J-S43019-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                         Appellee

                    v.

TRACEY RAYNARD BRADLEY

                         Appellant                   No. 2230 MDA 2015


             Appeal from the PCRA Order November 24, 2015
               In the Court of Common Pleas of York County
            Criminal Division at No(s): CP-67-CR-0004137-2010


BEFORE: GANTMAN, P.J., PANELLA, J., and JENKINS, J.

MEMORANDUM BY PANELLA, J.                              FILED JULY 05, 2016

      Appellant, Tracey Raynard Bradley, appeals pro se from the order

dismissing his petition pursuant to the Post Conviction Relief Act (“PCRA”).

Bradley raises multiple challenges to the PCRA court’s decision. After careful

review of Bradley’s filings and the rest of the certified record, we affirm on

the basis of the PCRA court’s substantive reasoning.

      A jury convicted Bradley of first-degree murder and associated crimes

arising from the murder of Lee Choppin in Choppin’s motel room. This Court

affirmed the judgment of sentence on February 25, 2014. The Supreme

Court of Pennsylvania declined allowance of appeal on July 25, 2014. On

May 5, 2015, Bradley filed the instant, timely first PCRA petition.

      Counsel was appointed to represent Bradley, but subsequently was

permitted to withdraw under Tuner/Finley procedures. The PCRA court
J-S43019-16


provided Bradley with notice of its intent to dismiss his petition. In response,

Bradley filed a request to be permitted to file an amended PCRA petition,

which the PCRA court denied, while granting Bradley additional time to

respond to its notice to dismiss. Bradley did not respond, and the PCRA court

dismissed his petition. This timely appeal followed.

      As a prefatory matter, we must address whether Bradley has waived

all issues on appeal pursuant to Pa.R.A.P. 1925. The PCRA court ordered

Bradley to file a statement of matters complained of on appeal, and has

notified us that it never received such a document from Bradley. The

Commonwealth rightly argues that Bradley’s failure to comply with the PCRA

court’s directive renders all of Bradley’s issues on appeal waived. See

Commonwealth v. Hill, 16 A.3d 484 (Pa. 2011).

      In response to the PCRA court’s and Commonwealth’s arguments,

Bradley has filed multiple documents with this Court in an attempt to

establish that he mailed a statement of matters complained of on appeal to

the PCRA court from the prison in which he is incarcerated. Normally, this

situation would call for a remand to the PCRA court to make factual findings

regarding whether Bradley has complied with Rule 1925 pursuant to the

prisoner mailbox rule. See Commonwealth v. Jones, 700 A.2d 423 (Pa.

1997).

      In this case, however, we conclude that such a step would be a waste

of judicial resources, as the PCRA court, in addition to asserting Bradley’s


                                     -2-
J-S43019-16


non-compliance with Rule 1925, has thoroughly and adequately addressed

the claims Bradley seeks to raise on appeal, to the extent that we can

identify them. To the extent that Bradley is seeking to raise issues in

addition to those addressed by the PCRA court, we conclude such issues are

waived due to the substantial defects in Bradley’s briefs.1

       “On appeal from the denial of PCRA relief, our standard and scope of

review is limited to determining whether the PCRA court’s findings are

supported by the record and without legal error.” Commonwealth v.

Edmiston, 65 A.3d 339, 345 (Pa. 2013) (citation omitted), cert. denied,

Edmiston v. Pennsylvania, 134 S. Ct. 639 (2013). “[Our] 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 PCRA court

level.” Commonwealth v. Koehler, 36 A.3d 121, 131 (Pa. 2012) (citation

omitted).



____________________________________________


1
  “When a party’s brief fails to conform to the Rules of Appellate Procedure
and the defects are substantial, this Court may, in its discretion, quash or
dismiss the appeal pursuant to Rule 2101.” Giant Food Stores, LLC v. THF
Silver Spring Development, L.P., 959 A.2d 438, 443 (Pa. Super. 2008)
(citing Pa.R.A.P. 2101). Furthermore, “[w]hen issues are not properly raised
and developed in briefs, when the briefs are wholly inadequate to present
specific issues for review[,] a Court will not consider the merits thereof.”
Branch Banking and Trust v. Gesiorski, 904 A.2d 939, 942-943 (Pa.
Super. 2006). This Court does not take on the mantle of advocate and
perform as appellant’s counsel. See Commonwealth v. Maris, 629 A.2d
1014, 1017 (Pa. Super. 1993).



