appeal from the PCRA Order of May 2, 2014
            In the Court of Common Pleas of Philadelphia County
             Criminal Division at No.: CP-51-CR-0904651-2005


BEFORE: DONOHUE, J., WECHT, J., and JENKINS, J.

MEMORANDUM BY WECHT, J.:                          FILED FEBRUARY 17, 2015

      Kenneth Thomas appeals the May 2, 2014 order dismissing his petition

for relief pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.

§§ 9541-46. We affirm.

      In an opinion prepared during Thomas’ direct appeal, the court set

forth the relevant factual history of this case as follows:

      On June 16, 2005, at about 2:00 a.m., Philadelphia Police Officer
      Stephen Johncola received a radio call that directed him to go to
      the 500 block of East Allegheny Avenue in Philadelphia to
      investigate a report of a shooting. The officer, together with his
      partner [] immediately proceeded to that location where he
      observed a male, later identified as Keith Raney, lying on the
      sidewalk. Mr. Raney[,] who was conscious and had blood on his
      shirt, told Officer [Johncola] that he had been shot on E Street
      by a man named Kenny who lived on Hurley Street. Mr. Raney
      then lost consciousness. He was taken by rescue squad to a
      nearby hospital where he subsequently died.
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     An autopsy was performed on the body of Mr. Raney on June 17,
     2005. It revealed that Mr. Raney died as a result of having been
     shot multiple times.

     Just prior to the shooting, Mr. Robert Eury was walking to a
     Chinese takeout restaurant located near his home. As he was
     proceeding to the restaurant he heard a gunshot and then saw
     Mr. Raney[,] who had been running, fall to the ground.
     [Thomas] immediately drove up in a white car, got out of it, and
     approached Mr. Raney who was lying face down on the
     pavement. As [Thomas] was standing over Mr. Raney, Mr. Eury
     heard three or more gunshots.

     Following the shooting, Mr. Eury returned home. The police
     came to his residence shortly thereafter and took him to police
     headquarters.    Once there, Mr. Eury gave [the] police a
     statement and had him look at [] photographs. He identified a
     photograph depicting [Thomas].

     Mr. Shannon Shields also was present in the area where the
     shooting occurred. According to Mr. Shields, he was near the
     corner of Allegheny Avenue and Hartville Street when he heard
     gunfire and then saw Mr. Raney run by him. Mr. Raney was
     stumbling and had blood visible on his clothing.          Raney
     continued running and stumbling for approximately a half of a
     block at which time Mr. Shields saw a white car being driven by
     [Thomas] drive by, and make a U-turn. Mr. Shields then heard a
     gunshot and saw Mr. Raney stumble and fall.

     Raney, however, got up again and began stumbling up the
     street. Mr. Shields went home after witnessing this incident.

     On June 22, 2005, Mr. Shields was interviewed by [the] police.
     During the interview, he identified a photograph of [Thomas as
     the driver of] the white car [on] the night of the incident.

     An arrest warrant was issued for [Thomas] on June 25, 2005.
     He was arrested on June 27, 2005. After he was arrested,
     [Thomas] supplied the police with [] biographical information
     which included the fact that he owned a white 1990 Cutlass
     Supreme.

     [Thomas] testified in his own defense. He [testified] that he   was
     at home sleeping when Mr. Raney was shot and killed.             He
     indicated that he got home at midnight after visiting            his
     grandmother at the hospital. He further testified that Eury     and

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       Shields identified him because they were envious of him because
       he had a car.

Trial Court Opinion, 3/8/2008, at 2-3.

       Following a non-jury trial, Thomas was convicted of third-degree

murder, carrying a concealed firearm without a license, and possessing an

instrument of crime.1       On March 28, 2007, Thomas was sentenced to an

aggregate term of twenty to forty years’ incarceration. Thomas did not file

post-sentence motions, nor did he file a motion for reconsideration of his

sentence.     On direct appeal, we affirmed the judgment of sentence on

October 21, 2008. See Commonwealth v. Thomas, No. 1591 EDA 2007,

slip op. at 1, 3 (Pa. Super. Oct. 21, 2008).        Thomas did not file a petition

for allowance of appeal with the Pennsylvania Supreme Court.

       On February 11, 2009, Thomas filed a timely PCRA petition. Counsel

was appointed to represent Thomas.               On February 20, 2013, Thomas’

counsel filed an amended PCRA petition.             The PCRA court subsequently

issued a notice of its intent to dismiss Thomas’ petition without a hearing

pursuant to Pa.R.Crim.P. 907.          On May 2, 2014, the PCRA court formally

dismissed the petition.

       On May 20, 2014, Thomas filed a notice of appeal. On May 27, 2014,

the PCRA court directed Thomas to file a concise statement of errors

complained of on appeal pursuant to Pa.R.A.P. 1925(b). On May 29, 2014,

____________________________________________


1
       See 18 Pa.C.S. §§ 2502(c), 6106, and 907, respectively.



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Thomas timely filed a concise statement. On June 9, 2014, the PCRA court

issued an opinion pursuant to Pa.R.A.P. 1925(a).

      Thomas raises the following issues for our consideration:

      I.         The PCRA court erred by denying PCRA relief because
                 counsel failed to file a post-sentence motion and preserve
                 the issue that the verdict for third-degree murder was
                 against the weight of the evidence because the
                 Commonwealth could not prove that [Thomas] acted with
                 malice.

