J-S47028-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

JAMIE DUNCAN MCCABE

                            Appellant                  No. 1901 MDA 2015


                  Appeal from the PCRA Order October 2, 2015
               In the Court of Common Pleas of Schuylkill County
              Criminal Division at No(s): CP-54-CR-0000038-2013


BEFORE: SHOGAN, J., LAZARUS, J., and JENKINS, J.

MEMORANDUM BY JENKINS, J.:                              FILED JULY 28, 2016

        Appellant Jamie Duncan McCabe appeals from the order entered in the

Schuylkill County Court of Common Pleas, which dismissed his petition filed

for relief pursuant to the Post Conviction Relief Act (“PCRA”).1 We affirm.

        The relevant facts and procedural history of this appeal are as follows.

On October 22, 2013, a jury convicted Appellant of possession and

possession with intent to deliver (“PWID”) (heroin).2,      3
                                                                The trial court

____________________________________________


1
    42 Pa.C.S. §§ 9541-9546.
2
    35 P.S. § 780-113(a)(16) and (30), respectively.
3
  These convictions stem from a December 13, 2012 traffic stop of a vehicle
Appellant was driving. Passenger Laura Kech, the owner of the vehicle,
consented to a search of the vehicle, which yielded several bags of heroin,
cocaine, and methamphetamines. The jury only convicted Appellant of
possession and PWID as it related to the heroin.
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sentenced Appellant to 27-54 months’ incarceration on December 19, 2013.

On December 4, 2014, this Court affirmed Appellant’s judgment of sentence.

Appellant did not file a petition for allowance of appeal with our Supreme

Court.

        On April 1, 2015, Appellant timely filed the instant pro se PCRA

petition. On May 11, 2015, the PCRA court appointed counsel. On June 12,

2015, the Commonwealth filed a response to the PCRA petition and

requested the PCRA court dismiss the petition without a hearing. On August

5, 2015, the PCRA court issued a notice of its intent to dismiss the petition

without a hearing, pursuant to Pa.R.Crim.P. 907.          On August 24, 2015,

Appellant filed a counseled response to the court’s notice.     On October 2,

2015, the PCRA court dismissed Appellant’s petition. On October 29, 2015,

Appellant timely filed a notice of appeal.4

        Appellant raises the following issues for our review:

           A. DID THE PCRA COURT ERR [WHEN] IT FAILED TO HOLD
           AN EVIDENTIARY HEARING TO ADDRESS THE ISSUES
           RAISED BY [APPELLANT] IN HIS PCRA PETITION,
           SPECIFICALLY TRIAL COUNSEL’S FAILURE TO PROPER[L]Y
           CROSS EXAMINE KEC[H] AND ARGUE PRIOR RECORD
           SCORE?

           B. DID THE PCRA COURT ERR WHEN IT TOOK JUDICIAL
           NOTICE OF RECORDS REGARDING KEC[H]’S CASE AND
           THE FACT THAT SHE WAS ON TWO YEARS’ PROBATION, IN
           DETERMINING THAT A HEARING WAS NOT REQUIRED TO
           ADDRESS TRIAL COUNSEL’S INEFFECTIVENESS?
____________________________________________


4
    Both Appellant and the PCRA court complied with Pa.R.A.P. 1925.



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          C. DID THE PCRA COURT ERR WHEN IT FAILED TO HOLD A
          HEARING TO ADDRESS APPELLANT’S CLAIM THAT TRIAL
          COUNSEL WAS INEFFECTIVE AT SENTENCING WHEN
          TRIAL COUNSEL FAILED TO ARGUE THAT [] APPELLANT
          HAS A PRIOR RECORD SCORE OF 5, NOT [REPEAT FELONY
          OFFENDER (“RFEL”)] AS STATED BY THE DISTRICT
          ATTORNEY?

Appellant’s Brief at 4.

       In his combined issues, Appellant argues the PCRA court erred by

failing to conduct an evidentiary hearing regarding his ineffective assistance

of counsel claims. He claims that his trial counsel was ineffective for failing

to properly cross-examine a witness and for failing to argue his prior record

score at the sentencing hearing, and that an evidentiary hearing could

determine counsel’s ineffectiveness.5 We disagree.

       Our well-settled standard of review for orders denying PCRA relief is

“to determine whether the determination of the PCRA court is supported by

the evidence of record and is free of legal error. The PCRA court’s findings

will not be disturbed unless there is no support for the findings in the

certified record.”      Commonwealth v. Barndt, 74 A.3d 185, 191-192

(Pa.Super.2013) (internal quotations and citations omitted).




