J-S49036-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                      v.

PETER BAYNES

                           Appellant                  No. 1908 WDA 2016


                Appeal from the PCRA Order November 22, 2016
               In the Court of Common Pleas of Allegheny County
              Criminal Division at No(s): CP-02-CR-0006305-2011

BEFORE: DUBOW, SOLANO, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                       FILED AUGUST 14, 2017

        Appellant, Peter Baynes, appeals from the order entered in the

Allegheny County Court of Common Pleas denying his first petition filed

pursuant to the Post Conviction Relief Act1 (“PCRA”).          Appellant contends

trial counsel was ineffective for failing to call a defense witness at trial. We

affirm.

        This Court previously summarized the relevant facts and procedural

history of this case as follows:

                  Anna    Gomez    and   [Appellant]  dated     for
              approximately four years and resided together in the
              first floor apartment at 317 Natchez Street in the
              Mount Washington area of the City of Pittsburgh,
              Allegheny County. In the late evening hours of
              Friday, April 22, 2011, [Appellant] approached

*
    Former Justice specially assigned to the Superior Court.
1
    42 Pa.C.S §§ 9541-9546.
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          Gomez and accused her of having affairs with their
          landlord, his best friend, and several other men.
          When Gomez denied these allegations [Appellant]
          grabbed her, threw her onto the bed, and ripped off
          her clothes. [Appellant] climbed on top of her as he
          said, “We’re going to get to the bottom of this.”
          [Appellant] restrained Gomez by kneeling on her
          shoulders, and punched her repeatedly in the face.
          Gomez pleaded for [Appellant] to stop.

              [Appellant] ran into another room to retrieve an
          aluminum baseball bat (“bat”). Upon returning he
          stood over her on the bed, holding the bat extended
          above his head with both arms. [Appellant] said,
          “Now you are going to tell me the truth. Don’t
          move. We are going to get to the bottom of this.”
          When he started to ask her questions about the
          alleged affairs, she was able to get to the foot of the
          bed and attempted to call 911. [Appellant] hit her
          twice in the head with the bat: once on top of her
          head and once across her face. This knocked her
          onto the floor and caused blood to run from her
          head.

             With Gomez lying on the ground on her back,
          [Appellant] stood over her with the bat and
          demanded that she tell him the truth. Gomez rolled
          over in an attempt to stand up and run away.
          [Appellant] stopped her by hitting her with the bat
          on her back, arms, elbow, and legs. Gomez tried to
          stand up and lost consciousness.      When Gomez
          awoke she was on the bed and [Appellant] told her
          to wash herself. She stood up and tried to walk, but
          lost consciousness again. [Appellant] threw a glass
          of cold liquid on her face to wake her up and said,
          “Go ahead and get washed off, I am tired of you
          playing.”

             She made her way to the bathroom, losing
          consciousness along the way.         At some point
          [Appellant] picked her up and “tossed” her into the
          bathtub. The shower was running and [Appellant]
          told her to clean herself. Gomez rinsed the blood off
          her face as [Appellant] said, “Look what you made


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          me do to you. Why don’t you just listen to me?”
          Gomez stood up and lost consciousness again.

             When she next awoke, [Appellant] was holding
          her by the neck against the bathroom window. He
          dropped her onto the floor and tried to kick her in
          the face to make her stand up. She blocked his foot
          with her hand and again lost consciousness. She
          next awoke in bed with a towel wrapped around her
          head. The apartment was quiet, it was dark outside,
          and her cat was lying on her.

             She awoke Sunday morning to [Appellant]
          punching her and yelling at her. Desperate for the
          attacks to stop, Gomez said, “Yes, I have had affairs
          with everybody.” [Appellant] stopped hitting her and
          instead asked details about the affairs. Gomez made
          up stories to pacify [Appellant].        Later that day
          [Appellant] pushed Gomez against the bedroom
          window, which overlooked the front porch.             She
          broke off all of the blinds as she fell to the floor, and
          at his direction she crawled towards the bed.

