J-S46009-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

MIKE HOWARD

                            Appellant                  No. 1523 EDA 2014


                   Appeal from the PCRA Order April 11, 2014
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0002711-2008
                                          CP-51-CR-0002712-2008


BEFORE: MUNDY, J., OLSON, J., and MUSMANNO, J.

MEMORANDUM BY MUNDY, J.:                                 FILED JULY 28, 2015

        Appellant, Mike Howard, appeals pro se from the April 11, 2014 order

denying his first petition for relief filed pursuant to the Post Conviction Relief

Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546.1 After careful review, we affirm.

        We summarize the relevant factual and procedural history of this case

as follows. On January 30, 2009, Appellant was convicted of one count each

of robbery and possession of an instrument of a crime (PIC).2 On March 19,

2009, the trial court imposed an aggregate sentence of six to 12 years’




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1
    We note the Commonwealth has elected not to file a brief in this matter.
2
    18 Pa.C.S.A. §§ 3701(a)(1)(ii) and 907(a), respectively.
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imprisonment.3       Appellant filed a timely notice of appeal, and this Court

affirmed the judgment of sentence on June 14, 2010. Commonwealth v.

Howard, 4 A.3d 684 (Pa. Super. 2010) (unpublished memorandum), appeal

denied, 15 A.3d 489 (Pa. 2011).                Our Supreme Court denied Appellant’s

petition for allowance of appeal on February 16, 2011.            Id.   Appellant did

not seek a writ of certiorari from the Supreme Court of the United States.

       On November 9, 2011, Appellant timely filed the instant pro se PCRA

petition and the PCRA court appointed counsel. PCRA counsel filed a motion

to withdraw on August 5, 2013, along with a “no-merit” letter pursuant to

Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), Commonwealth v.

Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc), and their progeny. PCRA

counsel filed a supplemental Turner/Finley letter on January 22, 2014 at

the request of the PCRA court.            On February 19, 2014, the PCRA court

entered an order notifying Appellant of its intent to dismiss his PCRA petition

without a hearing pursuant to Pennsylvania Rule of Criminal Procedure 907.

Appellant did not file a response to the Rule 907 notice.           The PCRA court

entered its final order dismissing Appellant’s PCRA petition and granting




____________________________________________
3
  Specifically, the trial court sentenced Appellant to six to 12 years’
imprisonment for robbery and two to four years’ imprisonment for PIC. The
two sentences were to run concurrently to each other.




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counsel’s petition to withdraw on April 11, 2014. On May 7, 2014, Appellant

filed a timely pro se notice of appeal.4

       On appeal, Appellant raises the following seven issues for our review.

              I.     Whether Appellant was denied due process of
              law and effective assistance of all counsels’ [sic] in
              their failure to guarantee his right to a fundamental
              [sic] fair trial due to the prosecutor for the
              Commonwealth uses [sic] of [a] false trial theory[?]
              This violated Appellant’s right to due process and
              effective assistance of counsel, as guaranteed by
              Amendments 6 and 14 to the U.S. Constitution and
              the corresponding provisions of the Pennsylvania
              Constitution.

              II.   Was not Appellant denied due process of law
              and effective assistance of counsel on his first
              [PCRA] petition, as guaranteed by Amendments 6
              and 14 to the U.S. Constitution and the provisions of
              the Pennsylvania Constitution?

              III. Was not PCRA counsel ineffective for failing to
              raise in an amended PCRA petition a layered claim of
              ineffective assistance of counsel for failing to object
              and challenge the prosecutor for the Commonwealth
              uses [sic] of a false trial theory?

              IV.    Was not PCRA counsel ineffective for failing to
              raise in an amended PCRA petition a claim of
              prosecutorial misconduct in knowingly used [sic] [a]
              false trial theory to obtain a conviction?

