J-S45042-17


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,               :    IN THE SUPERIOR COURT OF
                                            :          PENNSYLVANIA
               Appellee                     :
                                            :
        v.                                  :
                                            :
RANDOLPH SIMPSON,                           :
                                            :
              Appellant                     :   No. 2737 EDA 2016

                   Appeal from the PCRA Order August 15, 2016
                  in the Court of Common Pleas of Lehigh County
               Criminal Division at No(s): CP-39-CR-0000648-2012

BEFORE:       GANTMAN, P.J., PANELLA, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.:              FILED SEPTEMBER 06, 2017

        Randolph Simpson (Appellant) appeals from the August 15, 2016 order

that dismissed his petition filed pursuant to the Post Conviction Relief Act

(PCRA), 42 Pa.C.S. §§ 9541-9546. We affirm.

        After an argument, Appellant shot out the windows of an SUV owned

by Taihisha Henry outside a bar near the bar/rooming house where

Appellant was living at the time. Following a non-jury trial, Appellant was

convicted of persons not to possess a firearm1 and was sentenced to five to

ten years of imprisonment.        This Court affirmed Appellant’s judgment of

sentence in a nunc pro tunc direct appeal in which he challenged the

sufficiency of the evidence to sustain his conviction.      Commonwealth v.

Simpson, 134 A.3d 502 (Pa. Super. 2015) (unpublished memorandum).


1
    He was found not guilty on a charge of terroristic threats.
*Retired Senior Judge assigned to the Superior Court.
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     On December 21, 2015, Appellant pro se timely filed a PCRA petition.

Counsel was appointed and filed an amended petition. By order of August

15, 2016, the PCRA court denied the petition after a hearing.        Appellant

timely filed a notice of appeal, and both Appellant and the PCRA court

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

     Appellant presents three questions for our review.

           1. Was trial counsel ineffective for failing to adequately
     explain to [Appellant] the complete ramifications of his decision
     to waive a jury trial?

           2. Was trial counsel ineffective for failing to cross examine
     Taihisha Henry, a Commonwealth witness, as to her expectation
     of consideration in her aggravated assault case to impeach her
     testimony?

            3. Was appellate counsel ineffective for failing to raise the
     validity of the consent to search due to intoxication on appeal?

Appellant’s Brief at 4 (suggested answers and unnecessary capitalization

omitted).

     “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.

Whitehawk, 146 A.3d 266, 269 (Pa. Super. 2016).

     Appellant challenges the effectiveness of his trial and direct appeal

counsel. In reviewing his claims, we bear in mind that counsel is presumed

to be effective. Commonwealth v. Andrews, 158 A.3d 1260, 1263 (Pa.

Super. 2017).

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      To overcome this presumption, a PCRA petitioner must plead and
      prove that: (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.

Id. (internal quotation marks and citation omitted).

      Appellant’s first two issues both relate to Taihisha Henry.     First, he

claims that trial counsel should have told him that Ms. Henry “had entered a

plea and had been sentenced before [the same trial judge] in an unrelated

case and that [Ms. Henry’s] prosecutor was also the prosecutor in

[Appellant’s] case.” Appellant’s Brief at 11. Then Appellant contends that

counsel was ineffective because he failed to question Ms. Henry about that

unrelated assault case and whether she had been promised anything in

exchange for her testimony. Id. at 12.

      The PCRA court, which also presided over Appellant’s trial, addressed

Appellant’s issues as follows.

             First, the record demonstrates that [Appellant] knowingly
      and voluntarily waived his right to a jury trial. I colloquied
      [Appellant] on the record regarding his decision to waive a jury
      trial, and he indicated he understood his rights and what he was
      doing by waiving a jury trial. [Appellant] also advised me that
      he discussed his decision fully with his attorney. [Appellant]
      thereafter signed a written waiver of jury trial form.

            Second, even assuming [trial counsel] did not discuss Ms.
      Henry’s guilty plea with [Appellant] and had no reasonable basis
      for doing so, [Appellant] has failed to show that it prejudiced
      him. The fact that I presided over Ms. Henry’s guilty plea did
      not affect me in disposing of [Appellant’s] case fairly and without
      prejudice. Additionally, I found [Appellant] not guilty on one of

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      the two counts, and he has not shown that it was reasonably
      probable that the outcome would have been different with a jury
      trial.

