J-S58009-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA              :   IN THE SUPERIOR COURT OF
                                           :        PENNSYLVANIA
                                           :
              v.                           :
                                           :
                                           :
 FRANK MCGINNIS                            :
                                           :
                    Appellant              :   No. 188 WDA 2019

            Appeal from the PCRA Order Entered January 7, 2019
             In the Court of Common Pleas of Allegheny County
            Criminal Division at No(s): CP-02-CR-0007327-2011


BEFORE: PANELLA, P.J., BENDER, P.J.E., and DUBOW, J.

MEMORANDUM BY PANELLA, P.J.:                     FILED DECEMBER 20, 2019

      Frank McGinnis appeals from the denial of his first petition filed pursuant

to the Post-Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546.

Appellant raises six claims for relief, four alleging ineffective assistance of

counsel, one arguing a claim of after-discovered evidence claim, and one claim

of cumulative prejudice. After careful review, we affirm.

      Appellant’s conviction stems from the events surrounding his assault on

Madora Albert, his ex-girlfriend with whom he resided. Upon coming home

from work, Appellant grew angry with Albert because she had not cooked him

dinner. He then beat her on the front porch of her home, hitting her in the

head and face with a heavy furnace pipe, and threatened to kill her. Albert

suffered serious injuries including contusions and a broken jaw.

      A jury convicted Appellant of aggravated assault, but acquitted him of

attempted murder. The trial court, with the benefit of a presentence
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investigation report (PSI), applied a deadly weapons enhancement and

imposed a standard guideline range sentence of not less than nine nor more

than twenty years in prison.

      On direct appeal, this Court affirmed Appellant’s judgment of sentence,

finding there was no merit to his challenges to the sufficiency and weight of

the evidence to support his conviction, and that he waived his challenge to

the discretionary aspect of his sentence.

      Appellant filed a timely pro se first PCRA petition. The PCRA court

appointed counsel, who filed an amended petition. After giving notice of its

intention to dismiss pursuant to Pa.R.Crim.P. 907(1) for lack of merit, the

PCRA court dismissed Appellant’s petition without a hearing. This timely

appeal followed.

      Appellant raises six issues on appeal:

      I. Whether the PCRA [c]ourt erred in summarily dismissing
      Appellant’s contention that trial counsel was ineffective in failing
      to investigate and properly cross-examine Commonwealth
      witnesses and in failing to obtain and present affirmative evidence
      establishing both that the victim’s jaw had been broken on a prior
      occasion and that fibromyalgia does not result from traumatic
      injury, where the evidence would have materially impeached the
      prosecutions sole eyewitness to the assault[?]

      II. Whether the PCRA [c]ourt erred in summarily dismissing
      Appellant’s contention that trial counsel was ineffective in failing
      to secure the 911 call records from the Allegheny County
      Department of Emergency Services, where those records
      confirmed that the testimonies of both the police and victim were
      seriously flawed and unreliable in numerous material respects[?]

      III. Whether the PCRA [c]ourt erred in summarily dismissing the
      claims that trial counsel was ineffective in prejudicially displaying
      and mishandling a pipe exhibit in the jury’s presence and also in

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      exhibiting to the jury an otherwise unauthenticated,
      inflammatory, prejudicial and inadmissible photograph purporting
      to be of the alleged victim which depicted extremely disturbing
      injuries of an unrecognizable person. And whether Appellant was
      entitled to an evidentiary hearing and subpoena ability to
      demonstrate his entitlement to relief[?]

      IV. Whether the PCRA [c]ourt erred in summarily dismissing the
      claims that prior counsel were remiss in failing to object to and to
      preserve a meritorious challenge to the sentence, which imposed
      a deadly weapon enhancement without prior notice and which
      Appellant averred had been imposed outside his presence and
      only after his sentencing[?]

      V. Whether, alternatively, the PCRA [c]ourt erred in summarily
      denying Appellant’s claims that he was entitled to a new trial
      based upon the after-discovered medical information and 911 call
      records, where that evidence would have materially impeached
      the prosecution’s sole eyewitness to the assault[?]

      VI. Whether the PCRA [c]ourt erred in summarily dismissing the
      claims that Appellant was entitled to relief based upon the
      cumulative instances of trial counsel ineffectiveness and the
      totality of the exculpatory evidence that was unavailable due to
      trial counsel’s ineffectiveness[?]

Appellant’s Brief, at 5 (questions reordered for ease of disposition).

      To the extent review of the PCRA court’s determinations is
      implicated, an appellate court reviews the PCRA court’s findings of
      fact to determine whether they are supported by the record, and
      reviews its conclusions of law to determine whether they are free
      from legal error. The scope of review is limited to the findings of
      the PCRA court and the evidence of record, viewed in the light
      most favorable to the prevailing party at the trial level.

Commonwealth v. Spotz, 84 A.3d 294, 311 (Pa. 2014) (internal quotation

marks and citations omitted).

