J-S50023-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,            :     IN THE SUPERIOR COURT OF
                                         :          PENNSYLVANIA
                            Appellee     :
                                         :
             v.                          :
                                         :
MARY BETH BEAL,                          :
                                         :
                            Appellant    :     No. 145 WDA 2014


            Appeal from the PCRA Order Entered January 21, 2014,
               In the Court of Common Pleas of Fayette County,
              Criminal Division, at No. CP-26-CR-0002000-2011.


BEFORE: FORD ELLIOTT, P.J.E., SHOGAN and ALLEN, JJ.

MEMORANDUM BY SHOGAN, J.:                        FILED OCTOBER 06, 2014

      Appellant, Mary Beth Beal, appeals from the order denying her petition

for relief filed pursuant

§§ 9541-9546. We affirm.

      We summarize the history of this case as follows. On September 9,

2011, Appellant, at gunpoint, forced Justin Colbert out of the car that he was

driving.   Mr. Colbert testified that, although he was not the owner of the

vehicle, he had permission from the vehicle owner, Brian Miller, to use the

car at the time of the incident. Mr. Colbert testified that Appellant took his

money and cell phone when she forced him out of the car. State Trooper

Barnhart testified that the automobile was never recovered.
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      On February 7, 2012, following a jury trial, Appellant was convicted of

theft by unlawful taking in relation to the theft of the car, $400 in cash, and

the cell phone from Mr. Colbert.      On February 8, 2012, the trial court

sentenced Appellant to serve a term of incarceration of fourteen to twenty-

eight months, with credit for time served.

      Appellant filed a direct appeal, and this Court affirmed the judgment of

sentence on September 12, 2012.        Commonwealth v. Beal, 336 WDA

2012, 60 A.3d 850 (Pa. Super. filed September 12, 2012) (unpublished



allowance of appeal on February 13, 2013.      Commonwealth v. Beal, 63

A.3d 772 (Pa. 2013).

      On March 7, 2013, Appellant filed the instant pro se PCRA petition.

PCRA counsel was appointed to represent Appellant and filed an amended

PCRA petition.   The PCRA court held a hearing on August 22, 2013.          On

January 21, 2014, the PCRA court entered an order denying PCRA relief.

This timely appeal followed.1

      Appellant presents the following issues for our review:



1
 We note that on August 14, 2014, this Court entered an order directing the
PCRA court to make a determination regarding whether Appellant is
currently in custody for purposes of the PCRA in the above-captioned case,
                                                                       d to
expire. The PCRA court responded via an order dated August 25, 2014, in
which the PCRA court explained that Appellant is currently in custody, and
her sentence will expire on March 22, 2016.

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      1. WAS TRIAL COUNSEL INEFFECTIVE FOR FAILING TO PRESENT

      TESTIFY AT TRIAL?

      2. WAS TRIAL COUNSEL INEFFECTIVE AND DID THE COURT ERR
      WHEN THE COURT FAILED TO CONDUCT A COLLOQUY WITH THE
      APPELLANT WHICH INFORMED HER OF HER RIGHT TO TESTIFY
      IN HER CASE?



      Our standard of review of an order denying PCRA relief is whether the



                                             Commonwealth v. Phillips, 31

A.3d 317, 319 (Pa. Super. 2011) (citing Commonwealth v. Berry, 877

A.2d 479, 482 (Pa. Super. 2005)).      T

disturbed unless there is no support for the findings in the certified record.

Id. (citing Commonwealth v. Carr, 768 A.2d 1164, 1166 (Pa. Super.

2001)).

      In order to succeed on a claim of ineffective assistance of counsel, an

appellant must demonstrate (1) that the underlying claim is of arguable



(3) that the ineffectiveness of counsel caused the appellant prejudice.

Commonwealth v. Pierce, 786 A.2d 203, 213 (Pa. 2001).

      We have explained that trial counsel cannot be deemed ineffective for

failing to pursue a meritless claim.   Commonwealth v. Loner, 836 A.2d

125, 132 (Pa. Super. 2003) (en banc). Moreover, with regard to the second


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prong, we have reite



Commonwealth v. Ervin, 766 A.2d 859, 862-863 (Pa. Super. 2000)

(quoting Commonwealth v. Miller, 431 A.2d 233 (Pa. 1981)).

      Our Supreme Court has lo


      constitutionally effective once we are able to conclude that the
      particular course chosen by counsel had some reasonable basis
                                           interests. The test is not
      whether other alternatives were more reasonable, employing a
      hindsight evaluation of the record.         Although weigh the
      alternatives we must, the balance tips in favor of a finding of
      effective assistance as soon as it is determined that trial


Commonwealth v. Pierce, 527 A.2d 973, 975 (Pa. 1987) (quoting Com.

ex rel. Washington v. Maroney, 235 A.2d 349 (Pa. 1967)) (emphasis in

original).

      In addition, we are mindful that prejudice requires proof that there is a



proceeding would have been different. Pierce

to satisfy any prong of the ineffectiveness test requires rejection of the claim

o                     Commonwealth v. Daniels, 963 A.2d 409, 419 (Pa.

