J-S02014-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                           IN THE SUPERIOR COURT OF
                                                             PENNSYLVANIA
                            Appellee

                       v.

LAMONT HARVEY

                            Appellant                        No. 3230 EDA 2013


                Appeal from the PCRA Order November 15, 2013
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0605771-2005


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

MEMORANDUM BY MUNDY, J.:                                     FILED MARCH 10, 2015

       Appellant, Lamont Harvey, appeals from the November 15, 2013 order

dismissing his first petition filed pursuant to the Post Conviction Relief Act

(PCRA), 42 Pa.C.S.A. §§ 9541-9546. After careful review, we affirm.

       The PCRA court has summarized the relevant procedural history of this

case as follows.

                    On March 12, 2007, [Appellant] was found
              guilty by a jury of [i]nvoluntary [d]eviate [s]exual
              [i]ntercourse, [i]ndecent [a]ssault of a person under
              13, [c]orrupting the [m]orals of a [m]inor, and
              [e]ndangering     the   [w]elfare    of   [c]hildren.[1]
              [Appellant] was sentenced on August 3, 2007 to nine
              and one half to twenty years’ imprisonment for
              [i]nvoluntary [s]exual [i]ntercourse, one and one
____________________________________________


1
   18 Pa.C.S.A.       §§    3123(a)(1),        3126(a)(7),   6301(a),   and   4304(a),
respectively.
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              half to three years’ imprisonment for [i]ndecent
              [a]ssault and for [c]orrupting the [m]orals of a
              [m]inor, and two to five years’ imprisonment for
              [e]ndangering the [w]elfare of [c]hildren.        The
              sentences were imposed to run concurrently except
              for the sentence for [e]ndangering the [w]elfare of
              [c]hildren, which was imposed to run consecutively
              to the other sentences. Additionally, [Appellant] was
              found to be a sexually violent predator for the
              purposes of Megan’s Law.[2]

                    [Appellant] filed a timely [n]otice of [a]ppeal;
              th[e trial c]ourt issued an [o]pinion on October 30,
              2008, indicating that [Appellant] had waived all
              claims on appeal due to his failure to file a
              [Pennsylvania Rule of Appellate Procedure] 1925(b)
              [s]tatement of [m]atters [c]omplained of on
              [a]ppeal. At that time, [n]otes of [t]estimony were
              incomplete for two days of [Appellant’s] trial, March
              6 and 7 of 2007; the record for the rest of the trial
              and sentencing were available. …

                     The Superior Court remanded the case for
              completion of the [n]otes of [t]estimony, a [f]inal
              [s]tatement of [m]atters [c]omplained of on
              [a]ppeal, and a [s]upplemental [trial court o]pinion.
              At some point before she transcribed the [n]otes of
              [t]estimony from March 6 and 7[, 2007], the court
              reporter assigned to the case resigned. The Court
              Reporters    Administration   sent    a   letter   to
              [Appellant’s] attorneys on September 21, 2010,
              indicating that the [n]otes of [t]estimony for those
              two days were permanently unavailable.

                    On August 30, 2011, the Superior Court
              affirmed [Appellant’s] conviction ….[3] The

____________________________________________


2
    Former 42 Pa.C.S.A. §§ 9791-9799.41.
3
  Commonwealth v. Harvey, 32 A.3d 717 (Pa. Super. 2011), appeal
denied, 37. A.3d 1194 (Pa. 2012).



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              Pennsylvania Supreme Court denied allocator on
              January 5, 2012.

PCRA Court Opinion, 4/25/14, at 1-2. On March 19, 2012, Appellant filed a

timely pro se PCRA petition.           Counsel was appointed for Appellant, and

counsel filed an amended PCRA petition on February 28, 2013. On August

23, 2013, the PCRA court issued its notice to dismiss Appellant’s petition

without an evidentiary hearing pursuant to Pennsylvania Rule of Criminal

Procedure 907. Appellant did not file a response. The PCRA court dismissed

Appellant’s PCRA petition on September 27, 2013.           Thereafter, on October

8, 2013, the PCRA court vacated its September 27, 2013 order and granted

Appellant an additional 20 days to file a response to the PCRA court’s Rule

907 notice. Trial Court Order, 10/8/13. Appellant did not file a response to

the PCRA court’s Rule 907 notice, and the PCRA court dismissed Appellant’s

PCRA petition on November 15, 2013.              On November 20, 2013, Appellant

filed a timely notice of appeal.4

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

              I. Whether the [PCRA court] was in error in denying
              … Appellant’s PCRA petition without an evidentiary
              hearing on the issues raised in the amended PCRA
              petition regarding trial counsel’s ineffectiveness[?]


