J-S57025-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

SAMUEL RICE,

                            Appellant               No. 2026 WDA 2015


                 Appeal from the PCRA Order December 2, 2015
               In the Court of Common Pleas of Allegheny County
              Criminal Division at No(s): CP-02-CR-0001851-2011


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

MEMORANDUM BY SHOGAN, J.:                        FILED OCTOBER 07, 2016

       Appellant, Samuel Rice, appeals from the order denying his petition for

collateral relief filed pursuant to the Post Conviction Relief Act (“PCRA”),

42 Pa.C.S. §§ 9541-9546. We affirm.

       A prior panel of this Court summarized the factual and procedural

history of this case as follows:

             On January 26, 2011, Stephen Mackowski and Susan
       Selzer decided to rob Appellant, a drug dealer from whom
       Mackowski had previously purchased narcotics.      Mackowski
       arranged to purchase a brick of heroin from Appellant and for
       the transaction to be consummated in a public parking lot.
       Mackowski placed items in the backseat of his car so that
       Appellant could not enter it during the drug transaction, and
       Selzer was located in the front passenger seat.

____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
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              Once Mackowski arrived at the designated location,
       Appellant approached the car and gave Mackowski the heroin.
       Mackowski handed the heroin to Selzer, ostensibly for her to
       inspect it, and Mackowski then started to drive away without
       paying Appellant for the drug. Appellant grabbed the window of
       the car, obtained his gun, and shot Mackowski, who died from
       his injuries, twice in the chest. Selzer removed the victim from
       the driver’s seat, drove home, and then called an ambulance.
       There was an independent eyewitness to the shooting.

             Appellant was charged with homicide, carrying an
       unlicensed firearm, reckless endangerment, and carrying a
       firearm by a prohibited person.         The latter charge was
       subsequently withdrawn. The case proceeded to a jury trial,
       where a mistrial was granted on August [17], 2011. Appellant
       elected to plead guilty to all pending charges. Since Appellant
       pled guilty to homicide generally, the matter proceeded to a
       degree-of-guilt hearing. The trial court concluded that Appellant
       was guilty of third-degree murder.

             Appellant was sentenced on December 7, 2011.            The
       sentencing court had the benefit of a presentence report.
       Appellant had prior convictions for receiving stolen property and
       possession of two illegal guns. It sentenced Appellant to: 1)
       seventeen-and-one-half to thirty-five years for third-degree
       murder; 2) a consecutive term of incarceration of nine to
       eighteen months for carrying a firearm without a license; and 3)
       a concurrent term of six to twelve months for reckless
       endangerment.

             At sentencing, the victim’s family sought burial expenses
       but did not have documentation supporting the amount of those
       expenses. The court imposed restitution of one dollar, but
       indicated that it was going to conduct another hearing to alter
       the amount of restitution to allow the family to recover funeral
       expenses. Appellant filed a timely post-sentence motion to the
       December 7, 2011 judgment of sentence.[1] The trial court
       thereafter held a restitution hearing on January 5, 2012. At that
       time, the amount of restitution was increased to $8,873.05.
____________________________________________


1
 The trial court denied Appellant’s post-sentence motion by order entered
December 22, 2011.



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Commonwealth v. Rice, 66 WDA 2012, 87 A.3d 891 (Pa. Super. filed

October 24, 2013) (unpublished memorandum at 1-3).

      Appellant filed a timely appeal on January 6, 2012.           This Court

affirmed   Appellant’s    judgment   of   sentence   on   October   24,    2013.

Commonwealth v. Rice, 66 WDA 2012, 87 A.3d 891 (Pa. Super. filed

October 24, 2013).

      Appellant filed a pro se PCRA petition on July 9, 2014. Counsel was

appointed, and an amended PCRA petition was filed on March 31, 2015. The

PCRA court issued a notice of intent to dismiss on November 6, 2015, and by

order entered December 2, 2015, the PCRA court dismissed Appellant’s

petition without a hearing. Appellant timely appealed. Both Appellant and

the trial court complied with Pa.R.A.P. 1925.

      Appellant presents the following issues for our review:

      I.    Is [Appellant’s] claim for relief properly cognizable under
      the Post-Conviction Relief Act?

      II.   Did the lower court err in dismissing the PCRA Petition
      without a hearing where [Appellant] presented a claim of
      ineffective assistance of counsel which contains arguable merit;
      specifically, counsel was ineffective for agreeing to stipulate to
      the prior trial testimony of key Commonwealth witnesses
      Kenneth Acrie and Suzan Selzer, thereby denying [Appellant] the
      rights guaranteed him by the Sixth and Fourteenth Amendments
      of the U.S. Constitution, and Article 1, Section 9 of
      Pennsylvania’s Constitution?

Appellant’s Brief at 5.




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      Our standard of review of an order denying PCRA relief is whether the

record supports the PCRA court’s determination and whether the PCRA

court’s determination is free of legal error. Commonwealth v. Phillips, 31

A.3d 317, 319 (Pa. Super. 2011) (citing Commonwealth v. Berry, 877

A.2d 479, 482 (Pa. Super. 2005)).        The PCRA court’s findings will not be

disturbed unless there is no support for the findings in the certified record.

