J-S21037-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                         IN THE SUPERIOR COURT OF
                                                            PENNSYLVANIA
                            Appellee

                       v.

BRUCE LEE HAWK, JR.,

                            Appellant                     No. 2780 EDA 2014


                   Appeal from the PCRA Order July 29, 2014
                in the Court of Common Pleas of Carbon County
               Criminal Division at No.: CP-13-CR-0000300-2010


BEFORE: BOWES, J., JENKINS, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                                     FILED MAY 05, 2015

        Appellant, Bruce Lee Hawk, Jr., appeals from the order of July 29,

2014, which denied, following a hearing, his first petition brought under the

Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. On appeal,

Appellant claims that he received ineffective assistance of counsel, the

evidence was insufficient to sustain his conviction, and his conviction was

against the weight of the evidence.            For the reasons discussed below, we

affirm the denial of the PCRA petition.

        We take the underlying facts in this matter from this Court’s May 29,

2013 memorandum on direct appeal.


____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
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           . . . [The victim in this case stated that] on May 6, 2010[,]
     at approximately 10:00 a.m.[,] he was operating his maroon
     Volvo station wagon on Delaware Avenue in Palmerton,
     Pennsylvania when [Appellant], operating a light blue pickup
     truck in reverse gear, nearly struck [the victim’s] automobile.
     [Appellant] then accelerated his vehicle to drive alongside of [the
     victim], such that [the victim’s] vehicle was “pinned to the curb,”
     while [Appellant] was screaming at [the victim] and threatening
     physical harm to his person.

           [Appellant] then followed [the victim] in his automobile as
     [the victim] proceeded onto Pennsylvania Route 248, driving
     approximately two to three feet behind the bumper of [the
     victim’s] vehicle. When [the victim] pulled his vehicle to the side
     of the road to allow him to pass, [Appellant] stopped his vehicle
     behind [the victim’s] vehicle and approached it, whereupon [the
     victim] advised [Appellant] to calm down and drive away. [The
     victim] saw [Appellant] return to and remove something from
     the back of his truck, then approach the front driver’s side of
     [the victim’s] vehicle, still screaming and making threats.
     [Appellant] then struck the front driver’s side window with a
     metal object, which [the victim] believed to be a pipe, shattering
     the window, striking [the victim] in the arm and possibly the
     head and spraying glass fragments onto his arm and face. [The
     victim] then observed [Appellant] returning to his truck and
     driving away onto the Bowmanstown exit ramp, making a left-
     hand turn onto Route 895.

                                    *     *   *

            Pennsylvania State Trooper Anthony Doblovasky testified
     [that] on May 6, 2010, he was dispatched to the scene of the
     subject incident on the north shoulder of westbound Route 248.
     When he arrived at the scene, he observed [the victim] standing
     next to his vehicle, pulling glass shards off of his person;
     [Trooper Doblovasky] also observed that [the victim] had
     sustained injuries and that his vehicle was missing a window.
     Upon learning that an individual believed to be the man in the
     blue and white truck who had committed the assault had been
     apprehended, Trooper Doblovasky led [the victim] to the
     location where that individual was being held, whereupon [the
     victim] identified [Appellant] as the man who had committed the
     assault. [The victim] also identified the blue and white truck as
     the vehicle which [Appellant] had been operating.

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(Commonwealth v. Hawk, No. 2295 EDA 2012, unpublished memorandum

at 1-2 (Pa. Super. filed May 29, 2013) (citing Trial Court Opinion, 10/29/12,

at 7-8, 10) (record citations omitted)).

        On May 10, 2012, a jury convicted Appellant of one count each of

aggravated assault1 and simple assault.2 On July 24, 2012, the trial court

sentenced Appellant to a term of incarceration of not less than twenty-three

months nor more than sixty months. Appellant filed a timely direct appeal,

and this Court affirmed the judgment of sentence on May 29, 2013. (See

Hawk, supra at 1).            Appellant did not seek leave to appeal to the

Pennsylvania Supreme Court.

        On September 9, 2013, Appellant, acting pro se, filed a timely PCRA

petition.   The PCRA court appointed counsel on September 26, 2013.              On

November 1, 2013, counsel filed an amended PCRA petition.                The PCRA

court held an evidentiary hearing on April 17, 2014. At the hearing, the only

witness was Appellant’s trial counsel, Eric Dowdle, Esquire.3 (See N.T. PCRA

Hearing, 4/17/14, at 3-15).          In pertinent part, trial counsel testified that

____________________________________________


1
    18 Pa.C.S.A. § 2702(a)(4).
2
    18 Pa.C.S.A. § 2701(a)(2).
3
  Attorney Dowdle also represented Appellant on direct appeal. (See N.T.
PCRA Hearing, 4/17/14, at 12). For the sake of convenience, we will refer to
Attorney Dowdle as trial counsel throughout this memorandum.




