J-S07024-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                       Appellee                :
                                               :
                v.                             :
                                               :
    V.D.                                       :
                                               :
                       Appellant               :      No. 3401 EDA 2018

             Appeal from the PCRA Order Entered October 19, 2018
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0002432-2009


BEFORE:      NICHOLS, J., KING, J., and STRASSBURGER, J.*

MEMORANDUM BY KING, J.:                                    Filed: April 16, 2020

        Appellant, V.D., appeals from the order entered in the Philadelphia

County Court of Common Pleas, which denied his first petition filed under the

Post-Conviction Relief Act (“PCRA”), at 42 Pa.C.S.A. §§ 9541-9546.           We

affirm.

        The relevant facts and procedural history of this case are as follows. In

2003 and 2005, Appellant sexually abused his minor daughter (“Victim”).

Following a bench trial, the trial court convicted Appellant on December 13,

2011, of one count each of endangering the welfare of a child, indecent assault

of a person less than 13, corruption of minors, simple assault, and reckless

endangerment of another person (“REAP”). The court sentenced Appellant on


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*   Retired Senior Judge assigned to the Superior Court.
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June 8, 2012, to an aggregate term of seven (7) to fourteen (14) years’

incarceration. On June 11, 2014, this Court reversed Appellant’s convictions

for simple assault and REAP, vacated the sentence for simple assault, and

otherwise affirmed the judgment of sentence.1 See Commonwealth v. V.D.,

105 A.3d 30 (Pa.Super. 2014) (unpublished memorandum), appeal denied,

628 Pa. 219, 102 A.3d 984 (2014). Our Supreme Court denied allowance of

appeal on October 29, 2014. Id.

       On July 24, 2015, Appellant timely filed pro se his first and current PCRA

petition, asserting, inter alia, trial counsel rendered ineffective assistance for

failing to call potential witnesses and/or elicit additional witness testimony at

trial. Appellant attached to his pro se petition affidavits of (i) P.M., Appellant’s

former landlord, who testified at trial, and (ii) P.D., his mother, who did not

testify.   The PCRA court subsequently appointed counsel, who filed an

amended PCRA petition on March 9, 2017. On August 24, 2018, the PCRA

court issued notice of its intent to dismiss the petition without a hearing per

Pa.R.A.P. 907; Appellant filed a pro se response on September 28, 2018. The

court denied PCRA relief on October 19, 2018. On Monday, November 19,

2018, Appellant filed a timely notice of appeal. The PCRA court did not order

Appellant to file a concise statement of errors complained of on appeal per



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1 This Court’s disposition did not require remand for resentencing because the
trial court had imposed a concurrent term of imprisonment for simple assault
and no further penalty for REAP.

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Pa.R.A.P. 1925(b), and Appellant filed none.

       Appellant raises one issue for our review:

          DID THE PCRA COURT ERR IN DENYING [APPELLANT]’S
          PCRA PETITION WITHOUT A HEARING, EVEN THOUGH
          []APPELLANT PLED, AND COULD HAVE PROVEN, CAUSE FOR
          RELIEF?

(Appellant’s Brief at 3).

       Appellant argues trial counsel should have called P.D. to testify and

elicited additional testimony from P.M. at trial. Appellant submits a hearing

was necessary to determine whether the proffered testimony of P.D. and P.M.

would have altered the outcome of trial. Appellant concludes this Court should

remand for an evidentiary hearing or grant Appellant a new trial. 2        We

disagree.

       Our standard of review of the denial of a PCRA petition is limited to

examining whether the evidence of record supports the court’s determination

and whether its decision is free of legal error. Commonwealth v. Conway,

14 A.3d 101, 108 (Pa.Super. 2011), appeal denied, 612 Pa. 687, 29 A.3d 795

(2011). This Court grants great deference to the findings of the PCRA court if

the record contains any support for those findings. Commonwealth v. Boyd,

923 A.2d 513, 515 (Pa.Super. 2007), appeal denied, 593 Pa. 754, 932 A.2d


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2 To the extent Appellant asserts trial counsel was ineffective for stipulating
to testimony of a certain witness, this particular claim is waived because
Appellant failed to include it in his PCRA petition. See Pa.R.A.P. 302(a)
(stating: “Issues not raised in the [PCRA] court are waived and cannot be
raised for the first time on appeal”).

