J-S47023-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                         Appellee

                    v.

CHARLES EDWIN HOLLEY

                         Appellant                 No. 1254 MDA 2015


                  Appeal from the PCRA Order May 13, 2015
                In the Court of Common Pleas of Perry County
             Criminal Division at No(s): CP-50-CR-0000336-2009
                                         CP-50-CR-0000447-2009


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

MEMORANDUM BY JENKINS, J.:                        FILED AUGUST 31, 2016

     Appellant Charles Edwin Holley appeals from the May 13, 2015 order

entered in the Perry County Court of Common Pleas dismissing his petition

filed pursuant to the Post Conviction Relief Act, 42 Pa.C.S. §§ 9541-9546.

We affirm.

     On February 2, 2010, a jury convicted Appellant of three counts of

recklessly endangering another person (“REAP”), three counts of simple

assault, two counts of aggravated assault, and one count each of criminal

attempt, criminal conspiracy, terroristic threats, possession of firearm with

altered manufacturer’s number, persons not to use or possess firearms, and
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receiving stolen property.1 On March 4, 2010, the court sentenced Appellant

to an aggregate term of 13 to 32 years’ incarceration.                 Appellant filed a

post-sentence motion, which was denied by operation of law on September

8, 2010. Appellant filed a timely notice of appeal and this Court affirmed his

judgment of sentence on August 2, 2011.                Appellant filed a petition for

allowance of appeal with the Supreme Court of Pennsylvania, which was

denied on February 9, 2012.

        Appellant filed a pro se PCRA petition, which was dated August 7, 2012

and filed August 9, 2012. On February 15, 2013, appointed counsel filed an

amended petition.        The PCRA court conducted an evidentiary hearing on

October 17, 2013.

        On October 31, 2013, counsel filed a motion to withdraw as counsel.

On November 18, 2013, the PCRA court issued a notice of its intent to grant

counsel’s petition to withdraw and to dismiss Appellant’s PCRA petition, and

advised Appellant he could file a response within 20 days. On December 2,

2013,     Appellant     filed   a   petition    for   extension   of     time   to   file

response/objections.       Appellant filed two responses, on April 3, 2014 and

August 1, 2014, both beyond the 20-day time period. On October 10, 2014,

Appellant filed a notice of appeal.            On November 25, 2014, this Court

quashed the appeal because the trial court had not issued a final order.

____________________________________________


1
  18 Pa.C.S.A. §§ 2705, 2701(a), 2702, 901, 903, 2706(a)(1), 6110.2,
6105, and 3925, respectively.



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       On May 13, 2015, the PCRA court denied the PCRA petition and

granted counsel’s motion to withdraw.            On June 8, 2015 Appellant filed a

timely notice of appeal.       Both Appellant and the trial court complied with

Pennsylvania Rule of Appellate Procedure 1925.

       Appellant raises the following issues on appeal:

          I. Whether trial counsel erred for failing to use the
          evidence contained in the prosecution’s case file to
          impeach the testimony of Commonwealth witness Chris
          Mutzabaugh?

          II. Whether trial counsel erred for not admitting into
          evidence Dominick Sims’ statement at trial and for failing
          to interview this witness?

          III. Whether trial counsel erred by not objecting to the
          prosecutor’s fabrication and/or misstatement of evidence
          to the jury during his closing summation?

          IV. Whether PCRA counsel was ineffective for his failure to
          adequately     represent   Appellant     during   his   PCRA
          proceedings by failing to raise all claims Appellant[] wished
          to have raised without providing Appellant with a proper
          analysis prior to withdrawing?

          V. Whether the PCRA court erred in allowing PCRA counsel
          to withdraw without complying with the mandates of
          Turner/Finley[2]?

Appellant’s Brief at 2.