____________________________________________


5
 Appellant’s PCRA petition is timely and his claim of ineffective assistance of
counsel is cognizable under the PCRA. See 42 Pa.C.S. § 9543(a)(2)(ii).




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       This Court follows the Pierce6 test adopted by our Supreme Court to

review claims of ineffective assistance of counsel:

          When a petitioner alleges trial counsel’s ineffectiveness in
          a PCRA petition, he must prove by a preponderance of the
          evidence that his conviction or sentence resulted from
          ineffective   assistance    of   counsel   which,     in   the
          circumstances of the particular case, so undermined the
          truth-determining process that no reliable adjudication of
          guilt or innocence could have taken place. We have
          interpreted this provision in the PCRA to mean that the
          petitioner must show: (1) that his claim of counsel’s
          ineffectiveness has merit; (2) that counsel had no
          reasonable strategic basis for his action or inaction; and
          (3) that the error of counsel prejudiced the petitioner-i.e.,
          that there is a reasonable probability that, but for the error
          of counsel, the outcome of the proceeding would have
          been different. We presume that counsel is effective, and
          it is the burden of Appellant to show otherwise.

Commonwealth v. duPont, 860 A.2d 525, 531 (Pa.Super.2004), appeal

denied, 889 A.2d 87 (Pa.2005), cert. denied, 547 U.S. 1129, 126 S.Ct 2029,

164 L.Ed.2d 782 (2006) (internal citations and quotations omitted). “If an

appellant fails to prove by a preponderance of the evidence any of the

Pierce prongs, the Court need not address the remaining prongs of the

test.” Commonwealth v. Fitzgerald, 979 A.2d 908, 911 (Pa.Super.2009),

appeal denied, 990 A.2d 727 (Pa.2010) (citation omitted).

       When a claim has arguable merit, and there has been no evidentiary

hearing below to determine if there was a reasonable basis for counsel’s

actions, this Court will remand for an evidentiary hearing. Commonwealth
____________________________________________


6
    Commonwealth v. Pierce, 527 A.2d 973 (Pa.1987).



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v. Shablin, 524 A.2d 511, 512 (Pa.Super.1987) (quoting Commonwealth

v. Spotts, 491 A.2d 132, 134 (Pa.Super.1985)).

     However, “[t]here is no absolute right to an evidentiary hearing.”

Commonwealth v. Burton, 121 A.3d 1063 (Pa.Super.2015) (en banc).

“[I]f the PCRA court can determine from the record that no genuine issues of

material fact exist, then a hearing is not necessary.”    Commonwealth v.

Springer, 961 A.2d 1262, 1264 (Pa.Super.2008) (quoting Commonwealth

v. Jones, 942 A.2d 903, 906 (Pa.Super.2008), appeal denied, 956 A.2d 433

(Pa.2008)).

        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.
        [Commonwealth v. Jordan, 772 A.2d 1011, 1014
        (Pa.Super.2001)]. 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. Commonwealth v. Hardcastle, 701
        A.2d 541, 542-543 ([Pa.]1997).

Commonwealth v. Khalifah, 852 A.2d 1238, 1239-40 (Pa.Super.2004).

     Further,

        remand for an evidentiary hearing is not a discovery tool
        wherein     counsel    may    conduct    investigation  and
        interrogation to search for support for vague or boilerplate
        allegations of ineffectiveness. Rather, appellant “must set
        forth an offer to prove at an appropriate hearing sufficient
        facts upon which a reviewing court can conclude that trial
        counsel may have, in fact, been ineffective,” before
        remand for an evidentiary hearing will be granted.
        Commonwealth v. Pettus, 424 A.2d 1332, 1335

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         ([Pa.]1981). Moreover, if it is clear that: the allegation
         lacks arguable merit; an objectively reasonable basis
         designed to effectuate appellant’s interests existed for
         counsel’s actions or inactions; or appellant was not
         prejudiced by the alleged error by counsel, then an
         evidentiary hearing is unnecessary. Commonwealth v.
         Clemmons, 479 A.2d 955, 957 ([Pa.]1984).

Commonwealth v. Petras, 534 A.2d 483, 485 (Pa.Super.1987).

      Appellant’s argument, that his trial counsel was ineffective for failing to

effectively argue that his prior record score was a 5, not a RFEL as stated by

the Commonwealth, is belied by the record.         At the sentencing hearing,

defense counsel stated, “we believe that he should be a five, not a [RFEL].”

N.T., 12/19/2013, at 4. Appellant testified: “I strongly believe I should be a

five too. I mean[,] we went over the guidelines three times. When I took

plea bargains, I was a five; and then like all of a sudden, I exercise my right

to trial; and I’m – and I’m a RFEL. It’s just – it’s just not adding up to me.”

