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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,               :   IN THE SUPERIOR COURT OF
                                            :         PENNSYLVANIA
                   Appellee                 :
                                            :
          v.                                :
                                            :
CHRISTOPHER K. CATER,                       :
                                            :
                   Appellant                :   No. 2518 EDA 2015

                    Appeal from the PCRA Order July 21, 2015,
               in the Court of Common Pleas of Philadelphia County,
                 Criminal Division, at No: CP-51-CR-0016587-2008

BEFORE:        FORD ELLIOTT, P.J.E., STABILE, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.:                     FILED AUGUST 24, 2016

      Christopher K. Cater (Appellant) appeals from the order which

dismissed his petition filed pursuant to the Post Conviction Relief Act (PCRA),

42 Pa.C.S. §§ 9541-9546. We affirm.

      A prior panel of this Court set forth the background underlying this

matter as follows.

            In the early afternoon of October 27, 2008, brothers
      Antonio and Mark Mention, along with their uncle Anthony and
      friend Adolphus, were standing in vacant lot on the 2900 block of
      Edgley Street in Philadelphia, watching Adolphus work on his
      van. While engaged in conversation, Antonio noticed Appellant
      and another man driving on to Edgley Street and then back out
      due to a street closure. Soon thereafter, Antonio saw Appellant
      walk towards the men, carrying a bag.               As Appellant
      approached, he pulled a sawed-off rifle out of the bag, pointed it
      at the men, and began demanding money from Antonio, Anthony
      and Mark. When Mark told Appellant that he had no money,
      Appellant shot him. After the shooting Adolphus ran into the
      house to contact the police. Mark then turned and ran to a
      friend’s house. He was subsequently transported to the hospital

*Retired Senior Judge assigned to the Superior Court.
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      for treatment of a gunshot wound to his arm and stomach.
      Anthony and Antonio grabbed the rifle from Appellant, began
      beating him with it and held Appellant until the police arrived.
      Following a bench trial, the court found Appellant guilty of three
      counts each of aggravated assault and robbery, one count of
      possessing an instrument of crime, and one count of carrying a
      firearm without a license. On June 4, 2010, the trial court
      imposed an aggregate sentence of seven and one-half to fifteen
      years’ incarceration.

Commonwealth v. Cater, 37 A.3d 1241 (Pa. Super. 2011) (unpublished

memorandum at 1-2). This Court affirmed Appellant’s judgment of sentence

on October 24, 2011. Id.

      On January 13, 2012, Appellant pro se filed a PCRA petition. Counsel

was appointed and, for reasons not apparent from the record, different

counsel entered an appearance on May 30, 2014. On August 26, 2014, an

amended petition was filed. The Commonwealth filed a motion to dismiss,

and the PCRA court issued notice of its intent to dismiss the petition without

a hearing pursuant to Pa.R.Crim.P. 907. On July 21, 2015, the PCRA court

dismissed the petition. This appeal followed.

      On appeal, Appellant raises one issue for our consideration: “Where a

petitioner in a PCRA petition raises substantial issues of material fact should

the court grant discovery and an evidentiary hearing?” Appellant’s Brief at

8.

      “This Court’s standard of review regarding an order dismissing a PCRA

petition is whether the determination of the PCRA court is supported by




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evidence of record and is free of legal error.” Commonwealth v. Brandon,

51 A.3d 231, 233 (Pa. Super. 2012).

      Appellant contends that the PCRA court improperly denied him an

evidentiary hearing and discovery on the claim that his counsel was

ineffective for failing to have the firearm used during the incident in question

tested for fingerprint evidence.    Appellant’s Brief at 14.    Appellant also

argues that the PCRA court should have granted him a hearing on his claim

that his counsel was ineffective for failing to question Mark Mention about his

providing a false name and address to hospital personnel in order to attack

his credibility. Id. at 15.

      “A PCRA petitioner is not entitled to an evidentiary hearing as a matter

of right, but only where the petition presents genuine issues of material fact.

A PCRA court’s decision denying a claim without a hearing may only be

reversed upon a finding of an abuse of discretion.” Commonwealth v.

Walker, 36 A.3d 1, 17 (Pa. 2011) (citations omitted).