              V.    Was not PCRA counsel ineffective for failing to
              raise in an amended PCRA petition trial counsel’s
              ineffectiveness by counsel’s unreasonable advice
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4
 The PCRA court did not order Appellant to file a concise statement of errors
complained of on appeal pursuant to Pennsylvania Rule of Appellate
Procedure 1925(b). The PCRA court filed its Rule 1925(a) opinion on
September 18, 2014.



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               advising Appellant to waive his constitutional right to
               testify?

               VI.    Was not PCRA counsel ineffective for failing to
               raise in an amended PCRA petition trial counsel’s
               ineffectiveness for failing to investigate Tamika Scot
               aka Lakisha Johnson’s pending charges of robbery,
               and whether she received favorable treatment by the
               District Attorney’s Office for her testimony against []
               Appellant?

               [VII.] Did [] Appellant suffered [sic] a cumulative
               effect of ineffective assistance of counsel during trial,
               direct appeal, post-conviction proceedings, in
               ciolation [sic] of his right to due process of law and
               effective assistance of counsel as guaranteed by
               Amendments 6 and 14 to the U.S. Constitution and
               the corresponding provisions of the Pennsylvania
               Constitution?

Appellant’s Brief at vi.

      We begin by noting our well-settled standard of review. “In reviewing

the   denial    of   PCRA   relief,   we   examine   whether    the   PCRA   court’s

determination is supported by the record and free of legal error.”

Commonwealth v. Fears, 86 A.3d 795, 803 (Pa. 2014) (internal quotation

marks and citation omitted). “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) (citation omitted).           “It is well-settled

that a PCRA court’s credibility determinations are binding upon an appellate

court so long as they are supported by the record.”            Commonwealth v.

Robinson, 82 A.3d 998, 1013 (Pa. 2013) (citation omitted). However, this


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Court reviews the PCRA court’s legal conclusions de novo. Commonwealth

v. Rigg, 84 A.3d 1080, 1084 (Pa. Super. 2014) (citation omitted).

      At the outset, we elect to first address Appellant’s second, third,

fourth, fifth, and sixth issues together. In each of these issues, Appellant

avers that PCRA counsel rendered ineffective assistance in failing to raise or

investigate certain claims. See generally Appellant’s Brief at 6-16.

      This Court recently explicitly reiterated, “claims of PCRA counsel’s

ineffectiveness   may   not   be   raised   for   the   first   time   on   appeal.”

Commonwealth v. Henkel, 90 A.3d 16, 20 (Pa. Super. 2014) (en banc),

appeal denied, 101 A.3d 785 (Pa. 2014). Rather, in order to preserve such

claims, Appellant must raise them in the PCRA court, such as in response to

a Rule 907 notice if one is issued by the PCRA court.              Id.; see also

Commonwealth v. Rykard, 55 A.3d 1177, 1186 (Pa. Super. 2012) (noting

the defendant preserved PCRA counsel ineffectiveness claims “by setting

forth allegations of PCRA counsel’s ineffectiveness in his response to the

court’s pre-dismissal notice[]”), appeal denied, 64 A.3d 631 (Pa. 2013);

Pa.R.A.P. 302(a) (stating, “[i]ssues not raised in the lower court are waived

and cannot be raised for the first time on appeal[]”).

      Instantly, our review of the certified record reveals Appellant did not

file a response to the PCRA court’s Rule 907 notice. Furthermore, the record

does not contain any other form of objection from Appellant concerning




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PCRA counsel’s stewardship.          Based on these considerations, we conclude

Appellant has waived these issues on appeal.

       Turning to Appellant’s remaining issues, in his first issue, Appellant

argues that trial counsel was ineffective because trial counsel “should have

lodged an objection or moved for an arrest of judgment on the fact that the

prosecutor for the Commonwealth was pursuing a trial against Appellant …

based on a false theory.”5         Appellant’s Brief at 4.   Appellant also claims

direct appeal counsel should have raised this issue on direct appeal. Id.