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Appellant did not request that he file any post-sentence motions challenging

the sufficiency and/or the weight of the evidence, and that he did not believe

any such motions were meritorious. (See id. at 11-14). On July 29, 2014,

the PCRA court denied Appellant’s PCRA petition.

       On August 27, 2014, despite being represented by counsel, Appellant

filed a pro se notice of appeal.4              On August 29, 2014, the PCRA court

directed Appellant to file a concise statement of errors complained of on

appeal.    See Pa.R.A.P. 1925(b).         Thereafter, Appellant filed a pro se Rule

1925(b) statement.

       On September 17, 2014, PCRA counsel filed a motion to withdraw.

However, Appellant and PCRA counsel ultimately reached an agreement for

PCRA counsel to continue to represent him; therefore, the PCRA court

ultimately denied the motion as moot. On October 23, 2014, the PCRA court

filed an opinion. See Pa.R.A.P. 1925(a).

       On appeal, Appellant raises the following questions for our review:

       A. Whether the Commonwealth’s evidence was insufficient to
          sustain the jury’s conviction of [Appellant?]

____________________________________________


4
    It settled under Pennsylvania law that there is no right to hybrid
representation either at trial or on the appellate level.                   See
Commonwealth v. Padilla, 80 A.3d 1238, 1259 (Pa. 2013), cert. denied,
134 S. Ct. 2725 (2014). When a defendant who is represented by counsel
files a pro se motion, brief, or petition, the court should file it and forward
the document to counsel. See id. at 1258.




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      B. Whether [Appellant’s] conviction was against the weight of
         the evidence[?]

      C. Whether [Appellant] was prejudiced by trial counsel’s failure
         to preserve the issues of the weight of the evidence and
         sufficiency of the evidence for consideration in [Appellant’s]
         direct appeal[?]

(Appellant’s Brief, at 9).

      Appellant appeals from the denial of his PCRA petition. Our standard

of review for an order denying PCRA relief is well settled:

            This Court’s 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.
      Great deference is granted to the findings of the PCRA court, and
      these findings will not be disturbed unless they have no support
      in the certified record.

Commonwealth v. Carter, 21 A.3d 680, 682 (Pa. Super. 2011) (citations

and quotation marks omitted). Moreover, to be eligible for relief pursuant to

the PCRA, Appellant must establish that his conviction or sentence resulted

from one or more of the enumerated errors or defects found in 42 Pa.C.S.A.

§ 9543(a)(2).    He must also establish that the issues raised in the PCRA

petition have not been previously litigated or waived. See 42 Pa.C.S.A. §

9543(a)(3).    An allegation of error is waived “if the petitioner could have

raised it but failed to do so before trial, during unitary review, on appeal or

in a prior state postconviction proceeding.” 42 Pa.C.S.A. § 9544(b).

      In his first and second claims, Appellant alleges that the evidence was

insufficient to sustain the verdict and that the verdict was against the weight

of the evidence.    (See Appellant’s Brief, at 14-20).        However, Appellant



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cannot properly raise these claims in a PCRA petition. Appellant could have

raised his sufficiency of the evidence claim on direct appeal but did not do

so.   (See Hawk, supra at 1-4).                Therefore, Appellant waived the claim.

See 42 Pa.C.S.A. § 9544(b). Appellant did raise his weight of the evidence

claim on direct appeal.5 (See Hawk, supra at 3). Thus, Appellant cannot

raise this claim in a PCRA petition because he previously litigated it. See 42

Pa.C.S.A. § 9543(a)(3). Accordingly, we find that the PCRA court properly

disposed of Appellant’s first two claims.

       In his final issue, Appellant maintains that trial counsel was ineffective

for not filing post-sentence motions preserving his sufficiency and weight of

the evidence claims for purposes of appeal. (See Appellant’s Brief, at 20-

21). Appellant further claims that trial counsel was ineffective for not raising

a sufficiency of the evidence claim on direct appeal and raising an

unpreserved weight of the evidence claim. (See id. at 22-23).

       We presume that counsel is effective, and Appellant bears the burden

to prove otherwise. See Commonwealth v. Bennett, 57 A.3d 1185, 1195

(Pa. 2012). The test for ineffective assistance of counsel is the same under

both the Federal and Pennsylvania Constitutions.                 See Strickland v.

Washington, 466 U.S. 668, 687-88 (1984); Commonwealth v. Jones,
____________________________________________


5
 On direct appeal, this Court found Appellant had waived his weight of the
evidence claim because he did not raise it in his Rule 1925(b) statement and
because he did not file a post-sentence motion challenging the weight of the
evidence. (See Hawk, supra at 4).