Id. at 15.

      In response to trial counsel’s request that Appellant be sentenced to

the State Intermediate Punishment (“SIP”) Program specifically geared to

rehabilitation for drug problems, the trial court stated:

         Even if you calculate it at a five, it’s right up there, from
         1996 pretty much continuing up till this time, his current
         arrest; and also, his having served – beginning April 23,
         2005, it was a guilty plea, twenty – no, the sentence was
         24 to 48 months for [PWID], among other violations
         including ’05 in the United States District Court, sentenced
         by plea involving the U.S. Bureau of Prisons, conspiracy to
         possess a firearm by a convicted felon.




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          So all of those convictions in addition to the other ones I
          didn’t even mention are indicative of a history that – that
          does not warrant [Appellant’s] participation in the SIP
          Program… And with his long record, he is not amenable to
          the [SIP] Program in my humble opinion.

Id. at 8-9.

       After   considering     defense     counsel’s   argument   and   Appellant’s

testimony, the trial court ultimately determined, “It does appear to the court

that this is a repeat felon… We do believe that confinement is appropriate,

not only appropriate but necessary.” Id. at 21. Further, Appellant concedes

in his brief that a prior record score does not control the ultimate sentence.

See Appellant’s Brief at 11. Thus, even if counsel erred, Appellant suffered

no prejudice.7

       Appellant’s remaining allegations of ineffectiveness regard his trial

counsel’s failure to properly cross-examine witness Laura Kech. He claims

Kech testified falsely at his trial and later received a favorable sentence for

doing so. Appellant concludes the PCRA court erred by failing to conduct an

evidentiary hearing to determine the exact details trial counsel knew about


____________________________________________


7
   Appellant directs us to Commonwealth v. Spenny, 128 A.3d 234
(Pa.Super.2015) for the proposition that an improper classification as a RFEL
is “reason enough to remand for re-sentencing.” Appellant’s Brief at 11. In
Spenny, this Court held, on direct appeal, that the trial court abused its
discretion in determining the appellant was a RFEL. Spenny, 128 A.3d at
251. Because Appellant does not argue appellate counsel was ineffective for
failing to raise a discretionary aspects of sentencing claim on direct appeal,
this Court’s holding in Spenny is irrelevant.



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Kech’s sentencing to demonstrate that she did not cross-examine her

effectively. Again, we disagree.

     After Kech testified that she was charged with possessing heroin and

drug paraphernalia relating to the December 13, 2012 traffic stop, the

prosecutor questioned Kech about her guilty plea and probation.

        [PROSECUTOR]: Were any of the terms of your plea for
        probation    conditioned on your testifying  against
        [Appellant]?

        [KECH]: No.

        [PROSECUTOR]: You do have a criminal record as well?

        [KECH]: Yes.

        [PROSECUTOR]:      I believe you have retail theft or two,
        correct?

        [KECH]: Yes.

                                   *    *    *

        [PROSECUTOR]: Now, obviously these deal with you
        stealing things that aren’t yours. Why was it that you are
        stealing other people’s property?

        [KECH]: To get money to buy drugs.

        [PROSECUTOR]: How long have you had a drug problem?

        [KECH]: About two years.

N.T., 10/22/2013, at 93-94.

     Defense counsel then cross-examined Kech. Id. at 95-105. Although

defense counsel did not question Kech about how her testimony could affect

her sentence, the prosecutor had already asked Kech if any of the terms of

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her plea were conditioned on her testimony at Appellant’s trial, and she

denied the allegation.         Although Appellant is correct that “[t]rial counsel

could… have argued that Kech’s testimony was conveniently located between

the filing of the [plea] and her sentencing[,]”8 she was not required to do so.

        Further, counsel’s failure to cross-examine Kech in this manner did not

prejudice Appellant.       Appellant testified that he had 30 bags of heroin

because he was a heroin addict, but he did not intend to sell the heroin.

N.T., 10/22/2013, at 148.         Kech did not testify that Appellant intended to

sell the heroin, but rather testified, upon cross examination, that she used

about 10 to 20 bags of heroin per day and that her friends, including

Appellant, used that much, “if not more.”         Id. at 105.   The jury chose to

believe that Appellant possessed the heroin with the intent to deliver it,

despite what Appellant and Kech stated, and trial counsel’s failure to cross-

examine Kech regarding the timing of her sentencing did not prejudice

Appellant.

        Here, Appellant presented no genuine issues of material fact.       Thus,

the PCRA court did not err in denying Appellant’s PCRA petition without

conducting an evidentiary hearing, and his issues merit no relief.

        Order affirmed.



____________________________________________


8
    Appellant’s Brief at 10.



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/28/2016




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