                                           -3-
J-S43019-16


       “[T]his Court applies a de novo standard of review to the PCRA court’s

legal conclusions.” Commonwealth v. Spotz, 18 A.3d 244, 259 (Pa. 2011)

(citation omitted). In order to be eligible for PCRA relief, a petitioner must

plead and prove by a preponderance of the evidence that his conviction or

sentence arose from one or more of the errors listed at 42 Pa.C.S.A.

§ 9543(a)(2). These issues must be neither previously litigated nor waived.

See 42 Pa.C.S.A. § 9543(a)(3).

       Bradley first argues that his right to be free of coercive questioning

was violated. As the PCRA court accurately notes, however, this issue has

been extensively litigated at trial and on direct appeal. See PCRA Court

Opinion, 2/23/16, at 1-2. It is therefore not the basis for relief under the

PCRA. See 42 Pa.C.S.A. § 9543(a)(3).

       Next,    Bradley     argues,     in     a   multifaceted   attack,2   that   the

Commonwealth failed to prove the cause of Choppin’s death. Once again the

PCRA court correctly notes that this issue was extensively litigated at trial

and on direct appeal, is therefore not a basis for relief under the PCRA. See

PCRA Court Opinion, 2/23/16, at 1, 3.

       Bradley’s final arguments are all based on allegations of trial counsel

ineffectiveness. It is well settled that


____________________________________________


2
  Among others, Bradley contends that the Commonwealth’s medical expert
committed perjury at trial.



                                             -4-
J-S43019-16


      [t]o plead and prove ineffective assistance of counsel a
      petitioner must establish: (1) that the underlying issue has
      arguable merit; (2) counsel’s actions lacked an objective
      reasonable basis; and (3) actual prejudice resulted from
      counsel's act or failure to act.

Commonwealth v. Rykard, 55 A.3d 1177, 1189-1190 (Pa. Super. 2012).

“Generally, where matters of strategy and tactics are concerned, counsel’s

assistance is deemed constitutionally effective if he chose a particular course

that had some reasonable basis designed to effectuate his client’s interests.”

Commonwealth v. Colavita, 993 A.2d 874, 887 (Pa. 2010) (citation

omitted). A failure to satisfy any prong of the test will require rejection of

the claim. See Commonwealth v. Spotz, 84 A.3d 294, 311 (Pa. 2014).

      The right to an evidentiary hearing on a post-conviction petition is not

absolute. See Commonwealth v. Jordan, 772 A.2d 1011, 1014 (Pa.

Super. 2001). 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. See id. 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. See Commonwealth v. Hardcastle, 701 A.2d 541,

542-543 (Pa. 1997).




                                     -5-
J-S43019-16


         In “ineffectiveness claims in particular, if the record reflects that the

underlying issue is of no arguable merit or no prejudice resulted, no

evidentiary hearing is required.” Commonwealth v. Bauhammers, 92

A.3d 708, 726-727 (Pa. 2014) (citation omitted). “Prejudice is established if

there is a reasonable probability that, but for counsel’s errors, the result of

the proceeding would have been different. A reasonable probability is a

probability     sufficient   to   undermine    confidence   in   the   outcome.”

Commonwealth v. Stewart, 84 A.3d 701, 707 (Pa. Super. 2013) (citations

and internal quotation marks omitted). We review a PCRA court’s decision to

deny a claim without a hearing for an abuse of discretion. See id.

         In reviewing Bradley’s claims of ineffective assistance of trial counsel,

the PCRA court found that Bradley had failed to establish arguable merit for

any of them. See Trial Court Opinion, 2/23/16, at 3-8. We can discern no

abuse of discretion in the trial court’s reasoning, and therefore affirm on that

basis.

