J-S28031-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

HUBERT PEEPLES,

                            Appellant                No. 1369 EDA 2015


                   Appeal from the PCRA Order April 29, 2015
              in the Court of Common Pleas of Philadelphia County
                Criminal Division at No.: CP-51-CR-0501581-2005


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

MEMORANDUM BY PLATT, J.:                                   FILED MAY 04, 2016

        Appellant, Hubert Peeples, appeals from the order dismissing his first,

counseled petition filed pursuant to the Post Conviction Relief Act (PCRA), 42

Pa.C.S.A. §§ 9541-9546. We affirm.

        A previous panel of this Court summarized the factual and procedural

history of this case as follows:

              On May 10, 2005, Appellant’s wife came home to find
        Appellant angry because she was late and had not made dinner.
        After dinner, Appellant and his wife argued, and Appellant
        physically beat his wife and had sex with her against her will.
        The next morning, Appellant’s wife convinced him to take her to
        the hospital where she “told two registered nurses about the
        abuse and the pain she was in.”         Appellant was formally
        arraigned for these events on May 12, 2005.


____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
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               Initially, Appellant was tried by a jury, which resulted in a
        hung jury and a mistrial on September 30, 2005. Then, on
        March 23, 2007, prior to Appellant’s retrial, he filed a Rule
        600(D)1 motion alleging that he was to be tried within 120 days
        after the mistrial. That same day, the trial court discharged the
        case under Rule 600(D)(1) “because [Appellant] was not brought
        to trial promptly within the 120-day period, as the rule
        specifies.”

               The Commonwealth filed a motion for reconsideration of
        the dismissal sometime before July 16, 2007. Appellant waived
        the 30-day time limit2 for that motion in light of past
        consideration the trial judge had given him on time limits. Once
        the trial court realized its mistake in discharging the case when it
        should have only released Appellant from prison, it granted the
        Commonwealth’s motion for reconsideration and reinstated the
        case. However, the motion for reconsideration and the trial
        court’s granting of that motion were never recorded on the
        docket due to some problems the Commonwealth encountered
        when trying to file them with the Clerk of Quarter Sessions.

                                     *     *     *

             On July 26, 2007, [a second] jury found Appellant guilty of
        sexual assault, unlawful restraint, simple assault, recklessly
____________________________________________


1
    Rule 600(D) provide[d] that:

        [w]hen a trial court has granted a new trial and no appeal has
        been perfected, the new trial shall commence within 120 days
        after the date of the order granting a new trial, if the defendant
        is incarcerated on the case. If the defendant has been released
        on bail, trial shall commence within 365 days of the trial court’s
        order.

Pa.R.Crim.P. 600(D)(1).
2
  “[A] court upon notice to the parties may modify or rescind any order
within 30 days after its entry, notwithstanding the prior termination of any
term of court, if no appeal from such order has been taken or allowed.” 42
Pa.C.S. § 5505.




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       endangering another person, and false imprisonment.         On
       February 20, 2009, the court sentenced Appellant to two to four
       years’ incarceration and an additional seven years’ probation
       consecutive to his prison sentence. . . .

(Commonwealth           v.    Peeples,         No.    981   EDA   2009,    unpublished

memorandum at *1-4 (Pa. Super. filed June 4, 2010)) (record citations

omitted).

       This Court affirmed Appellant’s judgment of sentence on June 4, 2010.

(See id. at *8).3        The Pennsylvania Supreme Court denied Appellant’s

petition    for   allowance     of   appeal      on    January    20,   2011.    (See

Commonwealth v. Peeples, 14 A.3d 826 (Pa. 2011)).                       On January 19,

2012, Appellant, acting pro se, filed the instant, timely PCRA petition.

Appointed counsel filed an amended petition on July 19, 2013. On April 29,




____________________________________________


3
  Relevant to the instant collateral appeal, on direct appeal, Appellant raised
the issue of “whether the trial court lost jurisdiction to bring Appellant to
trial after thirty days had passed since the case was dismissed under the
speedy trial provisions of the Pennsylvania Rules of Criminal Procedure, and
there is no order filed of record rescinding or vacating the dismissal.”
(Peeples, supra at *1). The panel stated that the “right of a trial court to
correct mistakes prevails despite the existence of other rules that purport to
divest the trial court of jurisdiction to modify its holdings.” (Id. at *5). It
rejected Appellant’s claim, determining that “the trial court clearly intended
to rescind its dismissal when it relisted the case for trial, after the
Commonwealth filed a motion for reconsideration,” and the court realized its
mistake in discharging the case. (Id. at *8; see id. at *3). It affirmed the
judgment of sentence and remanded the case to the trial court for updating
of the record to reflect that the dismissal had been rescinded. (See id. at
*8).




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2015, the PCRA court entered its order dismissing Appellant’s PCRA petition.

This timely appeal followed.4

        Appellant presents the following questions for our review:

        [I.] Whether the [PCRA court] was in error in not granting relief
        on the PCRA petition alleging counsel was ineffective[?]

        [II.] Whether the [PCRA court] was in error in denying the
        Appellant’s PCRA petition without an evidentiary hearing on the
        issues raised in the amended PCRA petition regarding trial
        counsel’s ineffectiveness[?]

