J-S80036-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    COMONITI THOMAS                            :
                                               :
                       Appellant               :   No. 8 EDA 2018

                 Appeal from the PCRA Order October 19, 2017
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                       No(s): CP-51-CR-0010048-2008


BEFORE: BENDER, P.J.E., BOWES, J., and NICHOLS, J.

MEMORANDUM BY NICHOLS, J.:                               Filed March 19, 2019

        Appellant Comoniti Thomas appeals from the order dismissing his timely

first petition filed under the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§

9541-9546.      Appellant argues that the PCRA court erred in dismissing his

petition without a hearing because prior counsel were ineffective when

advising him not to testify at trial and by failing to ensure he properly waived

his right to direct appeal counsel. We affirm.

        The facts underlying Appellant’s convictions for two counts of first-

degree murder and one count each of attempted murder, robbery and

possession of an instrument of crime1 are well known to the parties and need

not be summarized here.            Of relevance to this appeal, we note that on

November 4, 2010, following a trial at which Appellant did not testify, a jury
____________________________________________


1   18 Pa.C.S. §§ 2502, 901(a), 3701 (a)(1)(i), and 907(a), respectively.
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found Appellant guilty of the foregoing crimes.      On November 10, 2010,

Appellant was sentenced to an aggregate term of life imprisonment without

parole. Appellant was represented at trial and sentencing by Gary S. Server,

Esq.

       On November 19, 2010, Attorney Server filed a timely post-sentence

motion and a motion to withdraw as counsel. On January 25, 2011, the trial

court held a hearing, at which it permitted Attorney Server to withdraw. On

February 28, 2011, the court appointed Elayne C. Bryn, Esq. to represent

Appellant on direct appeal. On March 22, 2011, the post-sentence motion

filed by Attorney Server was denied by operation of law. Appellant filed a

timely notice of appeal on April 15, 2011.

       On June 9, 2011, Attorney Bryn filed a petition with this Court to remand

the matter for a Grazier2 hearing. This Court granted Attorney Bryn’s motion.

Following a hearing on July 28, 2011, the trial court granted Appellant’s

request to proceed without counsel.

       Appellant proceeded pro se on direct appeal and raised fourteen claims

of error. On October 25, 2012, this Court affirmed Appellant’s judgment of

sentence. Commonwealth v. Thomas, 1048 EDA 2011 (Pa. Super. filed

Oct. 25, 2012) (unpublished mem.). On May 14, 2013, the Supreme Court of

Pennsylvania denied allowance of appeal. Commonwealth v. Thomas, 622

EAL 2012 (Pa. filed May 14, 2013).

____________________________________________


2   Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).

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       Appellant, acting pro se, timely filed his first PCRA petition, which the

PCRA court docketed on June 5, 2013.             On January 29, 2014, the court

docketed Appellant’s supplemental pro se PCRA petition. Thereafter, the PCRA

court appointed counsel, John P. Cotter, Esq. who filed an amended petition

on June 9, 2016.

       On August 1, 2016, Attorney Cotter filed a motion to withdraw as

counsel and indicated that Appellant intended to proceed pro se. The PCRA

court held a Grazier hearing on August 24, 2016, and Appellant withdrew his

request to relieve PCRA counsel.3

       On February 2, 2017, Attorney Cotter filed a supplemental amended

PCRA petition. On July 11, 2017, the PCRA court issued a Pa.R.A.P. 907 notice

of intent to dismiss Appellant’s petition without a hearing. Attorney Cotter did

not file a response to the Rule 907 notice. However, on July 26, 2017, the

court docketed Appellant’s pro se response. Appellant alleged that Attorney

Cotter was ineffective for failing to raise all of Appellant’s requested claims

and that a conflict of interest had developed during the course of

representation. See Appellant’s Pro Se Resp., 7/26/17.

       On September 1, 2017, Attorney Cotter filed another motion to

withdraw as counsel and to allow Appellant to proceed pro se. On October 19,
____________________________________________


3 The certified record includes a letter from Appellant to Attorney Cotter, in
which Appellant indicated that he had “no choice but to allow [Attorney Cotter]
to continue to represent” him, as Attorney Cotter had already filed a brief on
his behalf. Ltr., 9/13/16. Appellant also directed Attorney Cotter to raise
additional PCRA claims. Id.