         Order affirmed. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/5/2016




                                        -6-
                                                                                   Circulated 06/15/2016 09:54 AM




     IN THE COURT OF COMMON PLEAS OF YORK COUNTY, PENNSYLVANIA

COMMONWEALTH              OF PENNSYLVANIA                   NO. CP-67-CR-4137-2010


                 v.
                                                                                              h'

TRACEY R. BRADLEY,                                                                ,-
                                                                                  ,'>
                                                                                              ....,
                                                                                              '".
                                                                                                      (


                                                                                                      "
                Defendant                                                         rnO
                                                                                  :::uc>      i'r]    \',:;

                                                                                  :3:: ::f~   0'';    n :;;'
                                                                                              N       ).::=;-:   ,.
                                                                                  00          w       r-r:-.'
                                                                                  "'1-i(j';
                                                                                                      (J'-;: . ";
APPEARANCES:                                                                      (J~~
                                                                                              ~        . ;;;'-.'
                                                                                                      r..-, .,;: ". :
                                                                                  orTt

                 JAMES ZAMKOTOWICZ, Esquire
                                                                                  c·r-
                                                                                  ~]r-
                                                                                  -i
                                                                                  (f)
                                                                                              --
                                                                                              ::x

                                                                                              a
                                                                                                      z""- .'
                                                                                                      -(-<r'=
                                                                                                      m-< Pl
                                                                                                      ::0        0
                 Assistant District Attorney                                                  \D




                            . TRIAL COURT'S 1925Ci1~TATEMENT

       Defendant has appealed to the Superior Court from the Trial Court's order Denying

PCRA entered on November 24, 2015.

       The Trial Court issued a directive to Defendant on December 21, 2015, to file a

Statement of Errors Complained        of on Appeal (hereinafter   "Statement")   pursuant to

Pennsylvania     Rule of Appellate Procedure 1925(b).      To date, Defendant has not filed a

Statement.      As a result, the Trial Court requests that the Superior Court dismiss

Defendant's     appeal for failure to file a Statement.

       If Defendant's      appeal is not dismissed, then this 1925(a) Statement is submitted

as a supplement to the record and the Trial Court's order of November 24, 2015.

PREVIOUSLY            LITIGATED   ISSUES UNDER THE PCRA

       According to the Post Conviction Relief Act, to be entitled to relief under the Act,

the allegation of error must not have been previously litigated or waived.         42 Pa,C.S.A

§9543 (a)(3),     An issue has been previously litigated if the highest appellate court in

which the petitioner could have had review as a matter of right has ruled on the merits of
the issue. 42 Pa.C.S.A. 9544(a).

DEFENDANT'S      CONFESSION                                               -,
       In Defendant's pro se PCRA, he claims that his rights under the 5th and 14th

Amendments as held in Miranda v. Arizona as well as Commonwealth v. Gwyn were

violated.

       In this case, the Issue of Defendant's confession was raised in an Omnibus

Pre-Trial Motion filed on October 4,2010, seeking to suppress Defendant's statements to

police. After hearings on the Motion, the Trial Court denied the Omnibus Pre-Trial

Motion on March 2, 2011.

       This issue was again raised in Defendant's Post-Sentence Motion filed on

November 7,2012.     ·The Trial Court denied this Motion by Order entered on April 8,

2013, and Memorandum Opinion entered on April 10, 2013.

       A timely appeal to the Superior Court was filed on April 30, 2013. This issue was

again raised as part of this appeal. The Superior Court affirmed the Trial Court on

February 25, 2014.

                                                                          l
                      Defendant filed a Petition for Allowance of Appeal with the

Pennsylvania Supreme Court, which was denied on July 25,2014.

       Because the highest appellate court in which the petitioner could ave had review

as a matter of right has ruled on the merits of the issue, this issue has been previously

litigated and Defendant is not entitled to PCRA relief.

CAUSE OF DEATH

       In Defendant's Pro Se PCRA, he contends that the evidence was legally

insufficient to establish the cause of death beyond a reasonable doubt. This issue was


                                             2
raised during trial.   Defendant had his own expert, Dr. Jonathan Briskin, testify regarding

the cause of death.     (N.T., 9/10/12, pages 820-873).         Defendant claimed at trial that this

expert supports Defendant's     contention that the Victim died of natural causes.           The jury

chose not to believe Defendant's        expert witness.

