J-S74024-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT
                                                      OF PENNSYLVANIA
                             Appellee

                        v.

    JARVAY M. DAVIS

                             Appellant                No. 1230 EDA 2018


               Appeal from the PCRA Order entered April 17, 2018
              In the Court of Common Pleas of Philadelphia County
                Criminal Division at No: CP-51-CR-0008720-2009


BEFORE: LAZARUS, J., STABILE, J., and McLAUGHLIN, J.

MEMORANDUM BY STABILE, J.:                        FILED FEBRUARY 14, 2019

        Appellant, Jarvay M. Davis, appeals from the April 17, 2018 order of the

Court of Common Pleas of Philadelphia County denying his petition for

collateral relief under the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A.

§§ 9541-46. Appellant argues that the PCRA court erred in not holding an

evidentiary hearing on his claim of ineffective assistance of counsel. We

disagree. Accordingly, we affirm.

        The underlying facts and procedural history are uncontested. Briefly,

on July 19, 2012, Appellant pled guilty to attempted burglary, conspiracy to

commit burglary, and possession of an instrument of crime.1 The trial court

imposed three sentences of one to five years of incarceration, two of which



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1   18 Pa.C.S.A. §§ 901, 3502, 903, and 907, respectively.
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ran concurrently with another sentence Appellant was serving, and one of

which ran consecutively. Appellant did not file a direct appeal.

       Appellant filed the underlying PCRA petition, his first, on May 30, 2013.

The PCRA court appointed counsel on February 18, 2014, and counsel filed an

amended petition on August 10, 2014. “The claim presented [in the amended

petition] was stated the same as is stated in the [Pa.R.A.P. 1925(b)]

statement [i.e., plea counsel was ineffective for divulging confidential

information to prosecutor,] followed by a request for an evidentiary hearing

in order to determine what information was relayed to the prosecution and

how it affected the sentence.” PCRA Court Opinion, 6/13/18, at 3 (quotation

marks omitted).2

       After issuing a notice to dismiss, the PCRA court, on March 21, 2016,

denied the petition as untimely.          On appeal, we disagreed with the PCRA

court’s finding of untimeliness, and remanded to the PCRA court to address

the merits of the petition. See Commonwealth v. Davis, No. 1036 EDA

2016, unpublished memorandum (Pa. Super. March 13, 2017).

       After remand, on April 17, 2017, the PCRA court denied Appellant’s

PCRA petition. This appeal followed.

       On appeal, Appellant argues that the PCRA court erred in not holding a

hearing on his PCRA petition in which he alleged ineffective assistance of plea
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2 “The amended petition did not include the identification of any evidence in
support of the claim, other than [a] single citation to the plea/sentencing
hearing notes. PCRA Court Opinion, 6/13/18, at 3. Elsewhere, the PCRA court
characterizes the citation to the sentencing transcript as “cryptic.” Id.

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counsel.   Specifically, as noted, Appellant claims that plea counsel was

ineffective for sharing with the prosecutor confidential information Appellant

related to plea counsel.     For the reasons stated below, we conclude that

Appellant is entitled to no relief.

      On review, we must determine whether the record supports the PCRA

court’s findings and whether the court’s ruling is free of legal error.

Commonwealth v. Edmiston, 65 A.3d 339, 345 (Pa. 2013), cert. denied,

571 U.S. 1026 (2013).

      Regarding the ineffective assistance of counsel claim, we note that “[i]t

is well-established that counsel is presumed effective and a PCRA petitioner

bears the burden of proving ineffectiveness.”     Commonwealth v. Reyes-

Rodriguez, 111 A3d 775, 779-80 (Pa. Super. 2015) (en banc) (citations and

brackets omitted).

      To prevail on an [ineffective assistance of counsel] claim, a PCRA
      petitioner must plead and prove by a preponderance of the
      evidence that (1) the underlying legal claim has arguable merit;
      (2) counsel had no reasonable basis for acting or failing to act;
      and     (3)    the   petitioner     suffered    resulting prejudice.
      Commonwealth v. Baumhammers, 92 A.3d 708, 719 (Pa.
      2014) (citing [Commonwealth v. Pierce, 527 A.2d 973, 975–76
      (Pa. 1987)]). A petitioner must prove all three factors of the
      “Pierce test,” or the claim fails. Id. In addition, on appeal, a
      petitioner must adequately discuss all three factors of the “Pierce
      test,” or the appellate court will reject the claim. Commonwealth
      v. Fears, [86 A.3d 795, 804 (Pa. 2014)].

Id. at 780.