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2017, the PCRA court conducted a video hearing, and Appellant once again

withdrew his request to proceed pro se. The following day, the PCRA court

entered an order dismissing Appellant’s petition without a hearing.

      On October 24, 2017, Appellant filed a timely notice of appeal.        The

PCRA court issued a Pa.R.A.P. 1925 order, and Appellant timely complied. The

PCRA court issued a Rule 1925(a) opinion on February 16, 2018.

      Appellant raises the following questions for review, which we have

reordered as follows:

      1. Did the [PCRA] court err in denying [A]ppellant an evidentiary
         hearing when [A]ppellant raised a material issue of fact that
         trial defense counsel was ineffective for vitiating [A]ppellant’s
         [c]onstitutional right to testify in his own defense at trial?

      2. Is [A]ppellant entitled to reinstatement of his right to appeal
         the judgment of sentence nunc pro tunc because his waiver of
         counsel on appeal from his judgment of sentence was not
         voluntary and was defense counsel ineffective for not objecting
         to trial court’s allowing [Appellant] to proceed pro se on
         appeal?

Appellant’s Brief at 2.

      Our standard of review from the denial of a PCRA petition “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.” Commonwealth v.

Ousley, 21 A.3d 1238, 1242 (Pa. Super. 2011) (citation omitted).

      To establish a claim of ineffective assistance of counsel, a petitioner

“must show, by a preponderance of the evidence, ineffective assistance of

counsel which, in the circumstances of the particular case, so undermined the



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truth-determining process that no reliable adjudication of guilt or innocence

could have taken place.” Commonwealth v. Turetsky, 925 A.2d 876, 880

(Pa. Super. 2007) (citation omitted).

      Counsel is presumed effective, and the burden is on the petitioner to

prove all three of the following prongs: “(1) the underlying claim is of arguable

merit; (2) that counsel had no reasonable strategic basis for his or her action

or inaction; and (3) but for the errors and omissions of counsel, there is a

reasonable probability that the outcome of the proceedings would have been

different.” Id. (citation omitted); see Commonwealth v. Daniels, 963 A.2d

409, 419 (Pa. 2009). 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. Natividad, 938 A.2d 310,

322-23 (Pa. 2007) (citation omitted). It is well settled that “[c]ounsel cannot

be   deemed     ineffective   for   failing    to   pursue   a   meritless   claim.”

Commonwealth v. Loner, 836 A.2d 125, 132 (Pa. Super. 2003) (en banc)

(citation omitted).

      Finally, “it is well settled that the right to an evidentiary hearing on a

PCRA petition is not absolute, and the PCRA court may decline to hold a

hearing if the petitioner’s claims are patently frivolous with no support in either

the record or other evidence.” Commonwealth v. Garcia, 23 A.3d 1059,

1066 n.9 (Pa. Super. 2011) (citation omitted).

      In his first issue, Appellant argues that trial counsel was ineffective for

advising him not to testify at trial.         Appellant’s Brief at 6.   By way of

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background, Appellant set forth the following claim in his counseled, amended

PCRA petition:

      [Appellant’s] defense counsel was ineffective at trial because
      counsel did not call [Appellant] as a witness in his own behalf at
      trial. The advice that counsel gave to [Appellant] as to why he
      should not testify was so unreasonable that it vitiated
      [Appellant’s] knowing and intelligent decision not to testify on his
      own defense. [Appellant’s] testimony would have provided a
      complete defense to the charge and established his innocence.
      [Appellant] is entitled to a new trial because of trial defense
      counsel’s ineffectiveness and [Appellant] has not waived this issue
      because it is the first opportunity that he has to raise it.

Supp. Amended Pet., 2/2/17, at 2 (unpaginated).

      On appeal, Appellant reiterates that trial counsel’s advice was “so

unreasonable that it vitiated [Appellant’s] knowing and intelligent decision not

to testify [on] his own behalf. . .” Appellant’s Brief at 6. Appellant contends

that “there was no reasonable basis for trial counsel to advise [Appellant] not

to testify in his own defense” and “in light of the evidence presented at trial[,

only Appellant’s] testimony could have established his innocence.”            Id.