       This issue was also raised in Defendant's Post-Sentence             Motion, which was

denied by the Trial Court by Order entered on April 8, 2013, and Memorandum                 Opinion

entered on April 10, 2013.

       This issue was also raised on appeal to the Superior Court.             The Superior Court

affirmed the Trial Court on February 25,2014.             Defendant filed a Petition for Allowance

of Appeal with the Pennsylvania     Supreme Court, which was denied on July 25,2014.

       Because the highest appellate court in which the petitioner could have had review

as a matter of right has ruled on the merits of the issue, this issue has been previously

litigated and Defendant is not entitled to PCRA relief.

WITNESSES      TEARA HARDY AND AMANDA JO WIRE-WILLIAMS

       Defendant also contends in his pro se PCRA that the testimony of Commonwealth

witnesses Teara Hardy and Amanda Jo Wire-Williams               was prejudicial,    as having an

interest in the outcome of the trial.     At the outset, all Commonwealth          witnesses are

prejudicial to one extent or another, otherwise they would not be called by the

Commonwealth      to testify against defendant.       Also, if Defendant is trying to claim

ineffective assistance of counsel, he is required to demonstrate:

       1. That the underlying claim is of arguable merit;




                                                  3
       2. That counsel's action or inaction was not grounded on any reasonable basis

             designed to effectuate his client's interest; and

       3. That but for that act or omission, the outcome of the proceedings                    would have

             been different.

Commonwealth       v. Abu-Jamal,      553 Pa. 485, 505, 720 A.2d 79 (1998)(citation             omitted).

"There is a presumption        in our law that counsel is effective.      It is Appellant's     burden to

prove all three prongs of this ineffectiveness          standard."   .iQ.(citations omitted).      "Further,

if, upon review, it is clear that Appellant has failed to meet the prejudice prong, the claim

may be dismissed on that basis alone without determination               of whether the first and .

second prongs ofthe      ineffectiveness     standard have been met."          !sl (citation    omitted).

"Also, a petitioner cannot obtain PCRA review of previously litigated claims by alleging

ineffective assistance of counsel and presenting new theories of relief to support the

previously litigated claims."       Id. (citation omitted).

       In this case, Amanda Williams testified that:

   •   On the date in Question (5/26/10). she worked at the front desk at Motel 6 (N.T.,
       9/5/12, page 179);

   •   She identified Defendant as someone who was staying at the Motel 6 at that time
       and that she knows Defendant's name (N.T., 9/5/12, pages 179-180):

   •   She knows Defendant's voice from both in-person contact and over the phone
       (N.T., 9/5/12, pages 182-183);

   •   She recognized Defendant's voice on a phone call during which the caller
       requested no room service in room 128, the decedent's room (N.T., 9/5/12, pages
       195-197).

       On cross-examination,         in an attempt to impeach Ms. Williams, Trial Counsel

questioned    her regarding how many guests were staying there that weekend because it

                                                    4
was Memorial Day weekend.          (N.T., 9/5/12, page 207-208).     Ms. Williams indicated that

there were probably a lot of guests that weekend.          (N.T., 9/5/12, page 208).    Trial,

Counsel also asked her about how many phone calls she takes in any particular day.

(N.T., 9/5/12, page 208).      Ms. Williams indicated she can take as little as ten or as many

as thirty or forty calls.   (N.T., 9/5/12, page 208).   Trial Counsel also elicited testimony

from Ms. Williams that she was in contact with a substantial number of people during the

Memorial Day weekend.          (N.T., 9/5/12, page 209).    The purpose of this cross

examination was to give the jury reason to doubt whether Ms. Williams could have

possibly identified Defendant or his voice out of all those phone calls or all those people

she dealt with that weekend.       (N.T., 9/5/12, page 209).    There is no evidence, and

Defendant has not provided any, that Ms. Williams had any interest whatsoever             in the

outcome of the trial, or any reason to believe that that was the case.

                Teara Hardy testified that:

   •    She knows Defendant       because he is her ex-boyfriend's    father (N.T., 9/6/12, page
        557);

   •   On the day of decedent's death, she saw Defendant come out of a first floor motel
       room carrying a laptop bag and some keys with a string wrapped around it (N.T.,
       9/6/12, pages 568-569);

   •    Defendant handed a passenger in Ms. Hardy's car the laptop bag (N.T., 9/6/12,
        page 570):

   •   She saw Defendant get into a silver van and drive off [which turned out to be the
       same type as decedent's] (N.T., 9/6/12, page 574).