      Finally, we review claims of denial of a request to hold a hearing as

follows:

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       The PCRA court has the discretion to dismiss a petition without a
       hearing when the court is satisfied “that there are no genuine
       issues concerning any material fact, the defendant is not entitled
       to post-conviction collateral relief, and no legitimate purpose
       would be served by further proceedings.” Commonwealth v.
       Paddy, [15 A.3d 431, 442 (Pa. 2011)] (quoting Pa.R.Crim.P.
       909(B)(2)). “To obtain reversal of a PCRA court’s decision to
       dismiss a petition without a hearing, an appellant must show that
       he raised a genuine issue of fact which, if resolved in his favor,
       would have entitled him to relief, or that the court otherwise
       abused its discretion in denying a hearing.”        Id. (quoting
       Commonwealth v. D’Amato, [856 A.2d 806, 820 (Pa. 2004)]).
       We stress that an evidentiary hearing “is not meant to function as
       a fishing expedition for any possible evidence that may support
       some speculative claim of ineffectiveness.” Commonwealth v.
       Jones, [811 A.2d 994, 1003 n.8 (Pa. 2002)] (citation omitted).
       In Jones, we declined to remand for an evidentiary hearing when
       the appellant merely asserted that counsel did not have a
       reasonable basis for his lack of action but made no proffer of
       evidence as to counsel’s lack of action.

Commonwealth v. Roney, 79 A.3d 595, 604-05 (Pa. 2013).3

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3 See also Pa.R.Crim.P. 907(1) (Disposition without Hearing), which in
relevant part provides:

       [T]he judge shall promptly review the petition, any answer by the
       attorney for the Commonwealth, and other matters of record
       relating to the defendant’s claim(s). If the judge is satisfied from
       this review that there are no genuine issues concerning any
       material fact and that the defendant is not entitled to post-
       conviction collateral relief, and no purpose would be served by any
       further proceedings, the judge shall give notice to the parties of
       the intention to dismiss the petition and shall state in the notice
       the reasons for the dismissal. The defendant may respond to the
       proposed dismissal within 20 days of the date of the notice. The
       judge thereafter shall order the petition dismissed, grant leave to
       file an amended petition, or direct that the proceedings continue.

Pa.R.Crim.P. 907(1).




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       A review of Appellant’s filings, including his appellate brief, reveals that

Appellant mentioned the first prong of the ineffective assistance of counsel

standard in his filings, failing, however, to provide any discussion regarding

the other two prongs (i.e., rational basis and prejudice).4 Under the above

authorities, we must conclude that Appellant’s claim is waived for failure to

plead and prove by a preponderance of the evidence all prongs of the

ineffective assistance of counsel test. See also Commonwealth v. Bracey,

795 A.2d 935, 940 n.4 (Pa. 2001) (failure to meaningfully discuss and apply

the standard governing the review of ineffectiveness claims does not satisfy

petitioner’s burden of establishing he is entitled to relief).

       To the extent Appellant addressed the first prong, we note that

Appellant failed to show that his claim has merit by a preponderance of

evidence. Indeed, the Appellant does not even state that he has a claim, let

alone a meritorious one. The entire argument in support to his claim consists

of the following:       “Whether or not” plea counsel disclosed confidential

information to the prosecutor raises a material issue of fact, which required a



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4 Similarly, the PCRA court found that Appellant “made no attempt to support
the bald claim of trial counsel’s alleged breach of confidentiality with any
record evidence or references to any that may exist elsewhere[.]” PCRA Court
Opinion, 6/13/18, at 11. This finding is consistent with Appellant’s own
argument: “There is absolutely nothing in the record for the court to make a
determination. . . . The only way to make such a determination would have
been for the court to have held an evidentiary hearing.” Appellant’s Brief at
15.


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hearing. Appellant’s Brief at 15. Having failing to hold a hearing, the PCRA

court’s denial of relief must be reversed. Id.

       Appellant fundamentally misapprehends what he needs to plead and

prove in his PCRA petition to get an evidentiary hearing and the purpose of a

hearing on a PCRA petition.

       In the context of ineffective assistance of counsel claims, it is well-

established that counsel’s effectiveness is presumed, and that petitioner must

plead and prove by a preponderance of the evidence that counsel was not

effective. Failure to do so results in a dismissal of the petition.

       To avoid such a result, “counsel must set forth an offer to prove
       at an appropriate hearing sufficient facts upon which a reviewing
       court can conclude that trial counsel may have, in fact, been
       ineffective.” Commonwealth v. Pettus, [424 A.2d 1332, 1335
       (Pa. 1981)]. However, “[t]he controlling factor in determining
       whether a petition may be dismissed without a hearing is the
       status of the substantive assertions in the petition.”
       Commonwealth v. Weddington, [522 A.2d 1050, 1052 (Pa.
       1987)].

Commonwealth v. Stanley, 632 A.2d 871, 872 (Pa. 1993).

       Here, Appellant did not set forth an offer to prove the alleged breach of

confidentiality.5   Indeed,     Appellant      acknowledged   that   he   needed   an

evidentiary hearing to determine whether plea counsel disclosed confidential

information and the impact of the breach, if any.             PCRA Court Opinion,


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5As noted above, Appellant acknowledged that the record is devoid of any of
such evidence. “There is absolutely nothing in the record for the court to
make a determination.” Appellant’s Brief at 15.


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6/13/18, at 3; Appellant’s Brief at 15. Petitioner must set forth an offer of

facts supporting his/her claim in the petition, as an evidentiary hearing “is not

meant to function as a fishing expedition for any possible evidence that may

support some speculative claim of ineffectiveness.” Jones, 811 A.2d at 1003

n.8.

       In light of the foregoing, we conclude that the PCRA court did not err in

dismissing Appellant’s PCRA petition without holding a hearing.

       Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/14/19




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