       Our standard of review from the denial of post-conviction relief “is

limited to examining whether the PCRA court’s determination is supported by

the   evidence     of   record     and    whether   it   is   free   of   legal   error.”
____________________________________________


2
 Commonwealth v. Turner, 544 A.2d 927 (Pa.1988); Commonwealth v.
Finley, 550 A.2d 213 (Pa.Super.1988) (en banc).



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Commonwealth v. Ousley, 21 A.3d 1238, 1242 (Pa.Super.2011) (citing

Commonwealth v. Morales, 701 A.2d 516, 520 (Pa.1997)).

      For ineffective assistance of counsel claims, the petitioner must

establish: “(1) his underlying claim is of arguable merit; (2) counsel had no

reasonable basis for his action or inaction; and (3) the petitioner suffered

actual   prejudice   as   a   result.”    Spotz,   84    A.3d   at   311   (quoting

Commonwealth v. Ali, 10 A.3d 282, 291 (Pa.2010)).                    “[C]ounsel is

presumed to be effective and the burden of demonstrating ineffectiveness

rests on appellant.” Ousley, 21 A.3d at 1244 (quoting Commonwealth v.

Rivera, 10 A.3d 1276, 1279 (Pa.Super.2010)).            “The failure to prove any

one of the three [ineffectiveness] prongs results in the failure of petitioner’s

claim.” Id. (quoting Rivera, 10 A.3d at 1279).

      Appellant first alleges trial counsel was ineffective for failing to use the

evidence contained in the prosecution’s case file to impeach the testimony of

Commonwealth witness Chris Mutzabaugh.              Specifically, he maintains

Mutzabaugh had a criminal record and had open charges when he testified

against Appellant. Appellant’s Brief at 10. He alleges trial counsel should

have used this information to impeach Mutzabaugh. Id.

      At the PCRA hearing, Appellant’s trial counsel testified that he did not

want to impeach Mutzabaugh. N.T., 10/17/2013, at 88-90. Rather, counsel

wanted the jury to believe Mutzabaugh, who had testified that he was not

sure whether Appellant attempted to pull the trigger.                 Id. Further,

Mutzabaugh testified at the PCRA hearing that he testified truthfully at

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Appellant’s trial. Id. at 80.3 Although Mutzabaugh had previously signed an

affidavit stating he had received threats of a harsh prosecution if he failed to

testify against Appellant, at the PCRA hearing he stated that he signed this

affidavit in exchange for drugs. Id. at 76-77.

        The   trial   court   found    Appellant’s   claim   lacked   merit.   Final

Memorandum, 3/8/2016, at 3 (“1925(a) Opinion”).4 It found there was no

need to impeach Mutzabaugh because he testified truthfully at trial.            Id.

The PCRA court concluded that Appellant failed to establish prejudice,

because it was unlikely the attempted impeachment would have resulted in

a different outcome. Id. This determination was supported by the record

and free from error.5

        Appellant next contends trial counsel was ineffective for failing to

admit as evidence at trial a statement from Dominick Sims during a police

interview and for failing to interview Sims.           Appellant’s Brief at 12-14.




____________________________________________


3
  Mutzabaugh also stated that although there were pending charges and he
feared he would be sentenced to the maximum, he had no discussions with
the Commonwealth regarding the sentence and the Commonwealth did not
threaten Mutzabugh. N.T., 10/17/2013, at 70-71.
4
    Pagination for the 1925(a) opinion has been supplied by this Court.
5
  Further, counsel had a reasonable basis for not impeaching Mutzabaugh, as
his argument at trial and on appeal was that there was no evidence
Appellant attempted to pull the trigger, and Mutzabaugh’s testimony
supported this argument.



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Appellant claims the statement contradicted the testimony provided by

Mutzabaugh. Id. at 13.