Id. (citing Commonwealth v. Carr, 768 A.2d 1164, 1166 (Pa. Super.

2001)).

      Furthermore, “[t]he right to an evidentiary hearing on a post-

conviction petition is not absolute.”    Commonwealth v. Walls, 993 A.2d

289, 295 (Pa. Super. 2010).

      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.

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

citation omitted).

      In his first issue, Appellant asserts that he is eligible for relief under

the PCRA. Appellant’s Brief at 22. He contends that his petition was timely

filed and that he is currently serving a sentence of imprisonment.            Id.

Appellant’s   petition   challenges     the   effectiveness   of   counsel,   and


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ineffectiveness claims are cognizable under the PCRA.              Id.   Additionally,

Appellant maintains that this issue has not been previously litigated nor has

it been waived.       Id.     Thus, Appellant argues that his claim is cognizable

under the PCRA. Id.

       We agree with Appellant’s assertion that his claim for relief is

cognizable    under     the    PCRA.2      42 Pa.C.S. §§     9541-9546; see also

Commonwealth v. Lesko, 15 A.3d 345, 361 (Pa. 2011) (outlining criteria

for claims cognizable under the PCRA). Thus, we shall review the additional

issue Appellant presents on appeal.

       In his second issue, Appellant argues that the PCRA court erred in

dismissing his petition without a hearing where Appellant established the

merits of his claim that trial counsel was ineffective. Appellant’s Brief at 32.

Specifically, Appellant contends that counsel was ineffective for agreeing to

stipulate at the degree-of-guilt hearing to the prior trial testimony of

Commonwealth witnesses Kenneth Acrie and Suzan Selzer. Id. Appellant

asserts that “[b]ecause trial counsel failed to subject the prosecution’s case

to   meaningful,     adversarial    testing,   [Appellant]   was   deprived   of   his

confrontation rights as guaranteed by the federal and state constitutions.”

Id. at 25.      Appellant further maintains that counsel was ineffective for

stipulating to the prior trial testimony of Acrie and Selzer “insofar as he did
____________________________________________


2
 We note that there has been no suggestion by the Commonwealth or the
PCRA court that Appellant’s claim for relief is not cognizable under the PCRA.



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not cross-examine Acrie at all during the trial, and his cross-examination of

Selzer at trial did not touch upon the factual circumstances that became

relevant during the degree-of-guilt hearing.” Id. at 26. Appellant contends

that trial counsel did not have a reasonable basis for depriving Appellant of

his state and federal rights to confront and cross-examine adverse

witnesses. Id. at 32. Moreover, Appellant asserts that he was prejudiced

by counsel’s failure to cross-examine these witnesses at the degree-of-guilt

hearing. Id. Appellant posits that “there is a reasonable probability that but

for counsel’s error, [Appellant] would have been adjudged guilty of

Voluntary Manslaughter instead of Third Degree Murder.” Id. at 32-33.

      When considering an allegation of ineffective assistance of counsel

(“IAC”), counsel is presumed to have provided effective representation

unless the PCRA petitioner pleads and proves that: (1) the underlying claim

is of arguable merit; (2) counsel had no reasonable basis for his or her

conduct; and (3) petitioner was prejudiced by counsel’s action or omission.

Commonwealth v. Spotz, 84 A.3d 294, 311 (Pa. 2014). “In order to meet

the prejudice prong of the ineffectiveness standard, a defendant must show

that there is a ‘reasonable probability that but for counsel’s unprofessional

errors,   the   result   of   the   proceeding   would   have   been   different.’”

Commonwealth v. Reed, 42 A.3d 314, 319 (Pa. Super. 2012). A claim of

ineffective assistance of counsel will fail if the petitioner does not meet any

one of the three prongs. Commonwealth v. Simpson, 66 A.3d 253, 260


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(Pa. 2013).     “The burden of proving ineffectiveness rests with Appellant.”

Commonwealth v. Rega, 933 A.2d 997, 1018 (Pa. 2007).

     The PCRA court provided the following analysis of Appellant’s claim:

           Even assuming, for the sake of argument, that [Appellant]
     could establish the first two (2) prongs of the [IAC] test,
     [Appellant] has failed to prove that he was actually prejudiced by
     counsel’s stipulation because he cannot show that the stipulation
     could have reasonably had an adverse effect on the outcome of
     the proceedings.

           With respect to Mr. Acrie’s testimony, [Appellant] argues
     that counsel failed to conduct any cross examination into “the
     conditions under which Acrie purportedly made his observations
     – the short period of time that elapsed during the incident, the
     limited view in his rearview mirror as he was driving away, that
     he couldn’t have seen [Appellant’s] hands at all, and the fact
     that he didn’t actually see a shooting.” [Appellant] also argues
     that counsel failed to “address the inconsistencies in Acrie’s
     testimony as to the order in which the events transpired, and
     whether [Appellant] was being dragged along, or was hanging
     onto the car.”

