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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA             :     IN THE SUPERIOR COURT OF
                                         :           PENNSYLVANIA
                   v.                    :
                                         :
GEORGE R. JONES,                         :          No. 210 MDA 2014
                                         :
                        Appellant        :


                Appeal from the PCRA Order, January 8, 2014
                 in the Court of Common Pleas of York County
               Criminal Division at No. CP-67-CR-0007300-2009


BEFORE: FORD ELLIOTT, P.J.E., PANELLA AND FITZGERALD,* JJ.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:               FILED JANUARY 23, 2015

      Appellant, George R. Jones, appeals from the January 8, 2014 order

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

(“PCRA”), 42 Pa.C.S.A. §§ 9541-9546.           The PCRA court denied and

dismissed appellant’s request for collateral relief without an evidentiary

hearing. Upon review, we affirm.

      Appellant was charged with one count of aggravated assault on

June 25, 2009, in relation to the beating of Michael Barton at 33 South Penn

Street.   The following facts were presented at appellant’s jury trial.     On

June 23, 2009, police responded to a call that Barton had been struck in the

head and was bleeding. Upon arrival, the officer observed Barton seated in

a lawn chair bleeding profusely from his head.      A black duffle bag on the

ground    near   the    victim   contained   appellant’s   Pennsylvania   State


* Former Justice specially assigned to the Superior Court.
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Identification Card and a paystub bearing his name; appellant was not

present. John Collington was at the house on the night in question, but was

in the bathroom at the time the victim was struck. Collington stated he had

seen appellant before going to the bathroom and testified appellant left after

having words with his girlfriend.

          The victim testified that when he arrived at 33 South Penn Street, he

saw people drinking beers and socializing on the porch. Appellant pulled up

in a van, came over, and started talking to everyone. A woman jumped out

of the van and began chasing appellant. She then drove off in the van and

returned with a butcher knife and a pipe which she threw down on the

ground and left again. The victim stated that appellant asked if he could use

someone’s cellphone, and proceeded to take the phone out of the victim’s

hand without permission.        The victim took his phone back and decided to

leave.      As he looked for his keys, the victim stated that he saw appellant

behind him with the pipe, and that appellant struck him in the side of his

face and knocked him out.1 The victim suffered multiple facial fractures and

has been unable to work due to a decrease in memory, balance, and motor

skills.

          Following a jury trial, appellant was found guilty of aggravated assault,

18 Pa.C.S.A. § 2702(a)(1). On February 9, 2011, appellant was sentenced


1
  Appellant was able to establish, through the testimony of the victim and
the officer, that the victim had never before indicated that he saw appellant
with the pipe prior to being struck.


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to a term of 6 to 12 years’ incarceration. No post-sentence motions were

filed. Following the filing of a timely notice of appeal, a panel of this court

affirmed judgment of sentence on January 18, 2012.            Appellant filed a

pro se PCRA petition on August 27, 2012. Counsel was appointed and an

amended petition was filed on February 15, 2013.        On June 7, 2013, the

PCRA court issued its notice of intent to dismiss the petition without a

hearing.    Appellant filed a response on June 26, 2013. Subsequently, the

PCRA court dismissed the petition on January 8, 2014. This timely appeal

followed.   Appellant complied with the trial court’s order to file a concise

statement of errors complained of on appeal within 21 days pursuant to

Pa.R.A.P., Rule 1925(b), 42 Pa.C.S.A., and the trial court has filed an

opinion.

      Two claims are presented in appellant’s brief.           First, appellant

contends that the PCRA court erred in dismissing, without conducting an

evidentiary hearing, his claim that prior counsel was ineffective for failing to

preserve a challenge to the weight of the evidence.         Second, appellant

claims that the trial court erred when it dismissed his PCRA petition without

a hearing concerning his claim that trial counsel failed to investigate the

case and call certain witnesses; appellant alleges that he submitted

certifications regarding each potential witness he intended to call.

             This Court’s standard of review regarding an order
             denying a petition under the PCRA is whether the
             determination of the PCRA court is supported by the
             evidence of record and is free of legal error.


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          Commonwealth v. Halley, 582 Pa. 164, 870 A.2d
          795, 799 n. 2 (2005). The PCRA court’s findings will
          not be disturbed unless there is no support for the
          findings in the certified record. Commonwealth v.
          Carr, 768 A.2d 1164, 1166 (Pa.Super.2001).

Commonwealth v. Turetsky, 925 A.2d 876, 879 (Pa.Super. 2007),

appeal denied, 940 A.2d 365 (Pa. 2007).

          [T]he right to an evidentiary hearing on a
          post-conviction     petition   is    not    absolute.
          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. 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.
          Commonwealth v. Hardcastle, 549 Pa. 450, 454,
          701 A.2d 541, 542-543 (1997).

Id. at 882, quoting Commonwealth v. Khalifah, 852 A.2d 1238,

1239-1240 (Pa.Super. 2004).

          To    prevail  on     a    claim   alleging  counsel’s
          ineffectiveness under the PCRA, Appellant must
          demonstrate (1) that the underlying claim is of
          arguable merit; (2) that counsel’s course of conduct
          was without a reasonable basis designed to
          effectuate his client’s interest; and (3) that he was
          prejudiced by counsel’s ineffectiveness, i.e. there is
          a reasonable probability that but for the act or
          omission in question the outcome of the proceeding
          would have been different.        Commonwealth v.
          Kimball, 555 Pa. 299, 724 A.2d 326, 333 (1999);
          Commonwealth v. Douglas, 537 Pa. 588, 645
          A.2d 226, 230 (1994).