       The Sixth Amendment to the Federal Constitution provides in relevant

part that, “[i]n all criminal prosecutions, the accused shall enjoy the right …

to have the Assistance of Counsel for his defence.”6 U.S. Const. amend. VI.

The Supreme Court has long held that the Counsel Clause includes the right

to the effective assistance of counsel.          See generally Strickland v.

Washington, 466 U.S. 668, 686 (1984); Commonwealth v. Pierce, 527

A.2d 973, 975 (Pa. 1987).

       In analyzing claims of ineffective assistance of counsel, “[c]ounsel is

presumed effective, and [appellant] bears the burden of proving otherwise.”
____________________________________________
5
 We note this issue was explicitly raised in Appellant’s pro se PCRA petition.
Appellant’s PCRA Petition, 11/9/11, at 3.
6
  Likewise, Article I, Section 9 of the Pennsylvania Constitution states in
relevant part, “[i]n all criminal prosecutions the accused hath a right to be
heard by himself and his counsel ….” Pa. Const. art. I, § 9. Our Supreme
Court has held that the Pennsylvania Constitution does not provide greater
protection than the Sixth Amendment. Pierce, supra at 976.



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Fears, supra at 804 (brackets in original; citation omitted). As established

by Strickland and Pierce, to prevail on a claim of ineffective assistance of

counsel, a PCRA petitioner must allege and prove “(1) the underlying legal

claim was of arguable merit; (2) counsel had no reasonable strategic basis

for his action or inaction; and (3) the petitioner was prejudiced—that is, but

for counsel’s deficient stewardship, there is a reasonable likelihood the

outcome of the proceedings would have been different.”      Commonwealth

v. Simpson, 66 A.3d 253, 260 (Pa. 2013). “A claim of ineffectiveness will

be denied if the petitioner’s evidence fails to satisfy any one of these

prongs.” Commonwealth v. Elliott, 80 A.3d 415, 427 (Pa. 2013) (citation

omitted), cert. denied, Elliott v. Pennsylvania, 135 S. Ct. 50 (2014).

     We also note that a PCRA petitioner is not automatically entitled to an

evidentiary hearing.   We review the PCRA court’s decision dismissing a

petition without a hearing for an abuse of discretion.   Commonwealth v.

Roney, 79 A.3d 595, 604 (Pa. 2013) (citation omitted), cert. denied, Roney

v. Pennsylvania, 135 S. Ct. 56 (2014).

           [T]he right to an evidentiary hearing on a post-
           conviction petition is not absolute. It is within the
           PCRA court’s discretion to decline to hold a hearing if
           the petitioner’s claim is patently frivolous and has no
           support either in the record or other evidence. It is
           the responsibility of the reviewing court on appeal to
           examine each issue raised in the PCRA petition in
           light of the record certified before it in order to
           determine if the PCRA court erred in its
           determination that there were no genuine issues of
           material fact in controversy and in denying relief
           without conducting an evidentiary hearing.

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Commonwealth v. Wah, 42 A.3d 335, 338 (Pa. Super. 2012) (internal

citations omitted). “[A]n evidentiary hearing is not meant to function as a

fishing expedition for any possible evidence that may support some

speculative claim of ineffectiveness.”     Roney, supra at 605 (citation

omitted).

      As noted above, Appellant claims trial counsel was ineffective because

he “should have lodged an objection or moved for an arrest of judgment on

the fact that the prosecutor for the Commonwealth was pursuing a trial

against Appellant … based on a false theory.”        Appellant’s Brief at 4.

Specifically, Appellant claims that the testimony of the Commonwealth’s

witness, Lakeisha Johnson, identifying Appellant as the man who robbed the

victim, was contradictory because Johnson recanted her statement at trial.

Id. at 2.