____________________________________________


4
  The trial court did not order Appellant to file a Rule 1925(b) statement of
errors complained of on appeal. On April 25, 2014, the trial court authored
an opinion based on the claims Appellant raises in his amended PCRA
petition. See PCRA Court Opinion, 4/25/14, at 1-6.



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              II. Whether the [PCRA court] was in error in not
              granting relief on the PCRA petition alleging counsel
              was ineffective[?]

Appellant’s Brief at 8 (footnote omitted).

      When reviewing PCRA matters, we are mindful of the following

principles.

              We consider the record in the light most favorable to
              the prevailing party at the PCRA level. This review is
              limited to the evidence of record and the factual
              findings of the PCRA court.         We afford great
              deference to the factual findings of the PCRA court
              and will not disturb those findings unless they have
              no support in the record. Accordingly, as long as a
              PCRA court’s ruling is free of legal error and is
              supported by record evidence, we will not disturb its
              ruling. Nonetheless, where the issue pertains to a
              question of law, our standard of review is de novo
              and our scope of review is plenary.

Commonwealth v. Pander, 100 A.3d 626, 630 (Pa. Super. 2014) (en

banc) (internal quotation marks and citation omitted). Further, 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 Section 9543(a)(2) of the PCRA.         42

Pa.C.S.A. § 9543(a)(2). One such error, which provides a potential avenue

for relief, is ineffective assistance of counsel.   Id. § 9543(a)(2)(ii).   The

issues raised must be neither previously litigated nor waived.              Id.

§ 9543(a)(3).

      Additionally, with regard to evidentiary hearings at the post-conviction

stage of proceedings, we observe the following.

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            [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 issues of material
            fact in controversy and in denying relief without
            conducting an evidentiary hearing.

Commonwealth v. Miller, 102 A.3d 988, 992 (Pa. Super. 2014) (citation

omitted). “We stress that an evidentiary hearing is not meant to function as

a fishing expedition for any possible evidence that may support some

speculative claim of ineffectiveness.” Commonwealth v. Roney, 79 A.3d

595, 604-605 (Pa. 2013) (internal quotation marks and citation omitted).

“The controlling factor … is the status of the substantive assertions in the

petition.   Thus, as to 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.

Baumhammers, 92 A.3d 708, 726-727 (Pa. 2014).               This Court reviews the

decision to dismiss a PCRA petition without conducting an evidentiary

hearing for an abuse of discretion. Miller, supra.

      We now turn our review to Appellant’s claims of ineffectiveness, for if

we determine that Appellant’s claims are without arguable merit or Appellant

has not established prejudice as a result of counsel’s action or inaction, the




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PCRA court was not required to hold an evidentiary hearing.                         See

Baumhammers, supra.

      Appellant argues the PCRA court erred in not granting him relief based

on his claims of ineffective assistance of counsel. Id. at 16-27. “In order to

obtain relief on a claim of ineffectiveness, a PCRA petitioner must satisfy the

performance and prejudice test set forth in Strickland v. Washington, 466

U.S. 668 (1984).” Commonwealth v. Reid, 99 A.3d 427, 436 (Pa. Super.

2014). In Pennsylvania, adherence to the Strickland test requires a PCRA

petitioner to establish three prongs.      Id.     Specifically, the petitioner must

demonstrate “(1) the underlying claim has arguable merit; (2) no reasonable

basis existed for counsel’s actions or failure to act; and (3) the petitioner

suffered prejudice as a result of counsel’s error[.]” Id. With regard to the

third prong, “prejudice [is] measured by whether there is a reasonable

probability that the result of the proceeding would be different.”                   Id.