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Commonwealth v. Bracey, 795 A.2d 935, 942 (Pa. 2001).

      We begin with appellant’s first issue; again, whether trial counsel was

ineffective for failing to file post-sentence motions challenging the verdict as

being against the weight of the evidence.      Appellant essentially contends

that the testimony given by the victim is not credible. We note our standard

of review for weight of the evidence claims:

            Appellate review of a weight claim is a review of the
            exercise of discretion, not of the underlying question
            of whether the verdict is against the weight of the
            evidence. Because the trial judge has had the
            opportunity to hear and see the evidence presented,
            an appellate court will give the gravest consideration
            to the findings and reasons advanced by the trial
            judge when reviewing a trial court’s determination
            that the verdict is against the weight of the
            evidence. One of the least assailable reasons for
            granting or denying a new trial is the lower court’s
            conviction that the verdict was or was not against
            the weight of the evidence and that a new trial
            should be granted in the interest of justice.

            This does not mean that the exercise of discretion by
            the trial court in granting or denying a motion for a
            new trial based on a challenge to the weight of the
            evidence is unfettered. In describing the limits of a
            trial court’s discretion, we have explained[,] [t]he
            term ‘discretion’ imports the exercise of judgment,
            wisdom and skill so as to reach a dispassionate
            conclusion within the framework of the law, and is
            not exercised for the purpose of giving effect to the
            will of the judge. Discretion must be exercised on
            the foundation of reason, as opposed to prejudice,
            personal motivations, caprice or arbitrary actions.
            Discretion is abused where the course pursued
            represents not merely an error of judgment, but
            where the judgment is manifestly unreasonable or
            where the law is not applied or where the record


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              shows that the action is a result of partiality,
              prejudice, bias or ill-will.

Commonwealth v. Clay, 64 A.3d 1049, 1055 (Pa. 2013) (emphasis

omitted) (citations omitted).

      The PCRA court found appellant failed to satisfy the requirement for

establishing ineffectiveness as it concluded the weight claim was meritless.

The crucial evidence against appellant came in the form of testimony from

the victim. The jury heard that the victim had not previously reported to the

police seeing appellant with the pipe in his hand or testified to such at the

preliminary hearing. While the victim might not have previously stated that

he had seen appellant with the pipe, he never wavered in his identification of

appellant as the attacker.      The jury chose to credit the testimony of the

victim whose testimony supports the decision to find appellant guilty of

aggravated assault. A mere conflict in testimony does not justify the grant

of a new trial on a weight of the evidence claim.        Commonwealth v.

Fisher, 47 A.3d 155, 158 (Pa.Super. 2012).

      In its order denying the PCRA petition, the court conducted a weight of

the evidence review and found appellant’s convictions did not shock the

judicial conscience given the evidence. (Docket #39.) We find no abuse of

discretion.    Since there was no merit to appellant’s claim of ineffective

assistance, the PCRA court did not err when it denied appellant’s petition

without a hearing.       See Commonwealth v. Jones, 942 A.2d 903

(Pa.Super. 2008), appeal denied, 956 A.2d 433 (Pa. 2008) (post-


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conviction court did not err by failing to hold an evidentiary hearing with

regard to defendant’s claims of ineffective assistance of counsel as such a

claim must meet all three prongs of the test for ineffectiveness, and the

court determined, without a hearing, that one of the prongs could not be

met; thus, there was no purpose for a hearing). As counsel cannot be held

ineffective for failing to raise a meritless claim, we conclude that appellant

has failed to establish a claim of ineffectiveness on this basis.

      Next, appellant argues that the PCRA court erred when the court

dismissed appellant’s petition without a hearing on the claim that trial

counsel was ineffective for failing to call four specific witnesses. (Appellant’s

brief at 8.) “[W]here a[n appellant] claims that counsel was ineffective for

failing to call a particular witness, we require proof of that witness’s

availability to testify, as well as an adequate assertion that the substance of

the   purported   testimony    would    made    a   difference      in   the   case.”

Commonwealth v. Clark, 961 A.2d 80, 90 (Pa. 2008) (emphasis added).

With respect to such claims, our court has explained that the appellant must

show:

            (1) the witness existed; (2) the witness was
            available to testify for the defense; (3) counsel knew
            of, or should have known of, the existence of the
            witness; (4) the witness was willing to testify for the
            defense; and (5) the absence of the testimony of the
            witness was so prejudicial as to have denied the
            defendant a fair trial.




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Commonwealth v. Washington, 927 A.2d 586, 599 (Pa. 2007).                 Thus,

trial counsel will not be found ineffective for failing to investigate or call a

witness unless there is some showing by appellant that the witness’s

testimony would have been helpful to the defense.         Commonwealth v.

Auker, 681 A.2d 1305, 1319 (Pa. 1996).

      Instantly, the amended PCRA petition merely provides a bald assertion

that the witnesses could have been called. The initial pro se PCRA petition

merely lists the witnesses’ names, addresses, dates of birth, and conclusory

statements such as “rebuttal -- conclusive evidence of innocence -- direct

evidence.” (Docket #35.) Consequently, we agree with the PCRA court that

appellant fails to prove that, at the time of trial, these witnesses were

available and willing to testify or detail the testimony that would have been

helpful to his defense.   As appellant cannot demonstrate how any of the

proposed witnesses’ testimony would have assisted him, or that those

witnesses would have testified on his behalf, counsel cannot be ineffective

for failing to interview them.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 1/23/2015



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