      During the hearing on Appellant’s motion to suppress, Johnson

testified that she did not identify Appellant, and she could not even

remember the police asking her to identify anyone.             N.T., 1/28/09

(Suppression), at 27, 32.    Officer John Sweeny of the Philadelphia Police

Department testified at the same hearing that Johnson did identify Appellant

as the one who robbed the victim on the night of the offense. Id. at 19, 23-

24. Johnson testified at trial that she did not identify anyone. N.T., 1/28/09

(Trial), at 94.




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       Appellant argues that trial counsel should have sought an arrest of

judgment.7 Id. This Court has consistently explained that a motion for an

arrest of judgment is a challenge to the sufficiency of the Commonwealth’s

evidence.    Commonwealth v. Feathers, 660 A.2d 90, 91-92 (Pa. Super.

1995), affirmed, 683 A.2d 289 (Pa. 1996); Commonwealth v. Taylor, 471

A.2d 1228, 1229 (Pa. Super. 1984). Our Supreme Court has stated that a

claim “that the prior inconsistent statements of the Commonwealth’s trial

witnesses … were too unreliable to establish, as a matter of law, his guilt

beyond a reasonable doubt is a claim which implicates the sufficiency of the

evidence.”     Commonwealth v. Brown, 52 A.3d 1139, 1157 n.18 (Pa.

2012).    However, our Supreme Court has also cautioned that a witness’

mere recantation at trial of a prior statement he made to police does not

automatically render that prior statement insufficient as a matter of law.

Commonwealth v. Hanible, 836 A.2d 36, 39 (Pa. 2003).

       It remains that, as the fact finder at trial, “the jury was free to

evaluate both [Johnson]’s statement to police as well as [her] testimony at

trial recanting that statement, and free to believe all, part, or none of the

evidence.” Id. Here, the jury evaluated Johnson’s statement to the police
____________________________________________
7
  Appellant’s also argues that trial counsel should have objected to the
contradictory statements. Appellant’s Brief at 4. Upon review, Appellant
has failed to articulate the legal basis for the objection he wished for trial
counsel to make. As a result, we deem this portion of his argument waived.
See generally Commonwealth v. Johnson, 985 A.2d 915, 924 (Pa.
2009), cert. denied, Johnson v. Pennsylvania, 562 U.S. 906 (2010).



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and chose to credit Officer Sweeny’s testimony as to Johnson’s initial

identification of Appellant to the police.         See generally N.T., 1/28/09

(Suppression), at 19, 23-24.           The jury was equally permitted to reject

Johnson’s own testimony that the police never asked her to identify anyone.

See generally N.T., 1/28/09 (Trial), at 94. As Appellant’s argument to the

sufficiency of the evidence lacked arguable merit, trial counsel cannot be

ineffective for not raising the issue.8

       In his seventh issue, Appellant argues that the cumulative effect of all

of his prior attorneys’ stewardship resulted in a constitutional violation.

Appellant’s Brief at 16-17.            However, as we have rejected each of

Appellant’s claims as either waived or lacking merit, this claim fails as well.

See Commonwealth v. Spotz, 18 A.3d 244, 321 (Pa. 2011) (stating, “no

number of failed claims may collectively warrant relief if they fail to do so

individually[]”) (some internal brackets and citation omitted). Additionally,

because all of Appellant’s issues are waived or lack merit, the PCRA court did

not abuse its discretion when it did not conduct an evidentiary hearing. See

Roney, supra.




____________________________________________
8
  To the extent Appellant argues direct appeal counsel was ineffective for not
having raised the same issue on appeal, this claim also fails because “[i]t is
well established that appellate counsel cannot be deemed ineffective for
failing to raise a meritless claim.” Commonwealth v. Lawrence, 960 A.2d
473, 478 (Pa. Super. 2008), appeal denied, 980 A.2d 606 (Pa. 2009).



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     Based on the foregoing, we conclude all of Appellant’s issues on appeal

are either waived or devoid of merit. Accordingly, the PCRA court’s April 11,

2014 order is affirmed.

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/28/2015




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