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74 (2007).     We give no such deference, however, to the court’s legal

conclusions.   Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa.Super.

2012). Further, a petitioner is not entitled to a PCRA hearing as a matter of

right; the PCRA court can decline to hold a hearing if there is no genuine issue

concerning any material fact, the petitioner is not entitled to PCRA relief, and

no purpose would be served by any further proceedings. Commonwealth v.

Wah, 42 A.3d 335 (Pa.Super. 2012). Significantly:

         PCRA hearings are not discovery expeditions, but are
         conducted when necessary to offer the petitioner an
         opportunity to prove his explicit assertion of ineffectiveness
         raising a colorable claim about which there remains an issue
         of material fact. Particularly when PCRA claims require
         examination of trial strategy, it is not enough to take a cold
         record, state alternative choices counsel could have made,
         and then declare an entitlement to relief. Mere conclusory
         allegations, without some proffer as to what counsel would
         say in response to the allegations are insufficient to
         establish entitlement to relief. Thus a supporting document
         from counsel stating his reasons for the course chosen is
         generally necessary to establish potential entitlement to a
         hearing.

         …    Although [the Pennsylvania Supreme] Court has
         dismissed claims of ineffectiveness where appellant has not
         provided counsel’s affidavit, [the Court has] indicated [the
         Court] may overlook the failure where appellant adequately
         explains why he did not submit it.

Commonwealth v. Cousar, 638 Pa. 171, 192-93, 154 A.3d 287, 299-300

(2017) (internal citations omitted).

      The    law   presumes   counsel   has   rendered   effective   assistance.

Commonwealth v. Williams, 597 Pa. 109, 950 A.2d 294 (2008). To prevail

on a claim of ineffective assistance of counsel, a petitioner bears the burden

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to prove his claims by a preponderance of the evidence. Commonwealth v.

Turetsky, 925 A.2d 876 (Pa.Super. 2007), appeal denied, 596 Pa. 707, 940

A.2d 365 (2007). The petitioner must demonstrate: (1) the underlying claim

has arguable merit; (2) counsel had no reasonable strategic basis for the

asserted action or inaction; and (3) but for the errors and omissions of

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

would have been different. Id. See also Commonwealth v. Kimball, 555

Pa. 299, 724 A.2d 326 (1999). “A reasonable probability is a probability that

is sufficient to undermine confidence in the outcome of the proceeding.”

Commonwealth v. Spotz, 624 Pa. 4, 34, 84 A.3d 294, 312 (2014) (quoting

Commonwealth v. Ali, 608 Pa. 71, 86-87, 10 A.3d 282, 291 (2010)).

“Where it is clear that a petitioner has failed to meet any of the three, distinct

prongs of the…test, the claim may be disposed of on that basis alone, without

a determination of whether the other two prongs have been met.”

Commonwealth v. Steele, 599 Pa. 341, 360, 961 A.2d 786, 797 (2008).

      “The threshold inquiry in ineffectiveness claims is whether the

issue/argument/tactic which counsel has foregone and which forms the basis

for the assertion of ineffectiveness is of arguable merit….” Commonwealth

v. Pierce, 537 Pa. 514, 524, 645 A.2d 189, 194 (1994). “Counsel cannot be

found ineffective for failing to pursue a baseless or meritless claim.”

Commonwealth v. Poplawski, 852 A.2d 323, 327 (Pa.Super. 2004).

         Once this threshold is met we apply the “reasonable basis”
         test to determine whether counsel’s chosen course was

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         designed to effectuate his client’s interests. If we conclude
         that the particular course chosen by counsel had some
         reasonable basis, our inquiry ceases and counsel’s
         assistance is deemed effective.

Pierce, supra at 524, 645 A.2d at 194-95 (internal citations omitted).