2009) (citing Commonwealth v. Sneed, 899 A.2d 1067 (Pa. 2006)). Thus,

when it is clear that an appellant has failed to meet the prejudice prong of

an ineffective assistance of counsel claim, the claim may be disposed of on

that basis alone, without a determination of whether the first two prongs

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have been met. Commonwealth v. Baker, 880 A.2d 654, 656 (Pa. Super.

2005).

                                                                               he

petitioner proves otherwise. Commonwealth v. Williams, 732 A.2d 1167,



determinations    where    there   is   support   for   them    in   the   record.

Commonwealth v. Battle, 883 A.2d 641, 648 (Pa. Super. 2005) (citing

Commonwealth v. Abu-Jamal, 720 A.2d 79 (Pa. 1998)).

      Furthermore, claims of ineffective assistance of counsel are not self-

proving.    Commonwealth v. Wharton, 811 A.2d 978, 986 (Pa. 2002).

           -conviction petitioner must, at a minimum, present argumentation

relative to each layer of ineffective assistance, on all three prongs of the

                                                                , 856 A.2d 806,



meaningfully discuss and apply the standard governing the review of



                                              Commonwealth v. Bracey, 795

A.2d 935, 940 n.4 (Pa. 2001).

      In her first claim, Appellant argues that her trial counsel was

ineffective for failing to call an alibi witness. Specifically, Appellant contends

that her trial counsel should have called Carlos Gonzales, who would have




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testified that Appellant was collecting her paycheck at the restaurant owned

by Mr. Gonzales on the morning of the crime.

      As our Supreme Court has explained:


      investigate potentially meritorious defenses or failure to
      interview witnesses whose testimony could prove beneficial and
      exculpatory can constitute ineffective assistance of counsel if no
                                                                   E.g.,
      Commonwealth v. Mabie, 467 Pa. 464, 359 A.2d 369 (1976).

      is not judged abstractly in the vacuum of what might have been
      but in the reality of what is; accordingly, the defendant must

      testimony of the uninterviewed witness would have been
      beneficial under the facts and circumstances of his case.
      Commonwealth v. Anderson, supra, 501 Pa. 287-288 at 461
      A.2d 214; Commonwealth v. Leonard, 499 Pa. 357, 453 A.2d
      587 (1982); Commonwealth v. McKenna, 498 Pa. 416, 446
      A.2d 1274 (1982).

Commonwealth v. McNeil, 487 A.2d 802, 806 (Pa. 1985).

                                                           ineffectiveness for

failure to call a witness, an appellant must prove:

                    witness existed; (2) the witness was available; (3)
      trial counsel was informed of the existence of the witness or
      should have known of the              existence; (4) the witness
      was prepared to cooperate and would have testified on



Commonwealth v. Chmiel, 889 A.2d 501, 545-546 (Pa. 2005) (citations

                             failure to call a particular witness does not

constitute ineffective assistance without some showing that the absent




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         testimony would have been beneficial or helpful in establishing the

asserted defense.     Id.   Thus, Appellant must demonstrate how the

testimony of the foregone witness would have been beneficial under the

circumstances of the case. Id.

     In addressing this issue, the PCRA court stated the following:

     Carlos   Gonzales   was   also    called   as   a   PCRA   witness   on

     [Appellant] at his restaurant in Connellsville on the date of the
     crime, September 9, 2011, at some time between 9:30 A.M. and
     10:00 A.M. [N.T., 8/22/13,] 18. As stated by the District
     Attorney, Jack Heneks, without objection during his cross-
     examination of Mr. Gonzales, the crime occurred about 11:30
     A.M., and it does not take one hour and fifteen minutes to travel
     from Connellsville to Uniontown. Id. p. 21. . . .

           Att
     testimony that there was nothing in his office file to indicate that
     [Appellant] had an alibi defense. Id. p. 23. He could not
     remember whether [Appellant] had mentioned such a defense to
     him prior to trial, in any event, Attorney Kaiser testified that Mr.

     [Appellant] because the crime occurred between 11:00 A.M. and
     11:20 A.M. in a parking lot on Gallatin Avenue, Uniontown, a
     distance of e
     with a driving time of twenty minutes. Id. p. 29. The Court

     having personal knowledge of the driving time and distance
     between Connellsville and Uniontown. Id. p. 30.

PCRA Court Opinion, 1/21/14, at 2-3.

