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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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

    SCOTT FITZGERALD

                      Appellant                       No. 2485 EDA 2018

               Appeal from the PCRA Order Entered July 18, 2018
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0001789-2015


BEFORE:      BENDER, P.J.E., GANTMAN, P.J.E., and COLINS*, J.

MEMORANDUM BY GANTMAN, P.J.E.:                            FILED JULY 26, 2019

        Appellant, Scott Fitzgerald, appeals from the order entered in the

Philadelphia County Court of Common Pleas, which denied his first petition

brought pursuant to 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.

           On September 28, 2014, at around 12:50 a.m., [Victim] was
           in a bar in the train station called the Field House with a
           group of friends. [Appellant's] companion, later identified
           as Thomas Quinn, and [Victim's] friend, Anthony Procopio,
           got into a confrontation regarding [Mr. Quinn's] actions
           towards [Mr.] Procopio's girlfriend, Ashley Fanelli. [Mr.]
           Quinn hit [Mr.] Procopio in the jaw. [Victim] stepped toward
           [Mr. Procopio] when [Victim] saw [Mr. Procopio's] head go
           back and his glasses fly off. [Victim] stepped in front of [Mr.
           Procopio], to get between him and [Mr.] Quinn, at which
           time [Victim] was struck by [Appellant] and everything went
           black for [Victim]. [Victim] fell straight back and hit his
           head on the floor.      [Victim] was briefly in and out of
           consciousness, regaining full consciousness in a hospital

      Retired Senior Judge assigned to the Superior Court.
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           room. No one in [Victim's] group struck [Appellant] or [Mr.]
           Quinn. [Appellant] was substantially larger than [Victim].

           [Victim's] friends called 911 and the police and [EMTs]
           responded.

           [Victim] testified that he hadconcussion, a fractured nose,
                                                a
          a sprained neck and a large cut on the back of his head for
          which he received sutures, that his balance was off for
          several days leaving him unable to walk, that he wore a neck
          brace and that he suffered some short term memory loss
          and loss of coordination. [Victim] was in the hospital for
          two days and was out of work for three weeks. The medical
          records demonstrated that [Victim] also suffered from a
          subarachnoid hemorrhage,        frontal lobe contusions,
          posterior scalp laceration, concussion, cervical sprain and
          nasal bone fracture. [Victim] received four sutures for the
          scalp laceration.

(Trial Court Opinion, filed March 6, 2017, at 2) (internal citations omitted)

        Following   a   bifurcated waiver trial, the court convicted Appellant on April

29, 2016, of one count each of aggravated assault, simple assault, and

recklessly endangering another person ("REAP"). On August 16, 2016, the

court sentenced Appellant to         111/2   to 23 months' incarceration plus 8 years'

probation; the court immediately paroled Appellant to house arrest. Appellant

retained new counsel, who filed         a    post -sentence motion on August 26, 2016.

On November 23, 2016, the court denied Appellant's post -sentence motion.

Appellant timely filed      a   notice of appeal on December 19, 2016, however, on

the advice of counsel, Appellant discontinued his appeal on May 1, 2017.

        On October 11, 2017, Appellant          timely filed   a   counseled PCRA petition.

Appellant filed an amended PCRA petition on June 4, 2018, which alleged

ineffective assistance of trial counsel, based on counsel's failure to hire an

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expert to establish Victim had      a   pre-existing brain injury, to rebut that

Appellant caused serious bodily injury to Victim. On June 15, 2018, the PCRA

court issued notice of its intent to dismiss pursuant to Pa.R.Crim.P. 907;

Appellant responded on July 6, 2018.         On July 18, 2018, the PCRA court

dismissed Appellant's petition.    Appellant timely filed   a    notice of appeal on

August 9, 2018. The PCRA court did not order and Appellant did not file                  a


concise statement of errors complained of on appeal pursuant to Pa.R.A.P.

1925(b).

        Appellant raises the following issue on appeal:

           DID THE PCRA COURT ERR BY DISMISSING [APPELLANT'S]
           PETITION WITHOUT A HEARING WHERE HE ADEQUATELY
           [PLED] HIS CLAIM THAT HIS TRIAL COUNSEL WAS
           INEFFECTIVE FOR FAILING TO RETAIN AN EXPERT WITNESS
           AND GENUINE ISSUES OF MATERIAL FACT EXIST?

(Appellant's Brief at 2).

        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, 109 (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

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

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


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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, 338 (Pa.Super. 2012); Pa.R.Crim.P. 907.

        Appellant argues he suffered prejudice from trial counsel's failure to

present evidence of Victim's pre-existing head injury. Appellant contends the

record does not support        a   finding of his intent to cause serious bodily injury,

where the evidence did not show Appellant was "disproportionately larger"

than Victim, that Appellant acted with "particular viciousness," or that Victim

did not see Appellant approach.

