J-S81028-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    JASON GARDNER                              :
                                               :
                       Appellant               :   No. 889 MDA 2018

              Appeal from the PCRA Order Entered May 25, 2018
     In the Court of Common Pleas of Lycoming County Criminal Division at
                       No(s): CP-41-CR-0000410-2013


BEFORE:      STABILE, J., DUBOW, J., and STEVENS*, P.J.E.

JUDGMENT ORDER BY DUBOW, J.:                              FILED MAY 16, 2019

        Appellant, Jason Gardner, appeals from the May 25, 2018 Order entered

in the Lycoming County Court of Common Pleas dismissing his first Petition

filed pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-

9546. After careful review, we affirm.

        The relevant facts and procedural history are as follows. On September

19, 2014, a jury convicted Appellant of Second-Degree Murder, Robbery,

Conspiracy to Commit Robbery, and Flight to Avoid Apprehension, Trial, or

Punishment in connection with the January 9, 2013 murder of Terrell

Henderson-Littles in Williamsport, Lycoming County.1        That same day, the

court sentenced Appellant to life imprisonment without the possibility of

parole.     After the denial of his Post-Sentence Motion, Appellant timely

____________________________________________


1   18 Pa.C.S. §§ 2502(b); 3701(a)(1)(ii); 903(a); and 5126(a), respectively.
____________________________________
* Former Justice specially assigned to the Superior Court.
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appealed.     This Court affirmed Appellant’s Judgment of Sentence and the

Pennsylvania Supreme Court subsequently denied allocatur on September 19,

2016. See Commonwealth v. Gardner, 145 A.3d 777 (Pa. Super. 2016)

(unpublished memorandum), appeal denied, 158 A.3d 66 (Pa. 2016).

       Appellant timely filed pro se the instant PCRA Petition, his first, claiming,

inter alia, that his trial counsel had been ineffective for failing to request a

cautionary instruction when the Commonwealth used a visual video aid during

closing argument that it had not previously shown to the court or to

Appellant’s counsel.2 Petition, filed 3/30/17, at 4. The PCRA court appointed

counsel, who, filed an Amended PCRA Petition, reiterating and developing

Appellant’s ineffective assistance of counsel claim.         See Amended PCRA

Petition, 11/13/17, at ¶ 20.

       On April 30, 2018, the PCRA court filed a Notice pursuant to Pa.R.Crim.P.

907 informing Appellant of its intent to dismiss his petition without a hearing.

Appellant did not file a Response to the court’s Rule 907 Notice. On May 25,

2018, the PCRA court dismissed Appellant’s Petition as meritless.

       This timely appeal followed.            Both Appellant and the PCRA court

complied with Pa.R.A.P. 1925.

       Appellant raises the following issue on appeal:

       Whether the trial court erred in denying [Appellant’s] Amended
       [PCRA] Petition when trial counsel was ineffective for failing to
       request a cautionary instruction be provided to the jury after the
____________________________________________


2In his direct appeal, Appellant challenged, inter alia, the trial court’s ruling
permitting the Commonwealth to use a visual aid during its closing argument.

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      Commonwealth used demonstrative evidence in the form of a
      visual aid created by the police?

Appellant’s Brief at 6.

      “Our standard of review of a PCRA court's dismissal of a PCRA petition

is limited to examining whether the PCRA court's determination is supported

by the record evidence and free of legal error.” Commonwealth v. Root,

179 A.3d 511, 515-16 (Pa. Super. 2018) (citation omitted). This Court grants

great deference to the findings of the PCRA court if they are supported by the

record. Commonwealth v. Boyd, 923 A.2d 513, 515 (Pa. Super. 2007). We

give no    such deference, however, to        the court’s    legal conclusions.

Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa. Super. 2012).

      With respect to ineffective assistance of counsel claims, the law

presumes counsel has rendered effective assistance.         Commonwealth v.

Rivera, 10 A.3d 1276, 1279 (Pa. Super. 2010).                “[T]he burden of

demonstrating ineffectiveness rests on Appellant.” Id. To satisfy this burden,

Appellant “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. Reyes-Rodriguez, 111 A.3d 775,

780 (Pa. Super. 2015) (en banc). A petitioner must prove all three factors,

or the claim fails. See Commonwealth v. Gibson, 951 A.2d 1110, 1128

(Pa. 2008) (“If it is clear that Appellant has not met the prejudice prong of the

ineffectiveness standard, the claim may be dismissed on that basis alone and



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the court need not first determine whether the first and second prongs have

been met.” (citation omitted)).

      Our review of Appellant’s Brief indicates that he has failed to plead and

prove that he suffered any prejudice by his counsel’s decision not to seek a

cautionary instruction. Appellant’s argument on this point consists of a mere

conclusory statement that trial counsel “did not have a reasonable trial

strategy and, as such Appellant suffered prejudice[.]” Appellant’s Brief at 16-

17. This bald allegation, without more, does not satisfy the prejudice prong

of the ineffectiveness standard.    Thus, we need not determine whether

Appellant met the first and second prongs of the ineffectiveness standard.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 05/16/2019




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