      In his statement to police, Sims stated:

         Charles Hollie knocked on the door and was welcomed
         inside the home[. U]pon entering, he greeted myself,
         Jennifer and Chris. He then walked over to Chris and
         pulled out what appeared to be a small handgun. He
         stated to Chris[: “]Oh just so you know, I can kill you or
         anybody at anytime.[”] Chris then said, [“]Chuck, that
         isn’t funny man, give me the gun,” and Chuck handed him
         the gun.

PCRA Petition, at Exhibit 1, Statement of Dominick Joseph Sims to Police

dated May 30, 2009. Appellant offered affidavits from his mother and friend

stating they informed counsel that Sims was available and willing to testify

at trial. PCRA Petition, at Exhibit 5-B

      A PCRA petitioner cannot prevail on a claim of trial counsel’s

ineffectiveness for failure to call a witness unless the petitioner shows that:

“(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.” Commonwealth v. Washington, 927 A.2d 586,

599 (Pa.2007).     To satisfy the prejudice prong of this analysis, a PCRA

petitioner “must show how the uncalled witnesses’ testimony would have

been beneficial under the circumstances of the case.” Commonwealth v.

Gibson, 951 A.2d 1110, 1134 (Pa.2008) (citations omitted).

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       The PCRA court found that counsel had a reasonable strategy for not

calling Sims because, as discussed above, he did not want to impeach the

testimony of Mutzabaugh. 1925(a) Opinion at 4. Further, the court noted

that Sims is deceased and, therefore, Appellant cannot establish Sims would

have testified on his behalf.6 Id.

       The PCRA court’s conclusion that this ineffective assistance of counsel

claim lacks merit is supported by the record and free of legal error.7

       Appellant next claims his trial counsel was ineffective for failing to

object   to   the   assistant    district      attorney’s   alleged   fabrication   and/or

misstatement of evidence to the jury during his closing summation.

Appellant’s Brief at 24. Appellant claims that during closing arguments the

assistant district attorney discussed a statement Appellant made to police

and misstated its contents. Id.

       At trial, Trooper Barry Calhoun testified to the following:

          Yes, Charles said that he did enter – he did not knock and
          was invited inside. And at that point he met with his
          girlfriend, Jen Myers. They had some words and then
          Charles said that he did approach Chris with the handgun
          and pointed it at him. He did say that he did it under
          advisement of his brother.
____________________________________________


6
  The testimony at trial established that Sims was in Florida at the time of
the trial. N.T., 2/2/2010, at 114-15.
7
  Appellant also claims trial counsel was ineffective for failing to investigate
Sims. However, the interview statement, in which Sims states Appellant
pointed a gun at Mutzabaugh and stated he “could kill anybody at anytime”
suggests Sims’ testimony would not have been helpful to Appellant.



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N.T., 2/2/2010, at 111.

     During his closing argument, the assistant district attorney stated:

          And when they arrested this guy, he told them he did it.
          He said I took a gun there, I pointed it at Chris, I was
          drinking that night, and Luke told me to do it, kill myself
          while I was at it.

N.T., 2/2/2010, 157. Appellant maintains counsel should have objected to

this argument.

     This Court applies the following standard to prosecutorial misconduct

claims:

          In reviewing prosecutorial remarks to determine their
          prejudicial quality, comments cannot be viewed in isolation
          but, rather, must be considered in the context in which
          they were made.

          Generally, comments by the district attorney do not
          constitute reversible error unless the unavoidable effect of
          such comments would be to prejudice the jury, forming in
          their minds fixed bias and hostility toward the defendant
          so that they could not weigh the evidence objectively and
          render a true verdict.

Commonwealth v. Sampson,             900   A.2d   887,   890   (Pa.Super.2006)

(quoting Commonwealth v. Correa, 664 A.2d 607, 609 (Pa.Super.1995)).