        Appellant maintains his now -proffered expert, Dr. Guzzardi, would

distinguish Victim's pre-existing head injury from the injuries Appellant

inflicted.   Appellant continues Dr. Guzzardi's testimony would show Victim

suffered from multiple symptoms prior to the current incident, such that the

injuries Appellant caused were not within the meaning of serious bodily injury.

Appellant avers he suffered prejudice because the court could not have found

Appellant inflicted serious bodily injury if counsel had presented evidence or

expert testimony of Victim's pre-existing injuries. Appellant concludes this

Court should reverse the order denying PCRA relief and order                    a    new trial or

an evidentiary hearing. We disagree.

        To be eligible for relief under the PCRA, the petitioner must plead and



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prove his conviction resulted from one or more of the grounds set forth in 42

Pa.C.S.A.     §   9543(a)(2)(i)-(viii). Commonwealth v. Zook, 585                        Pa. 11, 25,

887 A.2d 1218, 1226 (2005).                     "Generally, an appellant may not raise

allegations of error in an appeal from the denial of PCRA relief as if he were

presenting the claims on direct appeal." Commonwealth v. Price, 876 A.2d

988, 995 (Pa.Super. 2005), appeal denied, 587 Pa. 706, 897 A.2d 1184

(2006), cert. denied, 549 U.S. 902, 127 S.Ct. 224, 166 L.Ed.2d 179 (2006)

(holding petitioner's challenge to sufficiency of evidence is not cognizable

under PCRA); Commonwealth v. Bell, 706 A.2d 855 (Pa.Super. 1998),

appeal denied, 557         Pa.   624, 732 A.2d 611 (1998) (stating sufficiency of

evidence claims are not cognizable under PCRA). Straightforward challenges

to the sufficiency and weight of the evidence are not enumerated errors listed

in   the PCRA. 42 Pa.C.S.A.        §   9543(a)(2)(i)-(viii).

        The       law   presumes       counsel     has       rendered        effective   assistance.

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

traditional analysis, to prevail on         a   claim of ineffective assistance of counsel,

a    petitioner bears the burden 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                 is   of 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


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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
          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).

          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

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          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
          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).

          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.

Commonwealth v. Sneed, 616            Pa.    1, 23, 45 A.3d 1096, 1109          (2012)

(internal citations and quotation marks omitted).

        The Pennsylvania Crimes Code defines aggravated assault as follows:


           §    2702. Aggravated assault

                (a)   Offense   defined.-A          person   is   guilty   of

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           aggravated assault if he:

                       (1)   attempts to cause serious bodily injury to
                another, or causes such injury intentionally, knowingly or
                recklessly under circumstances manifesting extreme
                indifference to the value of human life;



18 Pa.C.S.A. § 2702(a)(1).        According to the statute,    a       person is guilty of

aggravated assault if he "attempts to cause serious bodily injury to another,

or     causes    such   injury   intentionally,   knowingly   or        recklessly   under

circumstances manifesting extreme indifference to the value of human life."

Id. (emphasis added); Commonwealth.               v. Payne, 868 A.2d 1257, 1261

(Pa.Super. 2005), appeal denied, 583 Pa. 681, 877 A.2d 461 (2005). "Serious

bodily injury" is defined as "[b]odily injury which creates        a    substantial risk of

death or which causes serious, permanent disfigurement, or protracted loss

or impairment of the function of any bodily member or organ." 18 Pa.C.S.A.

§   2301. Further, we observe:

           Looking first to whether evidence established intent to cause
           serious bodily injury, we note that such an inquiry into intent
           must be determined on a case -by -case basis. Because
           direct evidence of intent is often unavailable, intent to cause
           serious bodily injury may be shown by the circumstances
           surrounding the attack. In determining whether intent was
           proven from such circumstances, the fact finder is free to
           conclude the accused intended the natural and probable
           consequences of his actions to result therefrom.

           Circumstances deemed probative in this inquiry have
           included evidence that the assailant was disproportionately
           larger or stronger than the victim, that the assailant had to
           be restrained from escalating his attack, that the assailant
           had a weapon or other implement to aid his attack, or that

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           the assailant made statements before, during, or after the
           attack which might indicate his intent to inflict further injury.
           Depending on the circumstances, even a single punch may
           be sufficient.

Commonwealth v. Bruce, 916 A.2d 657, 661-62 (Pa.Super. 2007), appeal
denied, 593 Pa. 754, 932 A.2d 74 (2007) (internal citations and quotation

marks omitted).

         Where   the   victim   actually suffers serious bodily injury, the
Commonwealth is not required to prove the defendant acted with the specific

intent to cause the victim's injuries. Commonwealth v. Nichols, 692 A.2d

181, 185 (Pa.Super. 1997).

           The     Commonwealth need only prove appellant acted
            recklessly under circumstances manifesting an extreme
            indifference to the value of human life. For the degree of
            recklessness contained in the aggravated assault statute to
            occur, the offensive act must be performed under
            circumstances which almost assure that injury or death will
            ensue.

