J-S38010-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA              :    IN THE SUPERIOR COURT OF
                                           :         PENNSYLVANIA
                                           :
              v.                           :
                                           :
                                           :
 TYRONE JOHNSON                            :
                                           :
                    Appellant              :    No. 2954 EDA 2018

          Appeal from the PCRA Order Entered September 21, 2018
            In the Court of Common Pleas of Philadelphia County
            Criminal Division at No(s): CP-51-CR-0006372-2012


BEFORE:    OTT, J., DUBOW, J., and COLINS*, J.

MEMORANDUM BY OTT, J.:                             FILED OCTOBER 24, 2019

      Tyrone Johnson appeals from the order entered on September 21, 2018,

in the Court of Common Pleas of Philadelphia County, denying him relief,

without a hearing, on his petition filed pursuant to the Post Conviction Relief

Act (PCRA), 42 Pa.C.S. § 9542 et seq. In that petition, Johnson raised the

single claim that trial counsel provided ineffective assistance by failing to file

a motion challenging the verdict as against the weight of the evidence. In this

timely appeal, Johnson claims the PCRA court erred in failing to provide a

hearing on the issue, and in determining trial counsel was not ineffective.

After a thorough review of the submissions by the parties, relevant law, and

the certified record, we affirm.

      We begin with a brief recitation of the facts, taken from the PCRA court’s

Pa.R.A.P. 1925(a) opinion.



____________________________________
* Retired Senior Judge assigned to the Superior Court.
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     On the evening of May 4th, 2012, Robert Parks, Maurice
     Washington, and Washington’s nephew [also Maurice] were in the
     apartment that they shared at 1918 North Broad Street. They
     were accompanied by three friends; Parks’ girlfriend, Randy
     Phillips and Phillips’s brother Cam. [Johnson] lived in the first
     floor apartment in the same building. As the six individuals were
     exiting the apartment building to go to a karaoke bar, [Johnson]
     came out to the porch and started yelling at the group. [Johnson]
     explained he was angry with Phillips in particular because he didn’t
     live in the building and was making noise and leaving the door
     unlocked. [Johnson] and Phillips began to argue until Washington
     stepped between them.

     Phillips warned Washington to be careful because [Johnson] had
     a knife, but Washington continued to argue with [Johnson]. As
     the two men stood on the porch arguing, [Johnson] pushed
     Washington, who fell backwards into Cam. When Washington
     returned to his feet, he raised his fists into the air. At that
     moment, [Johnson] began stabbing Washington with a knife,
     striking him in the stomach, chest and neck. The handle of the
     knife broke off from the blade, which remained inside
     Washington’s stomach. After stabbing Washington, [Johnson] ran
     from the porch, returned to his room, and locked the door.

     Parks’ girlfriend called the police to tell them about the stabbing.
     Police officers arrived on the scene and found Washington on the
     ground bleeding from the neck, Parks’ girlfriend rendering aid, and
     a knife blade separated from its handle on the ground. The police
     officers were told that the individual responsible for the stabbing
     was inside the building on the first floor. They entered the building
     and approached the first floor apartment, hearing both a male and
     female voice. One officer knocked on the door for approximately
     one or two minutes, announcing his presence. After four officers
     attempted to force [Johnson’s] door open, the door was opened
     from the inside. The police entered the apartment and noticed a
     female in the apartment. They also noticed [Johnson], who was
     sweating and had blood on his hands. [Johnson] would not
     comply with the officer’s repeated requests to get on the ground,
     so they used a taser and a control hold to get [Johnson] onto the
     ground, placing him in handcuffs. Police observed the female
     place an item on top of the refrigerator that was later determined


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         to be a knife handle matching the blade that was found on the
         porch.

         During the trial, [Johnson] took the stand and gave an alternative
         account of the incident. He stated that when he came out on to
         the porch, he was hit on the back of the head and fell. He was
         then hit in the face by Washington, fell back, hit the side of the
         wall, and blacked out due to an epileptic seizure. The next thing
         [Johnson] remembers is stumbling back inside the apartment
         building and returning to his apartment.

PCRA Court Opinion, December 3, 2018, at 1-3.

         Johnson claimed trial counsel was ineffective for failing to challenge the

weight of the evidence. The PCRA court denied this claim without a hearing.

Johnson claims the PCRA court erred in both failing to grant a hearing and in

denying the claim.

         We relate the various standards of review that apply to this appeal.

First,

         [o]ur 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. 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.


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        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 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).[1]

Commonwealth v. Adams-Smith, 209 A.3d 1011, 1018-19 (Pa. Super.

2019).

        Additionally,

        [w]hen considering challenges to the weight of the evidence, we
        apply the following precepts. “The weight of the evidence is
        exclusively for the finder of fact, who is free to believe all, none[,]
        or some of the evidence and to determine the credibility of the
        witnesses.” Commonwealth v. Talbert, 129 A.3d 536, 545 (Pa.
        Super. 2015) (quotation marks and quotation omitted). Resolving
        contradictory testimony and questions of credibility are matters
        for the finder of fact. Commonwealth v. Hopkins, 747 A.2d 910,
        917 (Pa. Super. 2000). It is well-settled that we cannot substitute
        our judgment for that of the trier of fact. Talbert, supra.
____________________________________________


1   Abrogated on other grounds.

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      Moreover, appellate review of a weight claim is a review of the
      trial court's exercise of discretion in denying the weight challenge
      raised in the post-sentence motion; this Court does not review the
      underlying question of whether the verdict is against the weight
      of the evidence. See id.

          Because the trial judge has had the opportunity to hear
          and see the evidence presented, an appellate court will
          give the gravest consideration to the findings and reasons
          advanced by the trial judge when reviewing a trial court's
          determination that the verdict is against the weight of the
          evidence. One of the least assailable reasons for granting
          or denying a new trial is the lower court's conviction that
          the verdict was or was not against the weight of the
          evidence and that a new trial should be granted in the
          interest of justice.

      Id. at 546 (quotation omitted). Furthermore, “[i]n order for a
      defendant to prevail on a challenge to the weight of the evidence,
      the evidence must be so tenuous, vague and uncertain that the
      verdict shocks the conscience of the court.” Id. (quotation marks
      and quotation omitted).

Commonwealth v. Mikitiuk, 213 A.3d 290, 305 (Pa. Super. 2019).

      Underlying Johnson’s claim of ineffective assistance of counsel is the

assertion that the jury verdict convicting him of aggravated assault and

possession of an instrument of crime was against the weight of the evidence.

If this claim fails, then Johnson’s claim counsel was ineffective for failing to

raise the claim also fails.

      Here, the PCRA court examined the evidence presented at trial and

concluded,

      [Johnson’s] claim lacks merit. The trial testimony of Parks,
      Washington, Officer Matthew Swan and Officer Paul Camarote was
      coherent, consistent, and reliably demonstrated [Johnson’s] guilt.

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      Moreover, [Johnson’s] own testimony could easily and reasonably
      been seen as self-serving and false. In short, the verdict was in
      no way contrary to the evidence and does not come remotely close
      to shocking the conscience.        Therefore, [Johnson] was not
      prejudiced by his attorney’s failure to file a post-sentence motion
      on these grounds, i.e., such a motion would not have been
      successful.

PCRA Opinion, 12/3/2018 at 3.

      Our review of the certified record convinces us the PCRA court’s decision

is supported fully by the record and is not the product of an abuse of discretion

or error of law. Accordingly, Johnson is not entitled to relief.

      Order affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/24/19




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