      We review the denial of PCRA relief for a determination of whether
      the PCRA court’s findings are supported by the record and free of
      legal error. A petitioner is eligible for PCRA relief only when he
      proves by a preponderance of the evidence that his conviction or



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      sentence resulted from one or more of the circumstances
      delineated in 42 Pa.C.S.[A.] § 9543(a)(2).

Commonwealth v. Johnson, 179 A.3d 1105, 1113 (Pa. Super. 2018),

appeal denied, 197 A.3d 1174 (Pa. 2018) (some citations and formatting

omitted).

      In his first four issues, Appellant argues that he is entitled to relief

because of the ineffectiveness of prior counsel.

            To be eligible for relief under the PCRA, an appellant must
      prove that his conviction resulted from one of several enumerated
      events, including the ineffective assistance of counsel.

            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. See Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d
      973, 975-76 (1987); Strickland v. Washington, 466 U.S. 668,
      104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The PCRA court may deny
      an ineffectiveness claim if “the petitioner’s evidence fails to meet
      a single one of these prongs.” Commonwealth v. Basemore,
      560 Pa. 258, 744 A.2d 717, 738 n.23 (2000). . . . Because courts
      must presume that counsel was effective, it is the petitioner’s
      burden to prove otherwise.

Id. at 1113-14 (some citations and formatting omitted).

      “Arguable merit exists when the factual statements are accurate and

could establish cause for relief. Whether the facts rise to the level of arguable

merit is a legal determination.” Commonwealth v. Barnett, 121 A.3d 534,

540 (Pa. Super. 2015) (internal quotation marks and citations omitted).




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      In his first issue, Appellant claims that trial counsel was ineffective for

failing to investigate and cross-examine the victim about allegedly having

broken her jaw in the past, and the alleged lack of correlation between the

attack and her fibromyalgia. He claims that information that he hoped to elicit

on cross-examination would have been enough to raise a reasonable doubt.

See Appellant’s Brief, at 16-25. We disagree.

      As the PCRA court aptly notes, Appellant “has not provided any evidence

to support his claim that the victim suffered a broken jaw previously, or

explain[ed] how this evidence would have been admissible.” PCRA Court

Opinion, 4/11/19, at 2. Additionally, the Commonwealth’s expert witness, the

treating physician who testified as to the extent of the victim’s injuries, did

not include fibromyalgia as an injury resulting from the assault. See N.T. Trial,

1/14/13, at 86-101.

      Upon review, we conclude that Appellant has not overcome the

presumption of counsel’s effectiveness. See Johnson, 179 A.3d at 1114.

Appellant failed to prove that evidence of the victim having broken her jaw in

the past existed, or would have been admissible at trial. Accordingly, we

conclude that Appellant has not proven that his underlying claim about

evidence of the alleged prior broken jaw was of arguable merit. Further, we

find meritless Appellant’s assertion that counsel should have rebutted the

claim of the attack causing fibromyalgia was meritless where the treating

physician did not testify it was related to the attack. See Barnett, 121 A.3d

at 540. Appellant’s first issue is meritless.

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      In his second claim, Appellant contends that trial counsel was ineffective

for failing to obtain and enter into evidence the recording from the 911 call

that the victim’s daughter placed upon arriving at the scene. Specifically, he

claims that the call would have shown that the victim obtained her injuries

falling down stairs, rather than being hit, and that police interviewed the victim

on the day of the attack. See Appellant’s Brief, at 25-28. We disagree.

      Here, the PCRA court explained that the victim’s daughter called 911

based on what she heard Appellant and the victim arguing about, not what

she had personally witnessed. It further noted that the call records do not

indicate that police interviewed the victim and cannot be used to impeach her

testimony. Therefore, the court concluded the claim is meritless. See PCRA

Court Opinion, 4/11/19, at 3.

      Upon review, we conclude that the PCRA court’s analysis is well

supported by the record. See, e.g., N.T. Trial, 01/14-15/13, at 65-66 (victim’s

daughter testifying that she did not see how her mother was injured, and that

Appellant told her the injuries were due to a fall). Further, the PCRA court’s

reasoning, that the call record of the 911 call was insufficient to establish

either that the victim injured herself falling down stairs, or that the police

interviewed the victim before she was taken to the hospital, is not an error of

law or an abuse of discretion. Therefore, the PCRA court did not err in finding

that Appellant was unable to establish that his claim had arguable merit. See

Barnett, 121 A.3d at 540. Appellant’s second issue is meritless.




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      In his third claim, Appellant argues that trial counsel was ineffective for

mishandling the furnace pipe in evidence, and for inadvertently showing a

photo of the victim to the jury. See Appellant’s Brief, at 32-33. However,

Appellant has failed to provide any evidence to support his allegation of

ineffectiveness. A review of the trial transcript reveals no instances in which

counsel either mishandled a pipe, or showed an inadmissible picture to the

jury. See generally, N.T. Trial, 01/14-15/13. Nor has Appellant provided a

citation to the transcript to support his assertions.

      Furthermore, Appellant’s argument that the PCRA court erred in not

holding a hearing on this issue is meritless.