           Contrary to [Appellant’s] assertions, counsel’s stipulation
     to Mr. Acrie’s testimony did not prejudice [Appellant]:

                     First, with respect to the issue of counsel’s
              decision not to cross-examine Mr. Acrie regarding his
              observations, the court notes that Mr. Acrie was
              candid about the circumstances surrounding his
              observations, and at no point during his direct
              examination did he suggest that he had a perfect,
              unobstructed, and continuous view of the encounter.
              To the contrary, Mr. Acrie admitted that he could not
              identify the shooter or the individuals in the car, that
              he observed what he believed to be a shooting from
              the rear-view mirror of his vehicle as he was still
              driving, and that he could not see any object in the
              shooter’s hands.      These factors all weighed in
              [Appellant’s] favor.        Accordingly, since the
              weaknesses in Mr. Acrie’s view were clearly
              established through his direct examination, Counsel’s

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          strategic decision to forego cross-examination and
          stipulate to his testimony at the Hearing was
          inconsequential.

                Furthermore, this court was well-familiar with
          the limitations of Mr. Acrie’s observations since it
          presided over the trial and paid careful attention to
          the testimony presented. This court specifically took
          into account the circumstances surrounding Mr.
          Acrie’s view of the incident in making its credibility
          determinations and rendering its verdict at the
          Hearing.

                 Second, notwithstanding Mr. Acrie’s view of the
          incident, Mr. Acrie testified credibly and confidently
          that he heard a screeching of the vehicle and then
          heard the shots being fired. Mr. Acrie’s testimony
          regarding this sequence of events was entirely
          consistent with Mrs. Selzer’s testimony. Mrs. Selzer
          testified that, before any shots were fired, the car
          had already stopped moving in a forward direction.

                 Finally, the fact that counsel did not question
          Mr. Acrie as to whether [Appellant] was hanging on
          to the vehicle or was being dragged is immaterial
          given that Mr. Acrie testified at numerous points that
          it looked like the individual was being “dragged”
          along by the car because the vehicle was moving too
          fast for the individual to have been running with the
          car. Moreover, [Appellant] took the stand at the
          Hearing and insisted that he was being dragged
          along by the vehicle and was not voluntarily hanging
          on to the vehicle throughout the entire incident. The
          court notes that, in rendering its verdict, it gave
          [Appellant] the benefit of the doubt and accepted
          that [Appellant] had, at one point, been dragged
          along by the vehicle prior to the vehicle stopping its
          forward motion. Accordingly, the issue of whether
          [Appellant] was dragged by the vehicle is a moot
          point, and counsel’s lack of inquiry into that issue did
          not prejudice [Appellant] in any way.

           With respect to Mrs. Selzer’s testimony, [Appellant] argues
     that counsel “failed to address the inconsistencies in her version

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     of the events” and “did not ask for the details on the order of
     events, or the timing and nature of [Appellant’s] actions.”

           Contrary to [Appellant’s] contention, counsel conducted a
     thorough and lengthy cross-examination of Mrs. Selzer at trial.
     Counsel questioned her regarding inconsistencies in her
     testimony, the sequence of events, [Appellant’s] conduct, and
     her bias and motive to lie. Thus, the introduction of Mrs.
     Selzer’s trial testimony at the Hearing did not prejudice
     [Appellant] because the facts relevant to the court’s
     determination of culpability with respect to her testimony had
     already been established at trial.

            Against this backdrop, the court finds that counsel’s
     stipulation to the testimony of Mr. Acrie and Mrs. Selzer at the
     Hearing did not actually prejudice [Appellant] because there is
     no reasonable probability that the live testimony of these
     witnesses would have led this court to reach a different verdict
     at the Hearing. The court had ample opportunity to assess the
     reliability and credibility of these witnesses and the court was
     well-aware of any discrepancies in the witness testimony.
     However, it was the duty of this court, as the fact-finder, to
     resolve those discrepancies, and a fact-finder is entitled to
     believe all, part, or none of a witness’ testimony.

Notice of Intent to Dismiss, 11/6/15, at 3-6 (emphasis in original) (internal

paragraph numbering and citations omitted).

     The PCRA court’s analysis is supported by the evidence of record. We

agree with the PCRA court’s conclusion that Appellant has failed to establish

that he was prejudiced by counsel’s decision to stipulate at the degree-of-

guilt hearing to the witnesses’ trial testimony. Because Appellant has failed

to establish that he suffered prejudice as a result of counsel’s actions, his

IAC claim fails. See Rega, 933 A.2d at 1018 (“a failure to satisfy any prong

of the ineffectiveness test requires rejection of the claim.”).    Moreover,

because there were no genuine issues concerning any material fact, the

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PCRA court was not required to conduct a hearing prior to dismissing

Appellant’s petition. Wah, 42 A.3d at 338.

     Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/7/2016




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