      “Where matters of strategy and tactics are concerned, counsel’s

assistance is deemed constitutionally effective if he chose a particular course

that had some reasonable basis designed to effectuate his client’s interests.”

Commonwealth v. Sneed, 616 Pa. 1, 19, 45 A.3d 1096, 1107 (2012).

         A finding that a chosen strategy lacked a reasonable basis
         is not warranted unless it can be concluded that an
         alternative not chosen offered a potential for success
         substantially greater than the course actually pursued. A
         claim of ineffectiveness generally cannot succeed through
         comparing, in hindsight, the trial strategy employed with
         alternatives not pursued.

Id. at 19-20, 45 A.3d at 1107 (internal citations and quotation marks

omitted).

         Prejudice is established when [an appellant] demonstrates
         that counsel’s chosen course of action had an adverse effect
         on the outcome of the proceedings. The [appellant] 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. In [Kimball, supra], we held that a criminal
         [appellant] alleging prejudice must show that counsel’s
         errors were so serious as to deprive the defendant of a fair
         trial, a trial whose result is reliable.

Commonwealth v. Chambers, 570 Pa. 3, 21-22, 807 A.2d 872, 883 (2002)

(internal citations and quotation marks omitted).

         [T]o prevail on a claim of ineffectiveness for failing to call a

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         witness, a [petitioner] must prove, in addition to meeting
         the three Pierce requirements, that: (1) the witness
         existed; (2) the witness was available to testify for the
         defense; (3) counsel knew or should have known of the
         existence of the witness; (4) the witness was willing to
         testify for the defense; and (5) the absence of the [witness’]
         testimony was so prejudicial as to have denied him a fair
         trial.

Commonwealth v. Wright, 599 Pa. 270, 331, 961 A.2d 119, 155 (2008). A

petitioner’s failure to identify or present potential witnesses is grounds for

denial of relief. Commonwealth v. Treiber, 632 Pa. 449, 498, 121 A.3d

435, 464 (2015).

         To demonstrate…prejudice, a petitioner must show how the
         uncalled [witness’] testimony would have been beneficial
         under the circumstances of the case. Thus, counsel will not
         be found ineffective for failing to call a witness unless the
         petitioner can show that the [witness’] testimony would
         have been helpful to the defense. A failure to call a witness
         is not per se ineffective assistance of counsel for such
         decision usually involves matters of trial strategy.

Sneed, supra at 23, 45 A.3d at 1109 (internal citations and quotation marks

omitted). See also Treiber, supra at 498, 121 A.3d at 463-64 (providing

failure to call character witnesses to support defendant’s good character does

not constitute per se ineffectiveness; trial counsel did not render ineffective

assistance where counsel had reasonable, strategic basis for not calling

character witnesses to testify).

      Further, “[t]he threshold inquiry with the admission of evidence is

whether the evidence is relevant.” Commonwealth v. Stokes, 78 A.3d 644,

654 (Pa.Super. 2013), appeal denied, 625 Pa. 636, 89 A.3d 661 (2014).


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“Evidence is relevant if it logically tends to establish a material fact in the case,

tends to make a fact at issue more or less probable, or supports a reasonable

inference or presumption regarding the existence of a material fact.” Id. See

also Pa.R.E. 401 (defining relevant evidence). Nevertheless, “[t]he court may

exclude relevant evidence if its probative value is outweighed by a danger of

one or more of the following: unfair prejudice, confusing the issues,

misleading the jury, undue delay, wasting time, or needlessly presenting

cumulative evidence.” Pa.R.E. 403. See also Commonwealth v. Cook, 544

Pa. 361, 676 A.2d 639 (1996), cert. denied, 519 U.S. 1119, 117 S.Ct. 967,

136 L.Ed.2d 851 (1997) (holding trial court properly excluded defendant’s

proffered testimony from four witnesses, that victim owed money to his drug

supplier, to support defense theory that Appellant did not commit crimes at

issue; proffered evidence was merely speculative and had little to no probative

value).

      Pennsylvania Rule of Evidence 404 provides in relevant part:

          Rule 404. Character Evidence; Crimes or Other Acts

          (a)   Character Evidence.

