J-S67020-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

LIONEL HAMER, II

                            Appellant                  No. 479 WDA 2014


                   Appeal from the PCRA Order March 3, 2014
                  In the Court of Common Pleas of Erie County
              Criminal Division at No(s): CP-25-CR-0001372-2008


BEFORE: DONOHUE, J., MUNDY, J., and FITZGERALD, J.*

MEMORANDUM BY MUNDY, J.:                          FILED DECEMBER 03, 2014

        Appellant, Lionel Hamer, II, appeals from the March 3, 2014 order,

dismissing his petition for relief filed pursuant to the Post Conviction Relief

Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546.1 After careful review, we affirm.

        We summarize the relevant factual and procedural history of this case

as follows.     On July 11, 2008, the Commonwealth filed an information,

charging Appellant with one count each of aggravated assault and criminal

conspiracy.2    On January 20, 2009, the jury found Appellant guilty of the

above-mentioned offenses. On March 19, 2009, the trial court imposed an

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*
    Former Justice specially assigned to the Superior Court.
1
    The Commonwealth elected not to file a brief in this matter.
2
    18 Pa.C.S.A. §§ 2702(a)(1) and 903(a), respectively.
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aggregate sentence of 114 to 228 months’ imprisonment.3 Appellant filed a

timely post-sentence motion on March 30, 2009, which the trial court denied

the next day.4 On April 14, 2009, Appellant filed a timely notice of appeal.

On August 6, 2010, this Court issued a memorandum decision, reversing

and remanding for a new trial. Commonwealth v. Hamer, 11 A.3d 1015

(Pa. Super. 2010) (unpublished memorandum), reversed, 24 A.3d 359 (Pa.

2011).       On     August     3,   2011,      our   Supreme   Court   granted   the

Commonwealth’s petition for allowance of appeal, vacated this Court’s

judgment, and remanded for the consideration of Appellant’s remaining

issues on appeal.      Id.   On September 12, 2011, this Court addressed the

balance of Appellant’s issues on direct appeal and affirmed the judgment of

sentence in every aspect except as to restitution, for which this Court

remanded for resentencing. Commonwealth v. Hamer, 34 A.3d 223 (Pa.

Super. 2011) (unpublished memorandum).                Appellant did not seek further

review in our Supreme Court.              On January 31, 2012, the trial court



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3
  Specifically, the trial court imposed a sentence of 48 to 96 months’
imprisonment for criminal conspiracy and 66 to 132 months’ imprisonment
for aggravated assault. Both sentences were to run consecutively to each
other.
4
   We observe that the tenth day fell on Sunday, March 29, 2009. When
computing the ten-day filing period, “[if] the last day of any such period
shall fall on Saturday or Sunday … such day shall be omitted from the
computation.” 1 Pa.C.S.A. § 1908. Therefore, the tenth day for Appellant to
file a timely post-sentence motion was Monday, March 30, 2009.



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conducted a new restitution hearing, resulting in a new sentencing order.

Appellant did not file a new notice of appeal to this Court.

        On January 28, 2013, Appellant filed a timely pro se PCRA petition.

The PCRA court appointed counsel who filed an amended PCRA petition on

April 3, 2013. The PCRA court conducted an evidentiary hearing on July 12,

2013.     On March 3, 2014, the PCRA court entered an order dismissing

Appellant’s PCRA petition.         On March 24, 2014, Appellant filed a timely

notice of appeal.5

        On appeal, Appellant raises three issues for our review.

              [1.] [Whether t]he PCRA [c]ourt erred in denying
              [Appellant]’s PCRA petition and determining that trial
              counsel was not ineffective for failing to challenge
              the eye witness [sic] testimony given at trial
              regarding [Appellant]’s visible eye defect[?]

              [2.] [Whether t]he PCRA [c]ourt erred in denying
              [Appellant]’s PCRA petition and determining that trial
              counsel was not ineffective for failing to explain to
              [Appellant] his right to testify on his own behalf[?]

              [3.] [Whether t]he PCRA [c]ourt erred in denying
              [Appellant]’s PCRA petition and determining that
              prior appellate counsel was not ineffective for failing
              to appeal issues remaining after the Superior Court’s
              September 12, 2011 decision[,] to the Supreme
              Court[?]

Appellant’s Brief at 1.




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5
    Appellant and the PCRA court have complied with Pa.R.A.P. 1925.



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       We begin by noting our well-settled standard of review. “In reviewing

the   denial   of   PCRA     relief,   we      examine   whether   the   PCRA   court’s

determination is supported by the record and free of legal error.”

Commonwealth v. Fears, 86 A.3d 795, 803 (Pa. 2014) (internal quotation

marks and citation omitted). “The scope of review is limited to the findings

of the PCRA court and the evidence of record, viewed in the light most

favorable to the prevailing party at the trial level.”             Commonwealth v.

Spotz, 84 A.3d 294, 311 (Pa. 2014) (citation omitted).               “It is well-settled

that a PCRA court’s credibility determinations are binding upon an appellate

court so long as they are supported by the record.”                Commonwealth v.

Robinson, 82 A.3d 998, 1013 (Pa. 2013) (citation omitted). However, this

Court reviews the PCRA court’s legal conclusions de novo. Commonwealth

v. Rigg, 84 A.3d 1080, 1084 (Pa. Super. 2014) (citation omitted).