(Appellant’s Brief, at 8).5

        Our standard of review is as follows:

              This Court’s standard of review regarding an order denying
        a petition under the PCRA 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. Wah, 42 A.3d 335, 338 (Pa. Super. 2012) (citations

omitted).

        In the first issue, Appellant argues that the PCRA court erred in not

granting him relief on his three ineffective assistance of trial counsel claims.

(See Appellant’s Brief, at 16-21). Specifically, he contends that counsel was

ineffective in: neglecting to file a post-trial motion challenging the weight of

____________________________________________


4
  Pursuant to the PCRA court’s order, Appellant filed a timely concise
statement of errors complained of on appeal on July 20, 2015. The court
entered an opinion on August 3, 2015. See Pa.R.A.P. 1925.
5
    We have reordered Appellant’s issues for ease of disposition.



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the evidence; failing to present evidence that the victim was withdrawing

funds from the bank account she shared with Appellant; and waiving the

thirty-day time limitation on trial court reconsideration of its order

dismissing the case.    (See id.; see also Peeples, supra at *2-3).             This

issue does not merit relief.

      To prevail on a petition for PCRA relief on grounds of ineffective

assistance   of   counsel,     a   petitioner   must   plead   and   prove,   by    a

preponderance of the evidence, “[t]hat the conviction or sentence resulted

from . . . [i]neffective assistance of counsel which, in the circumstances of

the particular case, so undermined the truth-determining process that no

reliable adjudication of guilt or innocence could have taken place.”               42

Pa.C.S.A. § 9543(a)(2)(ii).

      A petitioner must demonstrate “(1) that the underlying claim is of

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

her action or inaction; and (3) that, but for the errors and omissions of

counsel, there is a reasonable probability that the outcome of the

proceedings would have been different.”          Commonwealth v. McDermitt,

66 A.3d 810, 813 (Pa. Super. 2013) (citation omitted).               “The failure to

satisfy any prong of this test will cause the entire claim to fail.”               Id.

(citation omitted). “It is well-established that counsel is presumed effective,

and [a PCRA petitioner] bears the burden of proving ineffectiveness.”

Commonwealth v. Reyes-Rodriguez, 111 A.3d 775, 779-80 (Pa. Super.




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2015) (en banc), appeal denied, 123 A.3d 331 (Pa. 2015) (citations

omitted).

      In the instant case, Appellant first argues that counsel was ineffective

in failing to file a post-trial motion challenging the weight of the evidence.

(See Appellant’s Brief, at 17-20).      In support, Appellant points to the

victim’s trial testimony, which he asserts “did not have the ring of truth,”

(id. at 17), and to his own statement to police, which he claims “had the

ring of truth to it and contradicted everything that [the victim] said.” (Id. at

18). Appellant argues that given the conflicting evidence that was presented

at trial, jury’s verdict of guilt shocks one’s sense of justice. (See id. at 18-

20). This argument is waived and would not merit relief.

      Preliminarily, we observe that although Appellant emphasizes the

victim’s allegedly inconsistent and dishonest testimony, and his own truthful

statement to police, he fails to provide this Court with any citations at all to

these statements in the record. Thus, Appellant has waived this argument.

See Pa.R.A.P. 2119(a)-(b), 2101.

      Moreover, it would not merit relief.    “The weight of the evidence is

exclusively for the finder of fact who is free to believe all, part, or none of

the   evidence   and   to   determine   the   credibility   of   the   witnesses.”

Commonwealth v. Luster, 71 A.3d 1029, 1049 (Pa. Super. 2013), appeal

denied, 83 A.3d 414 (Pa. 2013) (emphasis added; citation omitted).            “To

grant a new trial based upon the weight of the evidence, it must appear [to

the trial court] that the verdict was so contrary to the evidence as to shock

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one’s sense of justice and make the award of a new trial imperative.” Id.

(citation   and   internal   quotation   marks    omitted).        “[T]he   fact   that

contradictory evidence exists as to a particular issue does not, by itself,

render the verdict so contrary to the evidence that one’s sense of justice is

shocked.” Commonwealth v. Miller, 724 A.2d 895, 901 (Pa. 1999), cert.

denied sub nom. Miller v. Pennsylvania, 528 U.S. 903 (1999) (citation

omitted).

      Here,    the   jury,   as   fact-finder,   was   free   to   make     credibility

determinations and resolve any inconsistencies in the evidence, and to

believe the victim’s version of events instead of Appellant’s.          See Luster,

supra at 1049. Thus, we agree with the PCRA court that Appellant’s bald,

unsupported assertions that the victim was lying and that he was telling the

truth is not enough to establish that a post-trial weight claim would have

been meritorious and that he was prejudiced by counsel’s decision not to file

such motion.      (See PCRA Ct. Op., at 7); see also McDermitt, supra at

813. Appellant’s argument is waived and would not merit relief.

      Appellant next argues that trial counsel should have presented

evidence that the victim was withdrawing funds from a joint bank account

she shared with Appellant.        (See Appellant’s Brief, at 20).      This issue is

waived.