             City of Pittsburgh police officers Troy Signorella,
          Ryan Young, and Dale Ruble were dispatched to 317
          Natchez Street late that Sunday afternoon on a
          domestic violence call. The officers knocked on the
          front and back door with no response. Officer Young
          remained at the back door while [O]fficer Signorella
          proceeded to the front porch, where he was able to
          look in the window.

              When [Appellant] saw [O]fficer Signorella looking
          in the bedroom window he told Gomez, “I told you
          that if the police ever got here I was going to kill
          you.” [Appellant] ran between the bedroom and the
          living room looking for the bat. Gomez remained on
          the floor between the bed and the window, covered
          in a sheet. She had blood on her face and arms,
          there was blood on the wall, bed, and floor around
          her. Officer Signorella radioed for a medic, signaled
          to the officers Gomez’s condition and location, and
          told [Appellant] to let them in.



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             [Appellant] complied and opened the rear door for
          [O]fficer Young. The apartment was ransacked and
          bloody, with the heaviest concentration of blood in
          the bedroom. Officer Young proceeded directly to
          the bedroom to check on Gomez. Officer Signorella
          remained next to [Appellant], who repeatedly yelled
          at Gomez, “Tell me who did this to you.”

             Officer Young updated the en route medics that
          Gomez had several head injuries, extreme swelling
          and bruising on her body, and difficulty breathing.
          Gomez told [O]fficer Young that [Appellant] attacked
          her. Officer Young indicated to [O]fficer Signorella
          to arrest [Appellant], and [O]fficer Signorella
          handcuffed [Appellant] to take him outside.

              Officer Ruble noticed dried blood spots on
          [Appellant’s] shirt and a swollen right hand, and
          transported him to a different hospital than Gomez.
          [Appellant] gratuitously remarked en route that his
          hand was swollen from punching walls. [Appellant]
          was released from the hospital that day and
          transported to the Allegheny County Jail and charged
          as noted hereinabove. En route he repeatedly told
          [O]fficer Ruble that Gomez had been “seeing his best
          friend.”

             Medics transported Gomez to the hospital. She
          had not eaten nor changed clothes since Friday
          evening.     Gomez had a pre-existing condition
          (Parkinson’s   disease)   which    complicated    her
          treatment and condition.        Due to previously
          implanted deep brain stimulators that interrupted
          EKG testing, the hospital was unable to ascertain
          what brain damage Gomez may have suffered as a
          result of this attack.     Gomez suffered multiple
          ecchymosis throughout her body, two fractured
          vertebrae, three fractured ribs, a pneumothorax,
          facial bone contusions, acute renal failure, and four
          forehead lacerations. She was treated with fluid
          resuscitation and her lacerations were stapled. The
          hospital released Gomez five days later on April 29,
          2011, but she was readmitted on May 4, 2011, for
          an infection in her right forehead wound, a right


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           ankle abscess, right kneecap fracture, and post
           traumatic stress disorder. The infection and abscess
           were surgically treated. Gomez was released to an
           assisted living home on May 12, 2011, where she
           spent one month. At the time of trial Gomez had
           scars and lumps on her forehead, nerve damage in
           her eyes and face, required the use of a cane or
           walker to ambulate, and it was apparent that the
           injuries she endured were severe and enduring.

        Trial court opinion, 4/4/13 at 4-8 (citations omitted).

            Appellant testified at trial and claimed that he did not
        commit the assaults against the victim. He averred that
        the beating occurred during a two-hour period of time
        when he left the apartment to give the victim time to
        decide whether she wanted to stay with [A]ppellant or
        leave to have an affair with his best friend. Appellant
        testified that he sat on Grandview Avenue in Mt.
        Washington for about two hours looking at the City of
        Pittsburgh and when he returned home, he found the
        house ransacked and bloody, and the victim terribly
        beaten. He testified that the victim said that “they” beat
        her and stole some money. Appellant insisted that the
        victim would not identify her attackers as they were a
        “motorcycle gang.” He also claimed that the victim would
        not let him call an ambulance.