Moreover,    we   presume      counsel     has    rendered     effective     assistance.

Commonwealth v. Rivera, --- A.3d ---, 2014 WL 7404541, at *5 (Pa.

Super. 2014)-. “[I]f a claim fails under any required element of the

Strickland    test,   the   court   may    dismiss     the   claim   on    that   basis.”

Commonwealth          v.    Bomar,   104        A.3d   1179,    1188       (Pa.   2014).

“Additionally, counsel cannot be deemed ineffective for failure to raise a

meritless claim.” Rivera, supra. (citation omitted).




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       In Appellant’s first claim of ineffectiveness he argues, “[c]ounsel was

ineffective for failing to file a post[-]verdict motion that the verdict was

against the weight of the evidence.”5 Appellant’s Brief at 17. In support of

this position, Appellant argues “[t]he evidence was contradictory and

inconsistent throughout the trial.” Id. Specifically, Appellant advances that

the victim’s testimony was inconsistent with the testimony of his estranged

wife regarding where Appellant was residing when the abuse began.            Id.

Despite Appellant’s acknowledgement in his argument that the victim

testified about the criminal acts that occurred, he nonetheless concludes,

“[t]here was no evidence to support the fact that these offenses actually

took place.”6 Id. at 17-18. The PCRA court explained its determination that

this claim did not establish a right to relief as follows.


____________________________________________


5
  The arguments Appellant advances to support his claim of ineffective
assistance of counsel in his appellate brief are identical to those in his
memorandum of law in support of his amended petition. See Appellant’s
Brief at 17-27; Appellant’s Memorandum of Law in Support of Amended
Petition, 2/28/13 at 10-19. Though we examine the issues as set forth in
Appellant’s petition, because Appellant’s arguments on appeal are identical,
we will refrain from superfluous citations and cite only to Appellant’s brief.
6
  Appellant’s single assertion that there was no evidence of the offenses is
directly in conflict with his claim that the verdict is against the weight of the
evidence, as “[a] true weight of the evidence challenge concedes that
sufficient evidence exists to sustain the verdict but questions which evidence
is to be believed.” Commonwealth v. Thompson, --- A.3d ---, 2014 WL
6948150, at *10 (Pa. Super. 2014) (citation omitted).               We discern,
notwithstanding his assertion that there is no evidence of guilt, Appellant’s
challenge is truly to the weight of the evidence because he acknowledges
(Footnote Continued Next Page)


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                     In dismissing [Appellant’s] petition, th[e PCRA
              c]ourt agreed with the Commonwealth that the mere
              identification   of    a    conflict    between     the
              Commonwealth’s evidence and the defendant’s is not
              itself a basis for reversing a conviction. This is
              because the jury heard those conflicting pieces of
              testimony, and, having been properly charged on the
              law, decided to believe one witness over another.

PCRA Court Opinion, 4/25/14, at 3.               We conclude Appellant has failed to

establish that this issue is of arguable merit. See Reid, supra.

      In challenging the weight of the evidence resulting in conviction, a

defendant “seeks a new trial on the ground that the evidence was so one-

sided or so weighted in favor of acquittal that a guilty verdict shocks one’s

sense of justice.”       Commonwealth v. Lyons, 79 A.3d 1053, 1067 (Pa.

Super. 2013), cert. denied, Lyons v. Pennsylvania, 134 S.Ct. 1792

(2014).    Significantly, “[a] new trial should not be granted because of a

mere conflict in the testimony or because the judge on the same facts would

have arrived at a different conclusion.” Commonwealth v. Orie, 88 A.3d

983, 1016 (Pa. Super. 2014) (citation omitted), appeal denied, 99 A.3d 925

(Pa. 2014).

      At trial, the victim testified that Appellant performed sexual acts on

her four or five times and forced her to perform sexual acts on him. N.T.,

3/8/07, at 6-7, 19. Her mother also testified, for the Commonwealth, that

                       _______________________
(Footnote Continued)

the incriminating testimony proffered at trial yet asks this Court to discredit
it in light of the testimony of other witnesses. See Appellant’s Brief at 17.