      In his half-page argument on this issue, Appellant cites to general,

boilerplate law regarding ineffective assistance of counsel, and swiftly

concludes that his claim is meritorious, that counsel lacked a strategic basis

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for not presenting the evidence, and that he was prejudiced by this

omission.    (See id.). However, he does not cite to any legal authority to

support his specific claim that counsel was ineffective for failing to present

evidence regarding the joint bank account, nor does he cite to the record.

(See id.).

      Our Supreme Court has “stress[ed] that boilerplate 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. Chmiel, 30 A.3d 1111, 1128 (Pa. 2011) (citation

omitted).    Furthermore,

      [i]n an appellate brief, parties must provide an argument as to
      each question, which should include a discussion and citation of
      pertinent authorities. Pa.R.A.P. 2119(a), 42 Pa.C.S.A. This
      Court is neither obliged, nor even particularly equipped, to
      develop an argument for a party. To do so places the Court in
      the conflicting roles of advocate and neutral arbiter. When an
      appellant fails to develop his issue in an argument and fails to
      cite any legal authority, the issue is waived.

Commonwealth v. B.D.G., 959 A.2d 362, 371-72 (Pa. Super. 2008) (en

banc) (case citations omitted); see also Pa.R.A.P. 2119(a)-(b). Therefore,

Appellant has waived this argument.

      In his final claim of ineffectiveness, Appellant argues that trial counsel

was ineffective for waiving the thirty-day time limitation for the trial court to

reconsider its order dismissing the case. (See Appellant’s Brief, at 20-21;

see also Peeples, supra at *2-3).        Appellant maintains “[t]he trial court

had lost jurisdiction to bring [him] to trial since thirty days had passed since

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the case was dismissed under the speedy trial provisions.” (Id. at 21). He

also points to the fact that “[t]here was no order filed of record rescinding or

vacating the dismissal.”    (Id.).   This argument is waived and would not

merit relief.

      First, Appellant fails to develop this argument with citation to, or

discussion of, pertinent legal authority. He again merely cites to boilerplate

law regarding the three prongs of the ineffectiveness test, and summarily

concludes that counsel was ineffective.      Accordingly, he was waived this

argument. See Pa.R.A.P. 2119(a)-(b); Chmiel, supra at 1128.

      Moreover, as discussed above, a panel of this Court on direct appeal

already considered and rejected Appellant’s underlying claim that the trial

court lost jurisdiction to bring him to trial because more than thirty days had

elapsed since its dismissal of the case and there was no order in the record

memorializing the dismissal.     (See Peeples, supra at *1, *5-8; 3 n.3,

supra). The panel determined that the trial court did not lose jurisdiction to

try Appellant, and the court had the inherent power to correct mistakes in

the record. (See Peeples, supra at *5-8). Thus, we agree with the PCRA

court’s conclusion that “it is irrelevant that counsel had waived the thirty-day

(30) period to reconsider.     It [was] within this [c]ourt’s discretion and

authority to reconsider.” (PCRA Ct. Op., at 10). Therefore, Appellant has

failed to establish that his underlying claim has arguable merit or that he

was prejudiced by counsel’s action.         See McDermitt, supra at 813.


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Appellant’s final ineffectiveness argument is waived and would not merit

relief.

          In the second issue, Appellant contends that the PCRA court erred in

denying his petition without holding an evidentiary hearing on his ineffective

assistance of counsel claims.          (See Appellant’s Brief, at 15-16).        We

disagree.

          It is well-settled “that a PCRA petitioner is not automatically entitled to

an evidentiary hearing.” Commonwealth v. Miller, 102 A.3d 988, 992 (Pa.

Super. 2014).       “We review the PCRA court’s decision dismissing a petition

without a hearing for an abuse of discretion.” Id. (citation omitted).

                      [T]he right to an evidentiary hearing on a post-
                conviction petition is not absolute. It is within the
                PCRA court’s discretion to decline to hold a hearing if
                the petitioner’s claim is patently frivolous and has no
                support either in the record or other evidence. It is
                the responsibility of the reviewing court on appeal to
                examine each issue raised in the PCRA petition in
                light of the record certified before it in order to
                determine if the PCRA court erred in its
                determination that there were no genuine issues of
                material fact in controversy and in denying relief
                without conducting an evidentiary hearing.

                 [A]n evidentiary hearing is not meant to function as a
          fishing expedition for any possible evidence that may support
          some speculative claim of ineffectiveness.

Id. (citations and quotation marks omitted).

          Here, it is apparent from the record that, although the PCRA court did

not hold an evidentiary hearing, it carefully and thoroughly examined

Appellant’s ineffectiveness claims and concluded that they lacked merit.


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(See PCRA Ct. Op., at 5-10). After reviewing Appellant’s claims in light of

the certified record, we discern no abuse of discretion in the PCRA court’s

decision to decline to hold a hearing.       See Miller, 102 A.3d at 992.

Therefore, the second issue does not merit relief. Accordingly, we affirm the

court’s order dismissing Appellant’s PCRA petition.

      Order affirmed.

      Judge Lazarus joins the Memorandum.

      Judge Bowes concurs in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/4/2016




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