     After review of the certified record before us on appeal, we agree with

the PCRA court that Appellant has failed to establish that trial counsel was

ineffective in handling the defense.    Our review of the record reflects that




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Appellant came to his restaurant between 9:30 a.m. and 10:00 a.m. on the

morning of the incident. N.T., 8/2/13, at 18, 20. Specifically, he stated that

Appellant stayed at the restaurant for about thirty minutes and left about

10:00 a.m. Id. at 18, 20, 21. In addition, Mr. Gonzales agreed that it does

not take an hour and one-half to travel from his restaurant to the area of the

crime. Id. at 21. Likewise, trial counsel testified at the PCRA hearing that

the incident in question occurred between 11:00 a.m. and 11:20 a.m. Id. at

29.   Trial counsel further testified that the distance from the restaurant

owned by Mr. Gonzales to the scene of the crime was approximately eight or

nine miles, with a driving time of twenty minutes. Id. Also, trial counsel

agreed that if Appellant left the restaurant at 10:00 a.m., she could have

been in the vicinity of the crime scene between 10:20 and 10:30 a.m. Id.

at 30.   This conclusion is supported by the PCRA court, which made the

following observation during the PCRA hearing:

      Connellsville to Uniontown is eleven miles. I drive it every day.
                                                                      -
      five minute drive.

Id.



proffered testimony was not helpful to the defense.          Accordingly, we

conclude that Appellant has failed to establish that trial counsel was




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J-S50023-14



ineffective for failing to call Mr. Gonzales as an alibi witness.     Thus, this

claim lacks merit.

      Appellant next argues that trial counsel was ineffective concerning



was ineffective for failing to properly inform her of her right to testify on her

own behalf and the consequences of waiving that right. In fact, Appellant

baldly alleges that her counsel failed to inform her that she had the right to



      Regarding the right

has long explained the following:


      made by the defendant after full consultation with counsel. In
      order to sustain a claim that counsel was ineffective for failing to
      call the appellant to the stand, the appellant must demonstrate
      either that counsel interfered with his right to testify, or that
      counsel gave specific advice so unreasonable as to vitiate a
      knowing and intelligent decision to testify on his own behalf.

Commonwealth v. Carson, 741 A.2d 686, 699 (Pa. 1999) (citations

omitted).

      In addition, we observe that a defendant must demonstrate that he or

                                              Commonwealth v. Alderman,

811 A.2d 592 (Pa. Super. 2002).         In Alderman, this Court stated the

following:

            Aside from his bald allegation that counsel never informed
      Appellant of his right to testify, Appellant has offered no proof to


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      support this claim. In any event, assuming that counsel failed to
      so inform Appellant, we conclude that Appellant has failed to

      Specifically, Appellant has failed to articulate what testimony he
      would have given had he testified at trial. Aside from baldly
      stating that he would have refuted the charges, Appellant fails to
      indicate precisely how he would have done so. Without an offer
      of proof, Appellant has failed to demonstrate how his failure to
      testify resulted in a reasonable probability that, but for coun
      errors, the result of the proceeding would have been different.

Id. at 596 (footnote and citations omitted).

      With regard to this claim of ineffective assistance, the PCRA court

offered the following pertinent discussion:

            At the PCRA hearing, [Appellant] testified that she was not
      called to testify in her own behalf and had no colloquy which
      advised her that she had the right to do so.           N.T. PCRA
      Proceedings, August 22, 2013, p. 9. . . .

             Under cross-examination, [Appellant] conceded that she
      knew she had a right to testify at this trial, and understood that
      trial counsel advised against doing so because she had a prior
      conviction for theft by unlawful taking, the same charge she was
      then facing, and the jury would likely hear about the previous
      conviction. Id. pp. 10-11. . . .


      testify at trial when she wanted to do so, Attorney Kaiser
      provided credible testimony that he advised Petitioner of her
      absolute right to testify at trial in this case, Id. p. 24, and
      discussed the pros and cons with her. Id. Counsel said that he

      was concerned that her prior conviction for theft by unlawful
      taking would work against her. Id. pp. 24-26. The Court finds
      that Attorney Kaiser was credible when he testified that he told
      Petitioner she had an absolute right to testify in her own behalf,
      and even though he did not think it was a good idea to do so,
      the decision was hers, and it was her choice to not testify. Id.
      pp. 24-25.


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            In light of the foregoing summary of the hearing evidence

      that [Appellant] has failed to meet her burden to prove that any
      ineffective assistance occurred. Counsel ably testified that he
      had a reasonable trial strategy in advising [Appellant] that it was
      not in her best interest to testify at trial on her own behalf, . . .
      [Appellant] herself stated that she was aware of her right to take
      the stand and understood counsel's reason for advising her
      against doing so. The Court specifically finds that the decision to


PCRA Court Opinion, 1/21/14, at 2-4. Likewise, it is our determination that

the PCRA court properly concluded



merit.

      Finally, Appellant sets forth an argument asserting that the trial court

erred in failing to colloquy Appellant regarding her right to testify. However,

this claim lacks merit. Case law is clear that a colloquy of a defendant who

does not testify is not legally required.     Commonwealth. v. Duffy, 832

A.2d 1132, 1137 n. 3 (Pa. Super. 2003); Commonwealth v. Todd, 820

A.2d 707, 712 (Pa. Super. 2003).      Thus, the assertion that the trial court

committed an error requiring a new trial fails and must be rejected.

      Order affirmed.



Judgment Entered.




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Joseph D. Seletyn, Esq.
Prothonotary

Date: 10/6/2014




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