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815 A.2d 598, 611 (Pa. 2002). Appellant must demonstrate 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 proceedings would have been

different. See Commonwealth v. Pierce, 786 A.2d 203, 213 (Pa. 2001),

abrogated on other grounds, Commonwealth v. Grant, 813 A.2d 726 (Pa.

2002).    A failure to satisfy any prong of the test for ineffectiveness will

require rejection of the claim. See Jones, supra at 611.

      In regard to claims raised in PCRA petitions that appellate counsel was

ineffective for failing to raise certain claims on appeal, this Court, relying on

both Pennsylvania and United States Supreme Court decisions, has

reiterated that neither the Pennsylvania nor the United States Constitutions

requires appellate counsel “to raise and to argue all colorable, nonfrivolous

issues”   that   a   criminal   defendant    wishes    to   raise   on   appeal.

Commonwealth v. Showers, 782 A.2d 1010, 1015 (Pa. Super. 2001),

appeal denied, 814 A.2d 677 (Pa. 2002) (citing Jones v. Barnes, 463 U.S.

745 (1983) for proposition that expert appellate advocacy consists of

removal of weaker issues and focus on few strong issues; and citing

Commonwealth         v.   Yocham,     375    A.2d     325   (Pa.    1977),   and

Commonwealth Laboy, 333 A.2d 868, 870 (Pa. 1975), in support of same

view). In Showers, we further stated:


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            Effective assistance of counsel on appeal is informed by
      the exercise of the expertise with which counsel is presumably
      imbued. It is the obligation of appellate counsel to present
      issues which, in counsel’s professional judgment, “go for the
      jugular” and do not get lost in a mound of other colorable,
      nonfrivolous issues which are of lesser merit. Any evaluation of
      the effectiveness of appellate counsel must strike a balance
      between the duty to exercise professional judgment to limit the
      number of issues presented and the duty not to fail to litigate a
      substantial matter of arguable merit that presents a reasonable
      probability that a different outcome would have occurred had it
      been raised by prior counsel. It is the circumstances of the
      particular case which must guide a court in determining whether
      the truth-determining process was so undermined by the alleged
      ineffectiveness that no reliable adjudication of guilt or innocence
      could have taken place.

Id. at 1016-17 (citations omitted).     With this standard in mind, we now

address the specifics of Appellant’s claims.

      Appellant claims that trial counsel was ineffective for failing to file a

post-trial motion challenging the sufficiency of the evidence, thus preserving

the issue for appeal and for failing to challenge the sufficiency of the

evidence on direct appeal. (See Appellant’s Brief, at 20-23). We disagree.

      Initially, we note that it is settled law that a defendant is not required

to file a post-trial motion in order to preserve a sufficiency of the evidence

claim for purposes of appeal. See Commonwealth v. Orellana, 86 A.3d

877, 879 (Pa. Super. 2014) (observing counsel is not required to file motion

to preserve sufficiency of evidence claim for appeal); see also Pa.R.Crim.P.

606(A)(7).    Thus, Appellant’s claim that trial counsel was ineffective for

failing to file a post-sentence motion preserving his sufficiency of the

evidence claim lacks merit.

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      Appellant also claims that trial counsel was ineffective for failing to

raise a sufficiency of the evidence claim on direct appeal. (See Appellant’s

Brief, at 22). Appellant does not challenge his conviction for simple assault

but argues that the evidence was insufficient to sustain his conviction for

aggravated assault because the Commonwealth failed to produce the

weapon used in the assault and none of the witnesses “identified or

described   with    particularity    any     actual,    alleged   deadly      weapon[.]”

(Appellant’s Brief, at 14).

      At the PCRA evidentiary hearing, trial counsel testified that an

argument regarding the existence of the weapon “was not going anywhere”

because of trial testimony that Appellant used a metal object during the

incident. (N.T. PCRA Hearing, 4/17/14, at 10). We agree.

      In order to sustain a conviction for aggravated assault with a deadly

weapon, the Commonwealth must prove that the defendant “attempt[ed] to

cause or intentionally or knowingly cause[d] bodily injury to another with a

deadly weapon[.]” 18 Pa.C.S.A. § 2702(a)(4). The Crimes Code defines a

deadly   weapon,    in   pertinent   part,    as   “.   .   .   any   other   device   or

instrumentality which, in the manner in which it is used or intended to be

used, is calculated or likely to produce death or serious bodily injury.” 18

Pa.C.S.A. § 2301.

      Here, at trial, the victim testified that Appellant struck his vehicle with

a metal object, possibly a metal pipe, with sufficient force to shatter the


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driver’s side window. (See N.T. Trial, 5/09/12, at 34-35). Two witnesses,

both strangers to the victim, testified that they were driving by and

observed Appellant shatter the driver’s side window with a metal object; one

believed it was a tire iron and the other that it was a crowbar. (See id. at

117, 123). Because of the attack, glass lodged in the victim’s eye and the

metal bar struck the victim’s arm and possibly his head. (See id. at 34-35).