          (1) Prohibited Uses. Evidence of a person’s character or
          character trait is not admissible to prove that on a particular
          occasion the person acted in accordance with the character
          or trait.

          (2) Exceptions for a Defendant or Victim in a Criminal
          Case. The following exceptions apply in a criminal case:

             (A) a defendant may offer evidence of the defendant’s
             pertinent trait, and if the evidence is admitted, the

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            prosecutor may offer evidence to rebut it[.]

                                  *    *    *

Pa.R.E. 404(a).

         Evidence of good character offered by a defendant in a
         criminal prosecution must be limited to his general
         reputation for the particular trait or traits of character
         involved in the commission of the crime charged. Such
         evidence must relate to a period at or about the time the
         offense was committed…and must be established by
         testimony of witnesses as to the community opinion of the
         individual in question, not through specific acts or mere
         rumor. In a [sexual assault] case, evidence of the character
         of the defendant would be limited to presentation of
         testimony concerning his general reputation in the
         community with regard to such traits as non-violence or
         peaceableness, quietness, good moral character, chastity,
         and disposition to observe good order.

Commonwealth v. Lauro, 819 A.2d 100, 109 (Pa.Super. 2003), appeal

denied, 574 Pa. 752, 830 A.2d 975 (2003) (internal citations and quotation

marks omitted) (emphasis in original).

      Instantly, the PCRA court addressed Appellant’s ineffectiveness claim,

in relevant part, as follows:

         With regard to prospective witness [P.D.] (mother),
         [Appellant] has provided this [c]ourt with an affidavit with
         various accountings of family gatherings and things
         [Appellant] had done for his family. Nothing in the affidavit
         pertains to the place or time of the incidents giving rise to
         the instant convictions, but instead simply concludes that
         [Appellant] was part of a loving family and avers that any
         suggestion that [Appellant] “would ever do anything to
         harm either one of his children i[s] ridiculous.” As such, the
         proffered testimony of [P.D.] consists of unrelated events
         and character assessments, which are prohibited by the
         Pennsylvania Rules of Evidence, and trial counsel cannot be
         deemed ineffective for failing to present irrelevant and/or

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         inadmissible testimony.

         [W]ith regard to [P.M.] (former landlord), [Appellant]
         provided this [c]ourt with an affidavit stating that [Victim]
         and her mother had been seen at [Appellant]’s apartment,
         that [Appellant] had helped repair a sidewalk, and
         concluding that [Appellant] had a beautiful family. The
         instant affidavit provides no new or additional information
         [to] the case because [P.M.] was called by the defense
         as a witness at trial and testified to such facts on
         December 13, 2011. …

                                   *     *      *

         While the instant affidavit further characterizes [Appellant]’s
         family as a “beautiful family,” such proffered testimony is
         irrelevant to the incidents giving rise to the instant
         convictions and would constitute an inadmissible character
         assessment. As such, trial counsel cannot be deemed
         ineffective for failing to elicit irrelevant and/or inadmissible
         testimony from a defense witness called at trial.

(PCRA Court Opinion, filed October 19, 2018, at 7-8, unpaginated) (internal

quote from record and footnotes omitted) (emphasis in original). The record

supports the PCRA court’s rationale.         See Conway, supra.      In his PCRA

petition, Appellant did not show: (i) the proposed witnesses’ testimony would

have been admissible and altered the outcome of trial; and (ii) the absence of

the proffered testimony denied Appellant a fair trial. See Wright, supra;

Turetsky, supra. Therefore, Appellant failed to satisfy the general three-

pronged ineffectiveness test and the more specific five-pronged test to

succeed on a claim of ineffectiveness for failing to call a witness. See Wright,

supra; Turetsky, supra.         Additionally, Appellant did not (i) obtain a

statement from trial counsel detailing counsel’s rationale in not presenting


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such witness testimony at trial or (ii) provide an explanation for Appellant’s

failure to procure such a statement. See Cousar, supra. Thus, the court

properly denied PCRA relief without a hearing. See Wah, supra; Conway,

supra. Accordingly, we affirm.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/16/20




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