           Following a jury trial before the Honorable Edward J.
        Borkowski, [A]ppellant was found guilty of [aggravated
        assault―serious bodily injury, terroristic threats, unlawful
        restraint, and false imprisonment]. On July 12, 2012,
        Judge Borkowski sentenced [A]ppellant to an aggregate
        term of 13 to 26 years’ imprisonment. A timely notice of
        appeal was filed on December 27, 2012.

Commonwealth v. Baynes, 2023 WDA 2012 at 1-5 (Pa. Super. filed Mar.

11, 2014) (unpublished memorandum).         This Court affirmed Appellant’s

judgment of sentence, and our Supreme Court denied allowance of appeal.

See Commonwealth v. Baynes, 179 WAL 2014 (Pa. filed Oct. 2, 2014).



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      On January 7, 2015, Appellant timely filed a pro se PCRA petition. The

PCRA court appointed counsel who subsequently filed an amended petition,

claiming that trial counsel was ineffective for failing to investigate or call

Robert Spencer as a defense witness at trial. The Commonwealth filed an

answer in response.       Thereafter, Appellant filed a motion to appoint an

investigator to locate, interview, and serve a subpoena on Spencer.        The

PCRA court denied the motion and issued notice of its intent to dismiss

Appellant’s petition without a hearing pursuant to Pa.R.Crim.P. 907.        On

November 22, 2016, the PCRA court denied Appellant’s petition. Appellant

timely appealed.

      Appellant raises the following issue for our review:

         Whether the trial court erred in denying Appellant’s [PCRA]
         Petition without a hearing because trial counsel provided
         ineffective assistance of counsel for failing to investigate or
         call Robert Spencer as a defense witness at trial.

Appellant’s Brief at 4.

      Appellant argues trial counsel was ineffective for failing to investigate

or call defense witness Spencer at trial. Appellant claims trial counsel knew

of Spencer’s identity, that he was on the list of potential witnesses, that he

was subpoenaed for trial, and that he was present in the courtroom at the

beginning of Appellant’s trial.    Appellant states the victim, Ms. Gomez,

testified that Spencer was at the apartment on the Saturday of the incident

and threatened her. Appellant contends trial counsel knew Spencer would

testify on Appellant’s behalf and would have been able to refute that


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Spencer was ever at the apartment threatening the victim.                Appellant

asserts trial counsel had no reasonable basis for her inaction, and the

absence of Spencer’s testimony prejudiced Appellant and denied him a fair

trial.    Appellant maintains his PCRA petition presented a material issue

regarding trial counsel’s ineffectiveness and, therefore, the PCRA court

should have held an evidentiary hearing. Appellant concludes his judgment

of sentence should be vacated and the case should be remanded for a new

trial, or, alternatively, the case should be remanded for an evidentiary

hearing. No relief is due.

         Our standard of review of the denial of a PCRA petition is limited to

examining      whether   the   evidence    of   record    supports    the      court’s

determination      and   whether   its    decision   is   free   of   legal     error.

Commonwealth v. Conway, 14 A.3d 101, 108 (Pa. Super. 2011).                      This

Court grants great deference to the findings of the PCRA court if the record

contains any support for those findings.        Commonwealth v. Boyd, 923

A.2d 513, 515 (Pa. Super. 2007). We give no such deference, however, to

the court’s legal conclusions. Commonwealth v. Ford, 44 A.3d 1190, 1194

(Pa. Super. 2012).

         Nevertheless, “a PCRA petitioner is not automatically entitled to an

evidentiary hearing.     We review the PCRA court’s decision dismissing a

petition without a hearing for an abuse of discretion.” Commonwealth v.

Miller, 102 A.3d 988, 992 (Pa. Super. 2014) (citation omitted).               Further,



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when the PCRA court denies relief without an evidentiary hearing, this Court

must examine each of the issues raised in light of the record to determine

whether the PCRA court erred in concluding there were no genuine issues of

material fact. Id. (citation omitted).