We conclude that this evidence was sufficient to sustain a conviction for

aggravated assault.6 See Commonwealth v. Aycock, 470 A.2d 130, 132

(Pa. Super. 1983) (evidence sufficient to sustain conviction for aggravated

assault where defendant attacked victim with piece of channel steel, causing

cuts to his head). Thus, because there is no merit to Appellant’s claim that

the evidence was insufficient to sustain the conviction for aggravated

assault, the PCRA court’s holding that there was no arguable merit to

Appellant’s claim that trial counsel was ineffective for failing to raise the

issue on appeal is both supported by the record and free from legal error.

____________________________________________


6
  Appellant’s reliance on Commonwealth v. Robinson, 721 A.2d 344, 351
(Pa. 1988), cert. denied, 528 U.S. 1082 (2000), is entirely misplaced. (See
Appellant’s Brief, at 15). The issue in Robinson was not the sufficiency of
the evidence underlying an aggravated assault conviction. See Robinson,
supra at 348. Rather, one of the issues was whether, in a case where the
Commonwealth had not found the murder weapon, the trial court erred in
admitting photographs of the defendant holding a gun that could not be the
murder weapon. See id. at 351. Further, while holding that the admission
of the photograph was error, our Supreme Court found it to be harmless
because of other evidence, including eyewitness testimony that the
defendant used a weapon. See id. at 351-52.



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See Pierce, supra at 213; Carter, supra at 682; Showers, supra at

1016-17.

      Lastly, Appellant claims that trial counsel was ineffective for failing to

file a post-trial motion challenging the weight of evidence and for raising an

unpreserved weight of the evidence claim on direct appeal. (See Appellant’s

Brief, at 21-23). We disagree.

      Here, at the evidentiary hearing, trial counsel testified that Appellant

did not request that he file a post-sentence motion challenging the weight of

the evidence and that he believed that a weight of the evidence motion was

unlikely to succeed because of the “brutally difficult” standard. (N.T. PCRA

Hearing,   4/17/14,   at   12;   see   also     id.   at   12-14).   Trial   counsel

acknowledged that he raised a weight of the evidence claim on direct appeal,

but only because he “like[d]” and “wanted to try to help” Appellant and his

family, but told them in advance that he did not believe the appeal would be

successful.   (Id. at 12).   For the reasons discussed below, we find that

Appellant has not shown that either a post-trial motion challenging the

weight of the evidence or a properly preserved weight of the evidence claim

would have changed the result in this matter.

      As trial counsel correctly noted, the scope and standard of review for a

weight of the evidence claim both at the trial court level and on appeal is

exceedingly stringent. See Commonwealth v. Boyd, 73 A.3d 1269, 1274-

75 (Pa. Super. 2013) (en banc) (delineating limited standard of review at


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both trial court and on direct appeal); see also Commonwealth v. Diggs,

949 A.2d 873, 879-80 (Pa. 2008), cert. denied, 556 U.S. 1106 (2009)

(citation omitted) (“[T]he trial court’s denial of a motion for a new trial

based on a weight of the evidence claim is the least assailable of its

rulings.”).

      In its PCRA opinion, the PCRA court, which was also the trial court,

held that Appellant had not shown that there was any merit to his weight of

evidence claim.   (See PCRA Court Opinion, 10/23/14, at 4-5).      The PCRA

court noted the consistent testimony of the witnesses that Appellant

attacked the victim’s car with a metal object and that the attack injured the

victim.   (See id. at 5-6).   Thus, Appellant has not shown that but for

counsel’s failure to file a post-trial motion, the result would have been

different. See Pierce, supra at 213.

      Further, even if Appellant had properly preserved the claim, he has not

shown that there was any likelihood for the claim to succeed on direct

appeal. As discussed above, the evidence against Appellant was strong, and

there would have been no basis to substitute our judgment for the finder of

fact or hold that the trial court palpably abused its discretion in denying a

weight of the evidence claim.   Thus, Appellant has not demonstrated that

but for trial counsel’s failure to preserve his weight of the evidence claim,

the result of his direct appeal would have been different. Accordingly, the

PCRA court’s holding that there was no arguable merit to Appellant’s claim


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that trial counsel was ineffective for failing to raise the issue in a post-trial

motion and properly preserve it for appeal is both supported by the record

and free from legal error.    See Pierce, supra at 213; Carter, supra at

682; Showers, supra at 1016-17. Appellant’s third issue is meritless.

      Accordingly, for the reasons discussed above, we affirm the denial of

Appellant’s PCRA petition.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/5/2015




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