J. S06044/19


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA               :     IN THE SUPERIOR COURT OF
                                           :           PENNSYLVANIA
                     v.                    :
                                           :
CHARLES LALONDE,                           :          No. 137 EDA 2018
                                           :
                          Appellant        :


                Appeal from the PCRA Order, December 20, 2017,
              in the Court of Common Pleas of Philadelphia County
                Criminal Division at No. CP-51-CR-0003703-2011


BEFORE: BOWES, J., DUBOW, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                     FILED APRIL 15, 2019

        Charles Lalonde appeals from the December 20, 2017 order entered by

the Court of Common Pleas of Philadelphia County dismissing without a

hearing his 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 provided the following synopsis of the relevant

procedural history:

              On March 12, 2011, [appellant] was arrested and
              charged with rape and aggravated indecent assault[1]
              after Philadelphia detectives received notification that
              there was a match in the Combined DNA Index
              System, linking him to a 2003 rape case that occurred
              on a secluded pedestrian-only walkway outside of the
              Franklin Mills Mall. On December 8, 2011, the [trial]
              court conducted a jury trial and on December 13,
              2011, the jury found [appellant] guilty of rape and

1   18 Pa.C.S.A. §§ 3121(a) and 3125(a), respectively.
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          aggravated indecent assault.           Following trial,
          [appellant] was evaluated by the Sexual Offender
          Assessment Board and determined to be a Sexually
          Violent Predator. On August 3, 2012, [appellant] was
          sentenced to 15 to 30 years[’] state incarceration. On
          August 7, 2012, [appellant] filed post-sentence
          motions, which were denied by operation of law on
          December 6, 2012.

          [On] December 12, 2012, [appellant] filed a Notice of
          Appeal to the Superior Court. On April 28, 2014[,]
          the Superior Court affirmed the trial court’s [judgment
          of sentence]. [Appellant] filed for allowance of appeal
          but was denied allocatur on October 8, 2014. [See
          Commonwealth v. Lalonde, 102 A.3d 544
          (Pa.Super. 2014) (unpublished memorandum),
          appeal denied, 101 A.3d 785 (Pa. 2014).] On
          April 28, 2015, [appellant] filed a timely pro se PCRA
          petition and a subsequent supplemental amended
          petition was filed on February 1[4], 2017. In his
          petitions, [appellant] argued that trial counsel was
          ineffective for failing to call witnesses and for failing
          to subpoena crucial security footage related to the
          case.

          On July 26, 2016, David Rudenstein, Esquire, was
          appointed as PCRA counsel. On February 14, 2017,
          counsel filed an amended petition for post-conviction
          relief which included a request for funds to employ a
          private investigator. Said funding was granted by [the
          PCRA] court. Thereafter, [the PCRA court] received a
          letter from counsel on April 19, 2017[,] indicating that
          counsel would not be filing a supplement to his
          amended petition. On November 27, 2017, counsel
          informed [the PCRA court] at a scheduled status
          listing that, after having further contact with
          [appellant], he did not have sufficient necessary
          information to hire an investigator. As a result, [the
          PCRA court] sent a [Pa.R.Crim.P.] 907 Notice of Intent
          to Dismiss to [appellant] on November 28, 2017. On
          December 11, 2017, [appellant] replied to [the PCRA
          court’s] 907 notice. On December 20, 2017, after
          independent review of [appellant’s] pro se petitions,
          PCRA       Counsel’s     amended      petition,      the


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              Commonwealth’s answer, and [appellant’s] reply to
              the 907 notice, [the PCRA court] dismissed
              [appellant’s] petition without a hearing based upon
              lack of merit. On December 29, 2017, [appellant]
              appealed the dismissal of his petition to the Superior
              Court.

PCRA court opinion, 6/15/18 at 2-3 (citation to the record omitted).

        On January 17, 2018, the PCRA court ordered appellant to file a concise

statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).

Appellant timely complied on February 6, 2018. On June 15, 2018, the PCRA

court filed an opinion pursuant to Pa.R.A.P. 1925(a).

        Appellant raises the following issue for our review:

              Did the Honorable PCRA Court err when it dismissed
              [appellant’s] Amended Petition without holding a
              hearing?

Appellant’s brief at 3.

        When reviewing a PCRA court’s denial of PCRA relief, it is well settled

that:

              [o]ur standard of review [] is whether the record
              supports the PCRA court’s determination and whether
              the PCRA court’s decision is free of legal error.
              Commonwealth v. Phillips, 31 A.3d 317, 319
              (Pa.Super. 2011) (citing Commonwealth v. Berry,
              877 A.2d 479. 482 (Pa.Super. 2005)). The PCRA
              court’s findings will not be disturbed unless there is no
              support for the findings in the certified record. Id.
              (citing Commonwealth v. Carr, 768 A.2d 1164,
              1166 (Pa.Super. 2001).

Commonwealth v. Larson, 90 A.3d 1, 4 (Pa.Super. 2014).

        Our supreme court has further stated as follows:



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           The PCRA court has the discretion to dismiss a petition
           without a hearing when the court is satisfied “that
           there are no genuine issues concerning any material
           fact, the defendant is not entitled to post-conviction
           collateral relief, and no legitimate purpose would be
           served by further proceedings.” Commonwealth v.
           Paddy, [] 15 A.3d 431, 442 ([Pa.] 2011) (quoting
           Pa.R.Crim.P. 909(B)(2)). “To obtain reversal of a
           PCRA court’s decision to dismiss a petition without a
           hearing, an appellant must show that he raised a
           genuine issue of fact which, if resolved in his favor,
           would have entitled him to relief, or that the court
           otherwise abused its discretion in denying a hearing.”
           Id. (quoting Commonwealth v. D’Amato, [] 856
           A.2d 806, 820 [Pa.] 2004)). 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. Jones, [] 811 A.2d 994, 1003 n.
           8 ([Pa.] 2002) (citation omitted). In Jones, we
           declined to remand for an evidentiary hearing when
           the appellant merely asserted that counsel did not
           have a reasonable basis for his lack of action but made
           no proffer of evidence as to counsel’s lack of action.

Commonwealth v. Roney, 79 A.3d 595, 640-605 (Pa. 2013), cert. denied

sub nom. Roney v. Pennsylvania, 135 S.Ct. 56 (2014).

     Here, appellant contends that trial counsel rendered ineffective

assistance for failing to “secure any video tapes that [Franklin Mills Mall]

security would have made.”    (Appellant’s brief at 8.)   Moreover, appellant

makes the bald allegation that “trial counsel, apparently, did nothing to

marshal any evidence in this case[.]” (Id. at 9.)

     Appellant, however, provides no evidence to support these claims, aside

from mere speculation that the videotapes in question even exist. Indeed, as

noted by the PCRA court,


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            [Appellant] failed to demonstrate that this supposed
            tape ever existed or what was on it. Moreover,
            [appellant] committed [his] crimes in 2003 but was
            not apprehended until 2011, therefore it is very
            unlikely that security footage from eight years earlier
            would still have existed at the time of trial eight years
            later.

PCRA court opinion, 6/15/18 at 5-6.

      Based on the record before us, we find that the record supports the

PCRA court’s determination that holding an evidentiary hearing would serve

no further legitimate purpose.      We further find that the PCRA court’s

determination is free of legal error. Accordingly, the PCRA court did not abuse

its discretion when it dismissed appellant’s PCRA petition without a hearing.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary


Date: 4/15/19




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