      It is well settled that [t]here is no absolute right to an evidentiary
      hearing on a PCRA petition, and if the PCRA court can determine
      from the record that no genuine issues of material fact exist, then
      a hearing is not necessary. [T]o 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.

Commonwealth v. Maddrey, 205 A.3d 323, 328 (Pa. Super. 2019) (citations

and quotation marks omitted). “A PCRA court may decline to hold a hearing if

the petitioner’s claim is patently frivolous and is without a trace of support in

either the record or from other evidence.” Commonwealth v. Jordan, 772

A.2d 1011, 1014 (Pa. Super. 2001) (citation omitted).

      Instantly, Appellant’s claim had no support in the record or other

evidence. Accordingly, the trial court did not abuse its discretion when it

concluded that there was no genuine issue concerning a material fact and


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dismissed Appellant’s claim without a hearing. Therefore, Appellant’s third

issue is meritless.

      In his fourth allegation of ineffective assistance of counsel, Appellant

claims that counsel was ineffective for failing to preserve a challenge to the

application of the deadly weapons enhancement. See Appellant’s Brief, at 34-

36. We disagree.

      A challenge to the application of a deadly weapon sentencing

enhancement is classified as an attack on the discretionary aspects of the

sentence. See Commonwealth v. Buterbaugh, 91 A.3d 1247, 1266 (Pa.

Super. 2014) (en banc). A court must apply the deadly weapon enhancement

when the court determines that an offender used a deadly weapon during the

commission of the current offense. See 204 Pa. Code § 303.10(a)(2). A

“device, implement, or instrumentality capable of producing death or serious

bodily injury” constitutes a deadly weapon. Id. at § 303.10(a)(2)(iii).

      Here, the trial court concluded that the furnace pipe with which

Appellant hit his victim in the head and face constituted a deadly weapon.

Consequently, the court applied the deadly weapon enhancement. It then

imposed an enhanced guideline range sentence. In doing so, the court

considered, inter alia, the presentence investigation report, Appellant’s

criminal history, and Appellant’s lack of remorse. See N.T. Sentencing,

4/10/13, at 2, 14-15.

      Upon review, we conclude the court was well within its discretion to

apply the enhancement. At trial, the Commonwealth presented evidence that

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Appellant had struck the victim in the head with a large iron pipe. See N.T.,

01/14-15/13, at 29-30. The victim suffered a broken jaw from the attack. See

id., at 37. Appellant has failed to prove that if prior counsel had raised a

challenge to the discretionary aspects of his sentence concerning the deadly

weapon enhancement, he would have been entitled to relief either in the

sentencing court or on appeal. Therefore, his fourth claim of ineffective

assistance of council is meritless.

      In his fifth issue, Appellant claims that he is entitled to relief because of

after-discovered evidence. Specifically, he claims that the evidence of medical

records and testimony concerning the victim having broken her jaw in the

past, together with the call record from the 911 call, constitute after-

discovered evidence, which demands a new trial. We disagree.

      Where a petition is otherwise timely, to prevail on an after-
      discovered evidence claim for relief under subsection
      9543(a)(2)(vi), a petitioner must prove that (1) the exculpatory
      evidence has been discovered after trial and could not have been
      obtained at or prior to trial through reasonable diligence; (2) the
      evidence is not cumulative; (3) it is not being used solely to
      impeach credibility; and (4) it would likely compel a different
      verdict.

Commonwealth v. Williams, 215 A.3d 1019, 1024 n.3 (Pa. Super. 2019).

      Upon review, we conclude that Appellant’s argument is merely an

attempt to re-cast his ineffective assistance of counsel claims as a claim of

after-discovered evidence. See Appellant’s Brief, at 29 (“First, this evidence

was unavailable at trial because of trial counsel’s ineffectiveness in failing to

investigate, identify, and obtain this evidence in a timely manner for its use


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at trial, even though he had been informed of its existence … well prior to

trial”). As his argument itself demonstrates, he cannot prove that the evidence

could not have been obtained at or prior to trial through reasonable diligence.

Both the victim’s medical records and the 911 call records existed at the time

of trial, and with reasonable diligence, Appellant could have obtained both.

Consequently, Appellant’s fifth issue does not merit relief.

          Finally, in his sixth issue, Appellant asserts that he is entitled to relief

because of the cumulative effects of the aforementioned errors and ineffective

assistance. Rather than developing any specific argument for prejudice tied to

the facts of this case, however, Appellant merely states “under the unusual

circumstances of this case, the cumulative error was highly prejudicial and

[Appellant’s] claims are meritorious.” Appellant’s Brief, at 37.

          Here, Appellant’s four claims of ineffective assistance of counsel were

denied based on lack of merit, as were his specific claims of after-discovered

evidence, and his challenge to the discretionary aspects of his sentence. There

is no basis for a claim of cumulative effects of ineffectiveness where the claims

failed on merit or arguable merit. See Commonwealth v. Sattazahn, 952

A.2d 640, 671 (Pa. 2008). Consequently, Appellant’s final claim merits no

relief.

          Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/20/2019




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