Appellant also asserts that his claim raises a material issue of fact, and

therefore the matter should be remanded for an evidentiary hearing. Id.

      It is well settled that

      [t]he decision of whether or not to testify on one’s own behalf is
      ultimately to be made by the defendant after full consultation with
      counsel. In order to sustain a claim that counsel was ineffective
      for failing to advise the appellant of his rights in this regard, the
      appellant must demonstrate either that counsel interfered with his
      right to testify, or that counsel gave specific advice so
      unreasonable as to vitiate a knowing and intelligent decision to
      testify on his own behalf.


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Commonwealth v. Nieves, 746 A.2d 1102, 1104 (Pa. 2000) (citations

omitted).

      Instantly, Appellant failed to allege what specific advice counsel gave

him or how that advice was unreasonable. Appellant’s bald claim that counsel

provided unreasonable advice was insufficient to warrant an evidentiary

hearing. Similarly, Appellant’s cursory arguments on appeal reveal no error

or abuse of discretion by the PCRA court. See Commonwealth v. Bazabe,

590 A.2d 1298, 1302 (Pa. Super. 1991) (stating that although the petitioner’s

PCRA claim set forth a “verbatim statement of the applicable law,” it was

“totally devoid of any allegations of specific statements of trial counsel which

might have misled [the appellant]” and concluding that “mere boilerplate

allegations will not suffice to require a hearing” (emphasis omitted)); accord

Commonwealth v. Thomas, 783 A.2d 328, 334-35 (Pa. Super. 2001).

Accordingly, we find no abuse of discretion in the PCRA court’s dismissal of

Appellant’s claim. See Bazabe, 590 A.2d at 1302.

      In his second issue, Appellant argues that his waiver of direct appeal

counsel was not knowing, intelligent, or voluntary. Appellant’s Brief at 7. He

claims that the trial court failed to question Appellant about “his mental health,

his use of alcohol, drugs[,] or other medications[,] and whether anyone

promised him anything or threatened him. . .” Id. Appellant asserts that

because he indicated at the Grazier hearing that he was waiving his right to

counsel “under duress,” it was necessary for the court to ensure that his

waiver was voluntary.     Id. at 7-8.    Appellant concludes that the waiver

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colloquy was deficient, and alleges that he is entitled to reinstatement of his

direct appeal rights nunc pro tunc. Id. at 8. Appellant also claims that direct

appeal counsel was ineffective for failing to challenge the court’s defective

colloquy and decision to grant Appellant’s motion to represent himself. Id.

       “When a waiver of the right to counsel is sought at the post-conviction

and appellate stages, an on-the-record determination should be made that

the waiver is a knowing, intelligent, and voluntary one.” Grazier, 713 A.2d

at 82 (citations omitted). Specifically, the waiver of counsel colloquy must

demonstrate that the defendant understood “(1) his right to be represented

by counsel; (2) that if he waived this right, he will still be bound by all normal

procedural rules; and (3) that many rights and potential claims may be

permanently lost if not timely asserted.” Commonwealth v. Meehan, 628

A.2d   1151,     1157   (Pa.   Super.   1993)   (citation   omitted);   see   also

Commonwealth v. Powell, 787 A.2d 1017, 1020 (Pa. Super. 2001).

       Additionally, “when a petitioner claims ineffective assistance of counsel

based on a failure to object to an allegedly defective waiver colloquy, the claim

must be analyzed like any other ineffectiveness claim.” Commonwealth v.

Spotz, 18 A.3d 244, 263 (Pa. 2011). Specifically, our Supreme Court has

explained that

       [t]he petitioner cannot prevail merely by establishing that the
       waiver colloquy was indeed defective in some way. Rather, the
       petitioner must prove that, because of counsel’s ineffectiveness,
       he waived the constitutional right at issue unknowingly or
       involuntarily, and that he was prejudiced. To establish prejudice,
       the petitioner must demonstrate a reasonable probability that but
       for counsel’s ineffectiveness, he would not have waived the right

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      at issue. In considering such a claim of ineffectiveness, the court
      considers the totality of the circumstances and the entire record,
      not just the colloquy itself.