Id. at   185 (internal citations and quotation marks omitted). In other words,

the Commonwealth must show "the defendant consciously disregarded an

unjustified and extremely high risk that his actions might cause death or

serious bodily harm.       This state of mind may be inferred from conduct,

[disregard] of consequences, or the cruelty of the crime." Payne, supra at

1261 (internal citations and quotation marks omitted).

         Instantly, after Victim interceded   in an   argument between two groups,

Appellant struck Victim in the face.       Victim lost consciousness, fell straight

backward, and hit his head on the floor.         Essentially, Appellant delivered   a


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knockout punch to Victim.          Victim sustained       a   concussion, fractured nose,

cervical sprain, and subarachnoid hemorrhage.                     Victim remained in the

hospital for two days and did not return to work for three weeks.

        Here, to the extent Appellant presents        a       portion of his argument as   a


straightforward challenge to the sufficiency of the evidence, his claim                    is

arguably waived. A sufficiency of the evidence claim               is   not cognizable under

the PCRA; therefore, this portion of Appellant's argument is arguably waived.

See 42 Pa.C.S.A.       §   9543(a); Price, supra.

        To the extent Appellant presents his entire argument under the rubric

of ineffective assistance of counsel, the PCRA court analyzed Appellant's issue

as follows:

          [Appellant] alleges that his trial counsel was ineffective for
          failing to obtain medical records of [Victim] and present
          expert testimony showing that [Victim] had a pre-existing
          brain injury, which was not caused by [Appellant]. The
          evidence at trial demonstrated that [Victim] was struck by
          [Appellant] and everything went black for [Victim]. [Victim]
          fell straight back and hit his head on the floor. [Victim was
          briefly in [and] out of consciousness, regaining full
          consciousness in a hospital room. No one in [Victim's] group
          struck [Appellant]. [Appellant] was substantially larger than
           [Victim].

           ... The evidence demonstrates the requisite intent, an
          attempt to cause serious bodily injury and, even without the
          concussion     evidence, actual serious bodily injury
          intentionally or recklessly cause[d]. Although [Appellant]
          struck only one blow, [Victim] suffered significant injury:
          posterior scalp laceration, cervical sprain and nasal bone
          fracture.    [Victim] received four sutures for the scalp
          laceration. [Victim's] balance was off for several days
          leaving him unable to walk, he was required to wear a neck
          brace, and he suffered some short term memory loss and

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          loss of coordination. [Victim] also was left without memory
          of the blow and the events thereafter. [Victim] was in the
          hospital for two days and was out of work for three weeks.
          ... The injuries caused by [Appellant] meet [the] definition
          [of serious bodily injury].

          Moreover, even if the injuries did not constitute serious
          bodily injury, the evidence supports a finding that the blow
          was [delivered] with the intent to inflict serious bodily
          injury. Here, ...there was evidence that [Appellant] was
          disproportionately larger tha[n Victim]. ... [Victim] never
          saw the punch coming, and the punch was so forceful that
          it caused [Victim] to fall, strike his head and lose
          consciousness.



          Here, [Victim] was not even aware of [Appellant]. [Victim]
          was attempting to deescalate an incident, when [Appellant]
          hit him with a blow [Victim] never saw coming. That blow
          struck by [Appellant] was so aimed to harm, that it left
          [Victim] essentially out on his feet as he fell straight back,
          dead-weight, unable to break his fall. As the [c]ourt noted
          in pronouncing the verdict: "[The] evidence in this case as
          a whole...prove[d] instead an unprovoked attack, with
          particular viciousness, even i[f] just one punch."



          None of the facts set forth...[is] rebutted by the evidence of
          pre-existing brain injury or [Appellant's] expert's opinions.
          Accordingly, even if trial counsel had presented evidence
          and expert testimony regarding a pre-existing brain injury,
          the evidence at trial would have still demonstrated both that
          [Appellant] attempted to cause serious bodily injury and,
          whether intentionally or recklessly, ...did in fact do so.
          Either [intent to cause serious bodily injury or causing
          serious bodily injury] is sufficient to sustain the
          [conviction]....     Because trial counsel cannot be found
          ineffective for failing to pursue a meritless claim, [Appellant]
          is not entitled to relief.

(PCRA Court Order, filed July 18, 2018, at         1   n.1 unpaginated) (internal
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citations and some quotation marks omitted). The record supports the PCRA

court's analysis.       See 18 Pa.C.S.A.   §   2702(a)(1); Sneed, supra; Pierce,

supra; Bruce, supra; Payne, supra; Poplawski, supra; Nichols, supra.
Therefore, the PCRA court properly denied relief.          See Conway, supra.

Accordingly, we affirm.

        Order affirmed.

Judgment Entered.




J    seph D. Seletyn,
Prothonotary



Date: 7/26/19




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