         [C]ounsel is presumed to have provided effective
         representation unless the PCRA petitioner pleads and
         proves that: (1) the underlying claim is of arguable merit;
         (2) counsel had no reasonable basis for his or her conduct;
         and (3) [a]ppellant was prejudiced by counsel’s action or
         omission. To demonstrate prejudice, an appellant must
         prove that a reasonable probability of acquittal existed but
         for the action or omission of trial counsel. A claim of
         ineffective assistance of counsel will fail if the petitioner
         does not meet any of the three prongs. Further, a PCRA
         petitioner must exhibit a concerted effort to develop his
         ineffectiveness claim and may not rely on boilerplate
         allegations of ineffectiveness.

Commonwealth v. Perry, 959 A.2d 932, 936 (Pa. Super. 2008) (quotation

marks and citations omitted). Furthermore,

         In order to prevail on a claim of ineffectiveness for failing
         to call a witness, a defendant must prove, in addition to
         meeting the three [ineffectiveness] requirements, that: (1)
         the witness existed; (2) the witness was available to
         testify for the defense; (3) counsel knew 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 witness’s testimony was so prejudicial as to have
         denied him a fair trial.

Commonwealth v. Walls, 993 A.2d 289, 302 (Pa. Super. 2010) (citation

omitted).

      Additionally,

         Where a petitioner requests an evidentiary hearing, the
         petition shall include a signed certification as to each


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        intended witness stating the witness’s name, address, date
        of birth and substance of testimony and shall include any
        documents material to that witness’s testimony. Failure to
        substantially comply with the requirements of this
        paragraph shall render the proposed witness’s testimony
        inadmissible.

42 Pa.C.S. § 9545(d)(1).

     Instantly, neither Appellant’s pro se nor counseled petitions included a

signed, witness certification for Robert Spencer to comply with the

requirements of 42 Pa.C.S. § 9545(d)(1).2        Thus, Appellant failed to plead

that Spencer was willing to testify for the defense or the substance of his

testimony.    See 42 Pa.C.S. § 9545(d)(1); Walls, 993 A.2d at 302.

Therefore,   any   proposed   testimony   from    Spencer   would    have   been

inadmissible. See 42 Pa.C.S. § 9545(d)(1).

     In any event, Appellant appears to suggest that Spencer would have

been able to impeach the credibility of Ms. Gomez’s account of the attack, in

particular, her testimony that she heard Spencer threatening her during the

time Appellant attacked her.     Appellant’s Brief at 28-29.        According to

Appellant, Spencer could have contradicted Ms. Gomez’s testimony by

stating he (Spencer) was not present at the time of the attack and did not

threaten Ms. Gomez.     Id.   Although Ms. Gomez testified that she heard

Spencer threaten her while Appellant was attacking her on Saturday, the

second day of the attack, N.T. Trial, 4/16/12-4/17/12, at 73, we discern no

2
 We note that Appellant’s brief does not challenge the PCRA court’s decision
not to appoint an investigator to locate Robert Spencer.



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basis to conclude that rebuttal of this minor point would have materially

affected the credibility of Ms. Gomez or the fairness of the trial. Ms. Gomez

consistently testified that Appellant attacked her over a three-day period,

from Friday to Sunday. Id. at 35-52. Officer Young also testified that upon

responding to the residence Ms. Gomez told him that Appellant had

assaulted her. Id. at 101. Lastly, Spencer’s purported testimony would not

have advanced Appellant’s defense that another individual or group of

individuals attacked Ms. Gomez while Appellant was away from the residence

for two hours on Sunday. Thus, Appellant has failed to demonstrate that the

absence of this testimony was exculpatory or that the absence of the

evidence deprived him of a fair trial.      See Walls, 993 A.2d at 302.

Accordingly, we affirm the PCRA court’s decision denying Appellant’s

petition.

      Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 8/14/2017




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