Id. at 263-64 (citations omitted).

      The PCRA court addressed Appellant’s claim as follows:

      At the [Grazier] hearing [during Appellant’s direct appeal],
      [Appellant] demonstrated that he did not understand the various
      steps in the appellate process. He complained of his inability to
      obtain documents and expressed frustration about communication
      with his attorneys—he claimed to have fired four previous lawyers.

      Th[e trial] court warned [Appellant] of the perils of self-
      representation:

         My feeling is, [Appellant], that you’d be much better off with
         [Attorney] Bryn than representing yourself, so much better
         off. I just have to tell you that.

         If you represent yourself, you will be held to the same
         standard as any lawyer would. You would be required to
         follow all the rules that lawyers would have to follow. And,
         you know, frankly, [Appellant], I don't think you’re in a
         position to do that.

         You ought to let [Attorney] Bryn continue to represent you
         and do what has to be done with the Superior Court in an
         effort to get you a new trial. I think that’s what you should
         do.

      Later in the hearing, [Appellant] stated:

         You know, hold on, Your Honor. You know what? I prefer
         to go pro se.

      The [trial] court stated:

         Okay. [Appellant], that will end this hearing and as long as
         you understand that you’re going to be bound by all the
         rules that attorneys are bound by, and I wish you the best
         of luck. Thank you very much. That will end this hearing.

      [Appellant] responded:

         Okay. Your Honor? Hold on, Your Honor.

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      The [trial] court responded:

         No, I’m not holding on, No, I’m not holding on. [Appellant],
         I’m not holding on any longer. This hearing is over.

      Appellant stated:

         Thank you. Just give me my discovery. Please? Thank you.

      [Appellant] wanted to represent himself. He heard the [trial]
      court’s warnings of the dangers of self-representation. In the
      course of the hearing, [Attorney] Bryn responded to [Appellant’s]
      requests for documents and advised him of the procedures on
      appeal. [Appellant] said clearly that he wanted to go pro se.
      Despite [Attorney] Bryn’s explanations, [Appellant] insisted on
      representing himself. [Appellant] knew what he was doing, and
      he got his wish.

PCRA Ct. Op., 2/16/18, at 3-5 (record citations omitted).

      Therefore, it is clear from the record that Appellant did not waive the

right to counsel under duress. Indeed, both the trial court and Attorney Bryn

strongly cautioned Appellant about the consequences of proceeding pro se on

appeal, but Appellant believed he was in the best position to handle his case.

See N.T., 7/28/11, at 1-20.

      Moreover, with respect to the waiver colloquy, the trial court explained

to Appellant that proceeding with court-appointed counsel was in his best

interest and that he was ill-equipped to handle his appeal. Id. at 9, 13-14.

However, although Appellant understood his right to counsel, he stated that

he “just got rid of basically four attorneys,” and insisted that both trial counsel

and Attorney Bryn failed to follow his instructions regarding his case. Id. at

14-15. The trial court informed Appellant that were he to proceed pro se, he

would be held to the same standards as a licensed attorney and bound by the


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applicable procedural rules of the court. Id. at 9, 20. The court also explained

to Appellant the importance of issue preservation, and stated that if Appellant

failed to timely assert his rights, those rights may be permanently lost. Id.

at 7-9, 14-16, 20. Nevertheless, Appellant concluded that he “would prefer

to go pro se.”   Id. at 20.

      Finally, to the extent that Appellant argues Attorney Bryn was

ineffective, that claim is meritless. As noted above, the PCRA court properly

concluded that the waiver colloquy was sufficient. Therefore, Attorney Bryn

will not be found ineffective for failing to pursue a meritless claim. See Loner,

836 A.2d at 132. Therefore, the record demonstrates that Appellant’s decision

to proceed pro se was knowing, intelligent, and voluntary and that Appellant’s

claim of ineffective assistance of counsel lacked merit. See Grazier, 713 A.2d

at 82; see also Meehan, 628 A.2d at 1157. Accordingly, we find no error or

abuse of discretion in the PCRA court’s dismissal of this claim. See Ousley,

21 A.3d at 1242.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/19/2019




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