     The PCRA court found the issue lacked merit because the statement

during closing argument did not misstate or fabricate the evidence. Rather,

Appellant only established he disagreed with the inference made from the

statements. 1925(a) Opinion, at 5. The PCRA court further noted that the

assistant district attorney’s statement was based on a trooper’s testimony,

who stated Appellate related to him that “he did approach Chris with the


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handgun and pointed it at him.” Id. The PCRA court’s determination that

the prosecutorial claim lacked merit was supported by the record and free of

legal error. Accordingly, because the prosecutorial misconduct claim lacked

merit, Appellant’s ineffective assistance of counsel claim also lacks merit.

See, e.g., Spotz, 84 A.3d at 311 (to establish ineffective assistance of

counsel, petitioner must prove underlying claim had merit).

       Appellant’s fourth claim maintains PCRA counsel was ineffective for

failing to raise all claims Appellant wished to have raised without providing

Appellant with a proper analysis prior to withdrawing.8 Appellant maintains

counsel failed to follow the dictates of Turner/Finley because he failed to

raise meritorious claims. Appellant’s Brief at 27. He claims counsel failed to

include meritorious claims, including that trial counsel failed to impeach

Mutzabaugh, failed to use Sims’ statement, and failed to object to the

prosecutor’s closing argument. However, as discussed above, these issues

are   meritless.       The    PCRA     court     found   Appellant’s   PCRA   counsel

ineffectiveness claim meritless, noting counsel cannot raise a claim he




____________________________________________


8
  Appellant’s submissions in response to the PCRA court’s notice of intent to
dismiss the petition challenge PCRA counsel’s ineffectiveness. Although the
responses were not timely filed, Appellant requested an extension and the
PCRA court reviewed the PCRA counsel ineffectiveness claims.




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believes lacks merit. 1925(a) Opinion at 6-7. This conclusion is supported

by the record and free from legal error.9

       Appellant’s final claim maintains the PCRA court erred when it

permitted PCRA counsel to withdraw without ensuring the requirements of

Turner/Finley were met.10            Appellant’s Brief at 29.   As with his PCRA

counsel ineffectiveness claim, Appellant maintains counsel failed to address

meritorious arguments.         However, as discussed above, Appellant’s issues

lack merit. Further, our independent review of the record has revealed no

____________________________________________


9
   Counsel’s motion to withdraw included these claims, but argued they were
meritless. See Motion to Withdraw Under the Post Conviction Relief Act,
filed Oct. 31, 2013.
10
   Competent PCRA counsel must conduct an independent review of the
record before a trial court can authorize counsel’s withdrawal.
Commonwealth v. Freeland, 106 A.3d 768, 774 (Pa.Super.2014). The
independent review

          requires counsel to file a ‘no-merit’ letter detailing the
          nature and extent of his review and list[ing] each issue the
          petitioner wishes to have examined, explaining why those
          issues are meritless. The PCRA court, or an appellate court
          if the no-merit letter is filed before it, then must conduct
          its own independent evaluation of the record and agree
          with counsel that the petition is without merit.

Id. (internal citation omitted). PCRA counsel must also serve a copy of
counsel’s petition to withdraw as counsel and the ‘no-merit’ brief on
petitioner and write a letter advising the petitioner that he or she has the
right to proceed pro se or with the assistance of privately retained counsel.
Commonwealth v. Widgins, 29 A.3d 816, 818 (Pa.Super.2011) (quoting
Commonwealth v. Friend, 896 A.2d 607 (Pa.Super.2006), abrogated in
part by Commonwealth v. Pitts, 981 A.2d 875, 876 (Pa.2009)).




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meritorious claims that Appellant could have raised, and we agree with the

PCRA court and PCRA counsel that the petition lacked merit.11

       Accordingly, Appellant’s claims of counsel ineffectiveness and PCRA

court error lack merit.

       Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/31/2016




____________________________________________


11
   Although the record does not contain a letter from counsel to Appellant
enclosing the Turner/Finley letter, it does contain a letter from Appellant
noting he did not oppose counsel’s motion to withdraw and two responses
from Appellant to the PCRA court’s notice of intent to dismiss.



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