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Appellant, with whom she was having a romantic relationship, began staying

in her home in August of 2003. Id. at 48. In September of 2003, Appellant

and the victim’s mother had a son together. Id. Appellant would care for

the victim and her siblings while her mother was at work. Id. at 50-51. In

July 2004, Appellant moved out of the house where the victim lived, but he

would continue to come to the house often because both his son and brother

lived there. Id. at 78-79. Further, Appellant’s estranged wife testified on

Appellant’s behalf that Appellant lived with her from August 9, 2003 until

October 2003. Id. at 137.     However, she also admitted that during that

time, Appellant would spend a significant amount of time outside of her

presence. Id. at 139.

     The mere conflict in testimony regarding where Appellant resided for

a short period of the relevant time-frame, does not constitute evidence that

is so one-sided or weighted in favor of acquittal as to shock one’s sense of

justice. See Orie, supra; Lyons, supra. Notably, none of the testimony

proffered by Appellant’s estranged wife rebuts the testimony of the victim or

her mother as to the commission of the offenses. See N.T., 3/8/07, at 135-

140. She merely testified that Appellant resided with her from August until

October of 2003. Id. at 137. Accordingly, the PCRA court did not abuse its

discretion in declining to hold an evidentiary hearing because the record

reflects this claim is meritless. See Miller, supra; Baumhammers, supra.




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Likewise, counsel was not ineffective for declining to raise this meritless

claim, and Appellant is not entitled to relief. See Rivera, supra.

     Appellant next asserts, “[t]rial [c]ounsel was ineffective for failing to

file a written motion for Rule 600[.]”        Appellant’s Brief at 20.   We have

summarized the time requirements pursuant to Pennsylvania Rule of

Criminal Procedure 600 as follows.

           As provided by Rule 600, the trial must commence
           by the mechanical run date, which is calculated by
           adding 365 days to the date on which the criminal
           complaint was filed. The mechanical run date can be
           adjusted by adding any “excludable” time when the
           delay was caused by the defendant under Rule
           600(C). If the trial begins before the adjusted run
           date, there is no violation and no need for further
           analysis.

Commonwealth v. Tickel, 2 A.3d 1229, 1234 (Pa. Super. 2010) (citation

omitted), appeal denied, 23 A.3d 541 (Pa. 2011).

     Appellant challenges the Commonwealth’s compliance with Rule 600

and counsel’s effectiveness in the following manner.

                 Here[,] the complaint was filed on May 25,
           2005[,] and the mechanical run date was May 25,
           2006.    After numerous continuances, Appellant’s
           adjusted run date was November 15, 2006. Trial
           was not held until March 6, 2007.

                  The Commonwealth did not act with due
           diligence, as it is required to, in ensuring that
           Appellant’s trial would commence no later than 365
           days from when the complaint was filed.

                                       …




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                    Counsel’s failure to raise       this   issue   is
              ineffective assistance of counsel.

                   Secondly, there was no “reasonable basis” for
              counsel not to raise this issue.

                    Finally, [] Appellant suffered actual prejudice
              as a result of counsel’s failure to raise this issue[].
              As a result of counsel’s failure, Appellant had to
              proceed to trial and the issue could not be argued on
              appeal.

Appellant’s Brief at 20, 22.

      The PCRA court found this claim to be “underdeveloped and meritless.”

PCRA Court Opinion, 4/25/14, at 4.

                    [Appellant] concludes, without any explanation
              of how he arrived at this conclusion, that the
              adjusted run date for this case was November 15,
              2006.     Th[e PCRA c]ourt is unable to reverse-
              engineer the process [Appellant] used to conclude
              that this was the adjusted run date.

                    In    its   [m]otion    to   [d]ismiss,   [t]he
              Commonwealth provided th[e PCRA c]ourt with
              detailed calculations of excludable and excusable
              time, based on the court record, which this [c]ourt
              accepted. The Commonwealth found 336 days of
              either excludable or excusable time, resulting in an
              adjusted run date of May 5, 2007. As [Appellant’s]
              trial began on March 6, 2007, a Rule 600(g)
              [m]otion would have been denied. The speedy trial
              issue, therefore, was not of arguable merit and could
              not be the basis of PCRA relief.

