J-A22025-19


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,           :     IN THE SUPERIOR COURT OF
                                        :           PENNSYLVANIA
                 Appellee               :
                                        :
         v.                             :
                                        :
NAEEM J. GRAY,                          :
                                        :
                 Appellant              :     No. 2591 EDA 2018

                 Appeal from the Order Entered August 21, 2018
              in the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0004210-2013

BEFORE: MURRAY, J., STRASSBURGER, J.* and PELLEGRINI, J.*

MEMORANDUM BY STRASSBURGER, J.:               FILED SEPTEMBER 06, 2019

     Naeem J. Gray (Appellant) appeals from the August 21, 2018 order

dismissing his petition filed pursuant to the Post Conviction Relief Act

(PCRA), 42 Pa.C.S. §§ 9541-9546. Upon review, we affirm.

      The PCRA court provided the following procedural history.1

           On March 2, 2013, [Appellant] was arrested and charged
     with robbery, burglary, criminal conspiracy to commit robbery
     and burglary, two violations of the Uniform Firearms Act
     (VUFA)[], possession of an instrument of crime (PIC), and
     knowing and intentional possession of a controlled substance[].
     On December 12, 2013, a jury found [Appellant] guilty of all
     charges.    On April 11, 2014, th[e trial] court sentenced
     [Appellant] to an aggregate term of 12 to 24 years [of] state
     incarceration plus 5 years [of] reporting probation. On April 21,
     2014, [Appellant] filed a motion for reconsideration, which was


1A prior panel of this Court detailed the underlying facts of this case. See
Commonwealth v. Gray, 145 A.3d 790 (Pa. Super. 2016) (unpublished
memorandum at 1-4). Given our disposition, we need not recount them
here.



* Retired Senior Judge assigned to the Superior Court.
J-A22025-19


      denied by operation of law on August 20, 2014. On September
      22, 2014, [Appellant] filed a notice of appeal to the Superior
      Court.    On April 25, 2016, the Superior Court affirmed
      [Appellant’s] judgment of sentence.

             On December 30, 2016, [Appellant] filed a pro se PCRA
      petition, claiming ineffective assistance of counsel for failure to
      view the surveillance video with him in advance of trial so that
      he could have produced an alibi witness. On April 18, 2017,
      John Cotter, Esquire[,] was appointed as PCRA counsel. On
      September 15, 2017, [Attorney] Cotter filed an amended
      petition, claiming that trial counsel was ineffective for failing to
      call [Appellant] as a witness at trial and failing to call an alibi
      witness.

PCRA Court Opinion, 11/26/2018, at 1-2 (unnecessary capitalization

omitted).

      Relevant to this appeal, Appellant claimed in his amended PCRA

petition that he was entitled to relief due to counsel’s unreasonable advice

not to testify. Amended PCRA Petition, 9/15/2017, at ¶ 4(a) (“The advice

that counsel gave to [Appellant] as to why he should not testify was so

unreasonable that it vitiated [Appellant’s] knowing and intelligent decision

not to testify on his own.”).

      On July 17, 2018, the PCRA court issued notice of its intent to dismiss

Appellant’s PCRA petition without a hearing pursuant to Pa.R.Crim.P. 907.

Appellant did not file a response, and on August 21, 2018, the PCRA court

dismissed Appellant’s PCRA petition as meritless.




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J-A22025-19

      This timely-filed notice of appeal followed.2       On appeal, Appellant

claims the PCRA court erred in denying without a hearing his claim that trial

counsel was ineffective for “vitiating [Appellant’s c]onstitutional right to

testify in his own defense at trial[.]” Appellant’s Brief at 2.

      We begin with our standard of review.

             This Court analyzes PCRA appeals in the light most
      favorable to the prevailing party at the PCRA level. Our review
      is limited to the findings of the PCRA court and the evidence of
      record and we do not disturb a PCRA court’s ruling if it is
      supported by evidence of record and is free of legal error.
      Similarly, we grant great deference to the factual findings of the
      PCRA court and will not disturb those findings unless they have
      no support in the record. However, we afford no such deference
      to its legal conclusions. Where the petitioner raises questions of
      law, our standard of review is de novo and our scope of review is
      plenary. Finally, we may affirm a PCRA court’s decision on any
      grounds if the record supports it.