             Finally, Ms. Henry’s criminal past, including her aggravated
      assault case in front of me, was brought out during [Appellant’s]
      trial. Both the district attorney and [Appellant’s trial counsel]
      questioned her about her past crimes, and [trial counsel]
      specifically attacked her credibility during his cross-examination.
      Further, sitting as trier of fact, I would have taken into
      consideration Ms. Henry’s criminal background and any motive
      she may have had to testify – including any expectation of
      leniency – in judging her credibility. [Appellant’s] general claim
      that a deal must have existed between the Commonwealth and
      Ms. Henry, without proffering any evidence of such a deal, is not
      enough to meet his burden of proving [trial counsel’s]
      ineffectiveness.

PCRA Court Opinion, 8/17/2016, at 3-4 (citations and footnote omitted).

      We agree that Appellant has failed to meet his burden of proof as to

his first two claims. In addition to what the PCRA court has noted, it is clear

that Appellant has failed to establish that either claim has arguable merit.

He   cites   no   authority   to   support   his   claim   that   counsel   provided

constitutionally-inadequate advice to Appellant concerning his decision to

proceed without a jury by failing to discuss with him which judges were

assigned to Ms. Henry’s prior criminal cases. Rather, what was required was

that Appellant understand the essential aspects of a jury trial that he was

choosing to waive. See Commonwealth v. Baker, 72 A.3d 652, 667 (Pa.

Super. 2013) (“[F]or a defendant to knowingly and intelligently waive his

right to a jury trial, the defendant must know ‘the essential ingredients,

basic to the concept of a jury trial,’ including ‘the requirements that the jury

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be chosen from members of the community (a jury of one’s peers), that the

verdict be unanimous, and that the accused be allowed to participate in the

selection of the jury panel.’” (quoting Commonwealth v. Williams, 312

A.2d 597, 600 (Pa. 1973)).     Appellant has produced no evidence to show

that he was unaware of the requisite information.

      Further, Appellant offered absolutely no evidence to support a finding

that Ms. Henry was offered leniency in her sentence, which was imposed

eight months before Appellant’s trial, if she agreed to testify against

Appellant as a result of his shooting her vehicle and threatening her family.

Appellant engages in pure speculation warranting no relief.        See, e.g.,

Commonwealth v. Spotz, 18 A.3d 244, 268 (Pa. 2011) (rejecting claim

that counsel rendered ineffective assistance because he had previously

represented the victim where the appellant produced no evidence that he

was adversely affected, but rather relied upon “bald assertions and gross

speculation”).

      Appellant’s final issue challenges the effectiveness of his direct appeal

counsel in failing to litigate his suppression issue, instead raising only a

claim of insufficient evidence.     Appellant’s Brief at 12-13.      However,

Appellant did not call his appellate counsel to testify at the PCRA hearing.

Contrary to Appellant’s argument before the PCRA court, the Commonwealth

had no obligation to prove that counsel had a reasonable basis for his

decisions about which issues to pursue on appeal. N.T., 4/20/2016, at 32

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(“And we have no evidence here, and it’s up to the Commonwealth to put on

the evidence, why [direct appeal counsel] was correct in not appealing [the

suppression ruling]”.).    Rather, it was Appellant’s burden to prove that

counsel lacked a reasonable basis for choosing not to pursue the suppression

claim.    Commonwealth v. Montalvo, 416, 986 A.2d 84, 102 (Pa. 2009)

(“Petitioner bears the burden of proving all three prongs of the test.”).

      By failing to establish what direct appeal counsel’s reasons were for

foregoing the suppression issue on appeal, Appellant failed to prove his

claim.2   See, e.g., Commonwealth v. Koehler, 36 A.3d 121, 147 (Pa.

2012) (holding that, because the petitioner “did not establish a lack of

reasonable basis through trial counsel’s testimony at the PCRA hearing, he

failed to sustain his burden of proof”).

      Thus, Appellant has failed to convince us that he is entitled to relief.

      Order affirmed.




2
  Because direct appeal counsel did not testify at the hearing, the PCRA
court erred to the extent that it based its determination upon a finding that
appellate counsel had a reasonable basis for not pursuing the suppression
issue. See PCRA Court Opinion, 8/17/2016, at 4. However, we may affirm
on a different basis than that of the PCRA court. Commonwealth v. Ford,
44 A.3d 1190, 1194 (Pa. Super. 2012) (“This Court may affirm a PCRA
court’s decision on any grounds if the record supports it.”). In any event,
we agree with the PCRA court’s alternate analysis and conclusion that the
claim lacked arguable merit because the officer testified credibly that
Appellant was coherent and understood what he was doing when he
consented to the search. PCRA Court Opinion, 8/17/2016, at 4-5.
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Judgment Entered.




Joseph D. Seletyn, Esq.

Prothonotary



Date: 9/6/2017




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