      II.        The PCRA court erred by denying PCRA relief because
                 counsel was ineffective for failing to file a post-sentence
                 motion for reconsideration of sentence and this issue was
                 waived for appellate review pursuant to Pa.R.A.P. 302(a).

      III.       The PCRA court erred by failing to grant an evidentiary
                 hearing even though there were material facts in dispute.

Brief for Thomas at 3.

      Our “standard of review for an order denying post-conviction relief is

limited     to    whether    the   record   supports     the    post-conviction        court’s

determination,         and   whether   that   decision     is   free    of     legal   error.”

Commonwealth v. Allen, 732 A.2d 582, 586 (Pa. 1999). The PCRA court’s

findings “will not be disturbed unless there is no support for the findings in

the certified record.”        Commonwealth v. Johnson, 945 A.2d 185, 188

(Pa. Super. 2008).

      Both        of   Thomas’     substantive    claims    implicate        trial   counsel’s

effectiveness. “[T]rial counsel is presumed to be effective and the burden to

show otherwise lies with the [Appellant].” Commonwealth v. Singley, 868




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A.2d 403, 411 (Pa. 2005) (citing Commonwealth v. Jones, 683 A.2d 1181,

1188 (Pa. 1996)). The test for ineffectiveness of counsel is as follows:

      [T]he appellant must overcome the presumption of competence
      by showing that: (1) his underlying claim is of arguable merit;
      (2) the particular course of conduct pursued by counsel did not
      have some reasonable basis designed to effectuate his interests;
      and (3) but for counsel’s ineffectiveness, there is a reasonable
      probability that the outcome of the challenged proceeding would
      have been different.

Commonwealth v. Bomar, 826 A.2d 831, 855 (Pa. 2003) (citing

Commonwealth v. Kimball, 724 A.2d 326, 333 (Pa. 1999)).                Failure to

satisfy any prong of the above test will result in the rejection of the

underlying claim.    Commonwealth v. Jones, 811 A.2d 994, 1002 (Pa.

2002).   If an appellant is unable to demonstrate prejudice, the other two

elements need not be addressed. Commonwealth v. Albrecht, 720 A.2d

693, 701 (Pa. 1998).      Additionally, a PCRA appellant must set forth and

individually discuss substantively each prong of the ineffective assistance of

counsel test.   See Commonwealth v. Jones, 876 A.2d 380, 386 (Pa.

2005); Commonwealth v. Wharton, 811 A.2d 978, 988 (Pa. 2002)

(“Claims of ineffective assistance of counsel are not self-proving. . . .”).

      In his brief, Thomas sets forth all of the applicable legal standards that

apply to claims of ineffective assistance of counsel, including the three-part

test set forth above. See Brief for Thomas at 12. However, Thomas does

not address each of the three prongs meaningfully in discussing either of his

two substantive claims. Consequently, both of the issues are waived. See



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Commonwealth v. Steele, 961 A.2d 786, 797 (Pa. 2008) (“[U]ndeveloped

claims, based on boilerplate allegations, cannot satisfy [the appellant’s]

burden of establishing ineffectiveness.”) (citing Jones, 876 A.2d at 386;

Commonwealth v. Bracey, 795 A.2d 935, 940 n.4 (Pa. 2001)).

      In his argument that counsel was ineffective for failing to file a post-

sentence motion raising a challenge to the weight of the evidence, Thomas

addresses at length the standards applicable to a weight challenge, and

argues that the verdict in fact was against the weight of the evidence.

Thomas also notes that he requested counsel to file the motion, and that

counsel failed to do so.   See Brief for Thomas at 15-21.       Thus, Thomas

adequately has addressed the arguable merit prong.          However, Thomas

makes only passing references to the prejudice prong, id. at 21-22, and he

presents no discussion whatsoever addressing the reasonable basis prong.

Consequently, we must deem this issue to be waived. See Steele, supra.

      Thomas also fails to execute the three-prong ineffectiveness test in his

argument that trial counsel was ineffective for failing to file a motion to

reconsider his sentence.   Once again, Thomas addresses the merits of his

underlying claim extensively, see Brief for Thomas at 23-27, but addresses

only two of the three prongs of the test. The entirety of his discussion of the

three prongs consists of the following statement: “Pursuant to the standard




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set forth in Strickland/Pierce,[2 Thomas] has met his burden to prove that

he has raised a meritorious claim and that he was prejudiced by his

counsels’ failure to file a post-sentence motion.”      Brief for Thomas at 27.

Such boilerplate assertions are insufficient to overcome the burden of

demonstrating that counsel was ineffective. See Steele, supra. Moreover,

Thomas does not address the reasonable basis prong at all. Again, we must

deem this issue to be waived in light of Thomas’ briefing failures.

       In his last issue, Thomas argues that the PCRA court erred by not

holding an evidentiary hearing.           See Brief for Thomas at 27-30.   As a

general matter, “a PCRA court may decline to hold a hearing on the petition

if the PCRA court determines that a petitioner’s claim is patently frivolous

and is without a trace of support in either the record or from other

evidence.” Commonwealth v. Jordan, 772 A.2d 1011, 1014 (Pa. Super.

2001).     Because Thomas has failed to demonstrate that his claims are

meritorious, the PCRA court did not err in declining to hold an evidentiary

hearing.

       Order affirmed.




____________________________________________


2
      Strickland v. Washington, 466 U.S. 668 (1984); Commonwealth
v. Pierce, 527 A.2d 973 (Pa. 1987).



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/17/2015




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