Commonwealth v. Benner, 147 A.3d 915, 919 (Pa. Super. 2016) (quoting

Commonwealth v. Perry, 128 A.3d 1285, 1289 (Pa. Super. 2015)).

    “To establish ineffectiveness of counsel, a PCRA petitioner must show

the underlying claim has arguable merit, counsel’s actions lacked any

reasonable    basis,   and   counsel’s    actions   prejudiced    the   petitioner.”

Commonwealth v. Jones, 71 A.3d 1061, 1063 (Pa. Super. 2013) (citations

omitted). “A failure to satisfy any prong of the ineffectiveness test requires




2 The PCRA court did not order Appellant to file a Pa.R.A.P. 1925(b)
statement, and none was filed. The PCRA court filed a Pa.R.A.P. 1925(a)
opinion.

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rejection of the claim of ineffectiveness.” Commonwealth v. Daniels, 963

A.2d 409, 419 (Pa. 2009).

     Claims alleging ineffectiveness of counsel premised on
     allegations that trial counsel’s actions interfered with an
     accused’s right to testify require a defendant to prove 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.

Commonwealth v. Miller, 987 A.2d 638, 660 (Pa. 2009) (citation and

quotation marks omitted).       However, “[a] defendant will not be afforded

relief where he voluntarily waives the right to take the stand during a

colloquy with the court, but later claims that he was prompted by counsel to

lie or give certain answers.”    Commonwealth v. Lawson, 762 A.2d 753,

756 (Pa. Super. 2000).

     Finally, with respect to PCRA evidentiary hearings,

     [i]t is well settled that “[t]here is no absolute right to an
     evidentiary hearing on a PCRA petition, and if the PCRA court
     can determine from the record that no genuine issues of material
     fact exist, then a hearing is not necessary.” Commonwealth v.
     Jones, 942 A.2d 903, 906 (Pa. Super. 2008). “[T]o obtain
     reversal of a PCRA court’s decision to dismiss a petition without
     a hearing, an appellant must show that he raised a genuine issue
     of fact which, if resolved in his favor, would have entitled him to
     relief, or that the court otherwise abused its discretion in
     denying a hearing.” Commonwealth v. Hanible, [] 30 A.3d
     426, 452 ([Pa. ]2011).

Commonwealth v. Maddrey, 205 A.3d 323, 328 (Pa. Super. 2019).

     Here, the PCRA court dismissed Appellant’s ineffective-assistance-of-

counsel claim as undeveloped and unsupported by the facts.       PCRA Court

Opinion, 11/26/2018, at 4-5. Additionally, the PCRA court found this claim

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J-A22025-19

also failed because Appellant knowingly, intelligently, and voluntarily waived

his right to testify during his jury trial. Id. at 6-7.

      Upon review, we find that the PCRA court’s findings are supported by

the record and are free of legal error. Critically, Appellant never elucidates

counsel’s allegedly unreasonable advice or how it vitiated Appellant’s waiver

of his right to testify. See Miller, supra. As such, the PCRA court did not

err in dismissing Appellant’s PCRA petition without a hearing as Appellant

failed to present any issue of material fact in support of his bald claim of

ineffective assistance of counsel. See Maddrey, supra. Moreover, the trial

court’s colloquy demonstrates that Appellant knowingly, intelligently, and

voluntarily waived his right to testify.      See N.T., 12/12/2013, at 125-27

(Appellant affirming that he spoke with counsel about the advantages and

disadvantages     of   testifying,   that   he   was      satisfied   with   counsel’s

representation, and that he was making the decision not to testify of his own

free will). Accordingly, the PCRA court did not err in dismissing Appellant’s

PCRA petition.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/6/19
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