Id. at 4-5.     We agree with the PCRA court that Appellant has failed to

develop his claim.




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      Pennsylvania Rule of Criminal Procedure 902 governs the content of

petitions for post-conviction collateral relief, and provides, in part, the

following.

             Rule 902.       Content of Petition for Post-
             Conviction     Collateral Relief; Request for
             Discovery

             (A) A petition for post-conviction collateral relief shall
             bear the caption, number, and court term of the case
             or cases in which relief is requested and shall contain
             substantially the following information:

                                         …

             (11) the grounds for the relief requested;

             (12) the facts supporting each ground that:

                   (a) appear in the record, and the place in the
                   record where they appear; and

                   (b) do not appear in the record, and an
                   identification of any affidavits, documents, and
                   other evidence showing such facts;

                                         …

Pa.R.Crim.P. 902(A)(11)-(12).

      As noted, Appellant merely recounts when the criminal complaint was

filed and flatly asserts that Rule 600 required the Commonwealth to try

Appellant on or before November 15, 2006.               Appellant’s Brief at 20.

Appellant completely fails to advance any facts in support of his assertion

that the commencement of his trial violated the time requirements of Rule

600 by providing any explanation as to the nature of each continuance, i.e.,


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whether the continuances amounted to excludable or excusable time under

Rule 600. Further, Appellant fails to challenge the Commonwealth’s detailed

computation of the excludable and excusable time, pursuant to Rule 600,

included in the Commonwealth’s motion to dismiss Appellant’s amended

PCRA petition. He similarly fails to explain how the Commonwealth did not

act with due diligence in bringing him to trial. “[I]t is a well settled principle

of appellate jurisprudence that undeveloped claims are waived and

unreviewable on appeal.”      Commonwealth v. McDermitt, 66 A.3d 810,

814 (Pa. Super. 2013) (emphasis added) (citation omitted).               Because

Appellant failed to provide a sufficient factual basis in his petition pursuant

to Rule 902(A)(12) and failed to otherwise develop this claim, we conclude

Appellant has waived this issue on appeal. See McDermitt, supra.

      Finally, Appellant argues, “[a]ppellate counsel was ineffective for

failing to raise issues for appeal[.]”   Appellant’s Brief at 23.    Specifically,

Appellant contends appellate counsel was ineffective for “fail[ing] to argue

there was insufficient evidence to establish that Appellant met the statutory

definition of a ‘sexually violent predator’” and “fail[ing] to argue the denial

of a mistrial based on the prosecutor’s closing arguments[.]” Id. at 23, 26.

Appellant has not established a right to relief.

      As discussed above, an appellant seeking relief under the PCRA must

demonstrate “(1) the underlying claim has arguable merit; (2) no reasonable

basis existed for counsel’s actions or failure to act; and (3) the petitioner


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suffered prejudice as a result of counsel’s error[.]” Reid, supra. Although

Appellant baldly advances that the issues appellate counsel did not pursue

“had merit,” he does not provide any discussion as to whether there was a

reasonable basis for appellate counsel’s actions nor does he develop any

argument that he was prejudiced by appellate counsel’s actions.         See

Appellant’s Brief at 23-27.   Therefore, Appellant has failed to demonstrate

even a prima facie showing that appellate counsel was ineffective such that

the presumption of counsel’s effectiveness could be overcome. See Rivera,

supra.   As Appellant completely failed to include substantive assertions

regarding the reasonable basis and prejudice prongs with regard to appellate

counsel’s stewardship, the PCRA court was not required to hold an

evidentiary hearing on these claims nor has Appellant established a right to

relief. See Baumhammers, supra; Reid, supra.

     Based on the foregoing, we conclude the PCRA court’s decision to

dismiss Appellant’s PCRA petition without an evidentiary hearing is free of

legal error and is supported by record evidence.        See Pander, supra.

Accordingly, the November 15, 2013 order is affirmed.

     Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/10/2015




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