      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.

Commonwealth v. Wah, 42 A.3d 335, 338 (Pa. Super. 2012) (citations

omitted).




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      With respect to discovery under the PCRA, Pa.R.Crim.P. 902 provides,

in relevant part, that “[e]xcept as provided in paragraph (E)(2) [relating to a

first, counseled petition in a death penalty case], no discovery shall be

permitted at any stage of the proceedings, except upon leave of court after a

showing of exceptional circumstances.” Pa.R .Crim.P. 902(E)(1). “The PCRA

and the criminal rules do not define the term ‘exceptional circumstances.’”

Commonwealth v. Frey, 41 A.3d 605, 611 (Pa. Super. 2012). “Rather, it

is for the trial court, in its discretion, to determine whether a case is

exceptional and discovery is therefore warranted.” Id. (citation omitted).

“The denial of a request for post-conviction discovery is reviewed for an

abuse of discretion. Commonwealth v. Edmiston, 65 A.3d 339, 353 (Pa.

2013) (citation omitted). Mere speculation that exculpatory materials may

exist does not constitute a showing of exceptional circumstances. See

Commonwealth v. Dickerson, 900 A.2d 407, 412 (Pa. Super. 2006).

Moreover, “[d]iscovery in PCRA proceedings cannot be used as an excuse for

engaging in a ‘fishing expedition.’”      Edmiston, 65 A.3d at 353 (citation

omitted).

      Because Appellant’s claims pertain to the alleged ineffective assistance

of his counsel, we further observe that

      a PCRA petitioner will be granted relief only when he proves, by
      a preponderance of the evidence, that his conviction or sentence
      resulted from the [i]neffective assistance of counsel which, in the
      circumstances of the particular case, so undermined the



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     truth-determining process that no reliable adjudication of guilt or
     innocence could have taken place. …

        It is well-established that counsel is presumed to have
        provided effective representation unless the PCRA
        petitioner pleads and proves all of the following: (1) the
        underlying legal claim is of arguable merit; (2) counsel’s
        action or inaction lacked any objectively reasonable basis
        designed to effectuate his client’s interest; and (3)
        prejudice, to the effect that there was a reasonable
        probability of a different outcome if not for counsel’s error.

     The PCRA court may deny an ineffectiveness claim if the
     petitioner’s evidence fails to meet a single one of these prongs.
     Moreover, a PCRA petitioner bears the burden of demonstrating
     counsel’s ineffectiveness.

Commonwealth v. Franklin, 990 A.2d 795, 797 (Pa. Super. 2010)

(internal quotation marks and citations omitted).

     To satisfy the prejudice prong, it must be demonstrated that,
     absent counsel’s conduct, there is a reasonable probability that
     the outcome of the proceedings would have been different. If it
     has not been demonstrated that counsel’s act or omission
     adversely affected the outcome of the proceedings, the claim
     may be dismissed on that basis alone, and the court need not
     first decide whether the first and second prongs have been met.

Commonwealth v. Perez, 103 A.3d 344, 348 (Pa. Super. 2014) (citation

omitted).

     Regarding counsel’s failure to have the firearm tested for fingerprints,

Appellant argues that he informed his counsel “that he never possessed the

firearm and that its testing for fingerprint evidence would have produced

evidence that would have exonerated him.”           Appellant’s Brief at 14.

Appellant argues that this constituted ineffective assistance of counsel



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“which could only have been proven by the holding of an evidentiary hearing

and permitting discovery,” as he needs to ascertain whether the firearm “is

still in the possession of the Commonwealth and whether testing would

demonstrate that said evidence could have changed the outcome of the

trial.” Id.

       Appellant’s bald claim that the fingerprint evidence would have

exonerated him amounts to nothing more than mere speculation as to the

prejudice Appellant allegedly suffered and, thus, it is insufficient to meet his

burden      under   the   ineffectiveness   test.   See   Commonwealth       v.

Charleston, 94 A.3d 1012, 1026 (Pa. Super. 2014) (“Unsupported

speculation does not establish reasonable probability.”); Commonwealth v.