   Ms. Hardy also testified that she had been charged with Receiving Stolen Property In

   connection to this case, and that she expects to be admitted into the ARD program in

   exchange for her truthful testimony.       (N.T., 9/6/12, pages 577-579).     Hence the jury

                                                5
    was well aware that she expected to receive something in exchange for her testimony.

    On cross-examination,     Trial Counsel elicited testimony from Ms. Hardy that she has

    not been accepted into the ARD Program yet because they were waiting for

    Defendant's trial to take place.    (N.T., 9/6/12, pages 579-580).

        Given the foregoing, Defendant is not entitled to PCRA relieffor ineffective

assistance of counsel because he has failed to meet his burden to show that his claim has

arguable merit, that Trial Counsel's action or inaction was not grounded on any

reasonable basis designed to effectuate Defendant's interest, nor has he met his burden

to show that but for that act or omission, the outcome of the proceedings would have been

different.   Therefore, this claim fails to meet all three prongs of the ineffectiveness

standard.

FAILURE TO ADEQUATELY             CROSS-EXAMINE        COMMONWEALTH          WITNESSES

        Defendant contends that Trial Counsel was ineffective for failing to adequately

cross-examine several Commonwealth witnesses, including the arresting officers

(regarding Defendant's statements to police), Teara Hardy and Amanda Williams

(regarding whether they had an inter~st in the outcome of the case), and Dr. Mihalakis

(regarding the cause of death).

       The Trial Court has previously addressed the testimony of Teara Hardy and

Amanda Williams above.

        In regard to the arresting officers, Detective John Hartley, who was one of the

Officers who took custody of Defendant, was extensively cross-examined          by Trial

Counsel regarding why the Officers took Defendant to Headquarters instead of Central


                                               6
Booking, whether he was Mirandized, about Defendant requesting to speak to his

Attorney, who initiated the conversation,    and the length of time Defendant was in custody.

(N.T., 9/7/12, pages 690-693,699-702).        There is no indication, and Defendant has not

provided any, that Trial Counsel's cross-examination      of Detective John Hartley was in any

way ineffective.

        Likewise, Trial Counsel extensively cross-examined       Detective David Steffen, the.

other Officer who took custody of Defendant.         (N.T., 9/10/12, pages 751-755).   Trial

Counsel questioned Detective Steffen regarding the timeline, Defendant's         request for an

Attorney and whether that Attorney was contacted and provided for Defendant, about

taking Defendant back to Headquarters       instead of Central Booking, and the length of the

interrogation.     (N.T., 9/10/12, pages 751-755).     Again, there is no indication, and

Defendant has not provided any, that Trial Counsel's cross-examination         of Detective

David Steffen was in any way ineffective.

        In regard to Dr. Isadore Mihalakis and his testimony regarding the cause of death,

Trial Counsel not only cross-examined       Dr. Mihalakis (N.T., 9/10/12, pages 809-812), but

Trial Counsel also called his own expert, Dr. Jonathan Briskin, for the defense to

contradict the findings of Dr. Mihalakis.    (N.T., 9/10/12, pages 820-873).     As a result,

there is no indication that Trial Counsel was ineffective in the cross-examination      of Dr.

Mihalakis, or by calling Dr. Briskin to contradict his testimony.

        Given the foregoing, Defendant's claims of ineffective assistance of counsel do not

have arguable merit, and Defendant has failed to meet the burden of proving that

counsel's action or inaction was not grounded on any reasonable basis designed to


                                                7
effectuate Defendant's   interest and that but for that act or omission. the outcome of

Defendant's   trial would have been different.       Therefore. Defendant's   claims fail to meet

all three prongs of the ineffectiveness   standard.

        The Clerk of Courts is directed to provide a copy of this order to Attorney James

Zamkotowicz    and to Defendant Tracey R. Bradley.




Date:   _:?_f _2 3_ _1~'----_
                     1




                                                 8