Pursell, 724 A.2d 293, 311 (Pa. 1999) (“Claims of ineffective assistance of

counsel that are based on speculation and conjecture do not adequately

establish the degree of prejudice necessary.”). Moreover, we fail to see how

he was prejudiced given that such evidence is not exculpatory per se. See

Commonwealth v. Wright, 388 A.2d 1084, 1086 (Pa. Super. 1978)

(“[T]he absence of appellant’s fingerprints is not exculpatory per se and

might be explained [by] any one of many reasons consistent with his

guilt.”).   See also Commonwealth v. Heilman, 867 A.2d 542, 547 (Pa.

Super. 2005) (“In DNA as in other areas, an absence of evidence is not

evidence of absence.”).      For these reasons, his ineffectiveness claim fails




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and, consequently, the PCRA court did not abuse its discretion in denying

Appellant a hearing on this claim.

      As for Appellant’s discovery request, it is clear that Appellant is

attempting merely to engage in a fishing expedition for potentially

exculpatory evidence. Thus, the PCRA court did not abuse its discretion in

denying Appellant’s request.

      With respect to counsel’s failure to attack Mark Mention’s credibility

through cross-examination about his providing a false name and address to

hospital personnel, Appellant’s argument is as follows.

      [T]he testimony of the two complaining witnesses were the only
      evidence against … Appellant. If one of those two witnesses lied
      about basic information such as his name and address when he
      was taken to the hospital his credibility could have been called
      into question. There is no downside to confronting the witness
      on the issue. Proper cross[-]examination could have made a
      difference in the outcome of the trial. The failure of counsel to
      question him about that constitutes ineffective assistance of
      counsel.

Appellant’s Brief at 15.

      In addressing this claim, the PCRA court explained that “[d]uring the

sentencing hearing the Commonwealth advised … that Mark Mention gave

his mother’s surname and address to hospital personnel.[1] Clearly, the fact



1
  The Commonwealth explained this information prior to sentencing during
argument on Appellant’s motion for a new trial. N.T., 6/4/2010/, at 9-10
(“[T]he medical records were stipulated to. … They clearly show that his
mother’s name is Michelle Mitchell. So that may be something as to why he
had given the name Mark Mitchell and a different address, which was, I


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that he did so is not so earth shattering such that the presentation of this

information at trial would have resulted in a different verdict given the

overwhelming evidence of guilt presented at trial.” PCRA Court Opinion,

12/18/2015, at 6-7 (citation omitted).      In light of this conclusion and

Appellant’s unsupported arguments that Mark Mention’s “credibility could

have been called into question” and that the line of questioning “could have

made a difference in the outcome of the trial,” Appellant has failed to

convince us that there is a reasonable probability that the outcome of his

trial would have been different had that line of questioning been pursued.

Commonwealth v. Feliciano, 69 A.3d 1270, 1275 (Pa. Super. 2013) (“It is

an appellant’s burden to persuade this Court that the PCRA court erred and

that relief is due.”) (citation omitted).   Indeed, Appellant has not even

alleged that such information would be impeaching, as there are a number

of reasons that could explain why Mark Mention provided his Mother’s

surname and address to the hospital (including that she was his emergency

contact). Thus, this ineffectiveness claim fails, and the PCRA court did not




believe, his mother’s address. At the time she was listed as an emergency
contact.”). Appellant does not dispute that the surname and address Mark
Mention provided were that of his mother.



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abuse its discretion in denying Appellant an evidentiary hearing on this

claim.2

      Appellant has failed to establish that he is entitled to relief.

Accordingly, we affirm the order of the PCRA court.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.

Prothonotary



Date: 8/24/2016




2
  Appellant argues that whether counsel had a reasonable basis for his
“fail[ure] to litigate the issues raised in the PCRA petition is a material issue
of fact” and that “[t]he only way to make such a determination would have
been for the court to have held an evidentiary hearing.” Appellant’s Brief at
13. Appellant further argues that because the court declined to hold a
hearing and “made no inquiry into the issue,” its decision was improper. Id.
Because Appellant is not entitled to a hearing as of right and “[t]he PCRA
court may deny an ineffectiveness claim if the petitioner’s evidence fails to
meet a single one of the[ ineffectiveness] prongs,” Franklin, 990 A.2d at
797, Appellant’s claim is meritless.


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