       The Sixth Amendment to the Federal Constitution provides in relevant

part that, “[i]n all criminal prosecutions, the accused shall enjoy the right …

to have the Assistance of Counsel for his defence.”6 U.S. Const. amend. vi.

The Supreme Court has long held that the Counsel Clause includes the right

to the effective assistance of counsel.              See generally Strickland v.


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6
  Likewise, Article I, Section 9 of the Pennsylvania Constitution states in
relevant part, “[i]n all criminal prosecutions the accused hath a right to be
heard by himself and his counsel ….” Pa. Const. Art. I, § 9. Our Supreme
Court has held that the Pennsylvania Constitution does not provide greater
protection than the Sixth Amendment. Pierce, supra at 976.



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Washington, 466 U.S. 668, 686; Commonwealth v. Pierce, 527 A.2d

973, 975 (Pa. 1987).

        In analyzing claims of ineffective assistance of counsel, “[c]ounsel is

presumed effective, and [appellant] bears the burden of proving otherwise.”

Fears, supra at 804 (brackets in original; citation omitted). To prevail on

any claim of ineffective assistance of counsel, a PCRA petitioner must allege

and prove “(1) the underlying legal claim was of arguable merit; (2) counsel

had no reasonable strategic basis for his action or inaction; and (3) the

petitioner was prejudiced—that is, but for counsel’s deficient stewardship,

there is a reasonable likelihood the outcome of the proceedings would have

been different.”     Commonwealth v. Simpson, 66 A.3d 253, 260 (Pa.

2013). “A claim of ineffectiveness will be denied if the petitioner’s evidence

fails to satisfy any one of these prongs.”         Commonwealth v. Elliott, 80

A.3d 415, 427 (Pa. 2013) (citation omitted).

        Furthermore, “[w]ith regard to the second, reasonable basis prong, we

do not question whether there were other more logical courses of action

which counsel could have pursued; rather, we must examine whether

counsel’s decisions had any reasonable basis.” Commonwealth v. Chmiel,

30 A.3d 1111, 1127 (Pa. 2011) (internal quotation marks and citation

omitted). “[W]e only inquire whether counsel had any reasonable basis for

[her]    actions,   not   if   counsel   pursued    the   best   available   option.”

Commonwealth v. Philistin, 53 A.3d 1, 10 (Pa. 2012) (citation omitted).


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“A fair assessment of attorney performance requires that every effort be

made to eliminate the distorting effects of hindsight, to reconstruct the

circumstances of counsel’s challenged conduct, and to evaluate the conduct

from counsel’s perspective at the time.” Commonwealth v. Carson, 913

A.2d 220, 226-227 (Pa. 2006), cert. denied, Carson v. Pennsylvania, 552

U.S. 954 (2007), citing Strickland, supra at 689.

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

not challenging any eyewitness testimony regarding Appellant’s visible eye

defect.7 Appellant’s Brief at 3. At the PCRA hearing, trial counsel testified

that there was only one witness who testified that “[Appellant] actually

struck the victim … [and his] testimony was all over the place, kind of a

mess.” N.T., 7/12/13, at 29. Counsel also noted that this witness made an

in-court identification of Appellant, as the witness knew Appellant.        Id. at

30.   Therefore, counsel believed that, had she asked the witness about

Appellant’s    eye   defect, it may have         further   enforced the   witness’s

identification of Appellant. Id.

       As noted above, it is axiomatic that the PCRA court’s credibility

determinations are binding on this Court. Robinson, supra. In this case,

counsel testified that she had a reasonable trial strategy to avoid the

possibility of having the sole in-court identification strengthened further by
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7
 Appellant’s left eye and right eye are different colors. N.T., 7/12/13, at 4-
5. According to Appellant, this is because he is blind in one eye. Id. at 4.



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bringing up Appellant’s unique optical trait. The PCRA court explicitly found

counsel’s testimony credible.     PCRA Court Final Order, 3/3/14, at 6.     As

noted above, our inquiry is limited to “whether counsel had any reasonable

basis for [her] actions[.]” Philistin, supra. In this case, we agree with the

PCRA court that counsel did have a reasonable basis for not pressing

Appellant’s eye defect further.     Therefore, we conclude Appellant is not

entitled to relief on this issue.     See Chmiel, supra; Philistin, supra;

Carson, supra.

      In his second issue, Appellant avers that “he was unaware that he was

able to testify on his own behalf.”    Appellant’s Brief at 4.   He argues that

trial counsel was ineffective for not making him aware of this right.

            The 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.

Commonwealth v. Michaud, 70 A.3d 862, 869 (Pa. Super. 2013) (citation

omitted).

      In the case sub judice, counsel testified that she and Appellant

discussed the possibility of his testifying in his own defense “on several

occasions[.]”   N.T., 7/12/13, at 28.       Counsel stated that “[o]ne of the

reasons that he was reluctant to take the stand was because he had a prior

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assault, and … if you were to open the door while he was testifying, that

could potentially come in, and [she] thought that would be very damaging

for the jury[.]”   Id.   Counsel also noted that had Appellant testified, the

Commonwealth could have cross-examined him on his statement that “he

threw a punch, but he hadn’t inflicted most of the damage …” to the victim,

which he claims was caused by his co-defendants.         Id. at 27.    The PCRA

court explicitly found trial counsel’s testimony credible on this issue. PCRA

Court Final Order, 3/3/14, at 6.      As a result, we cannot conclude that

counsel either “interfered with [Appellant’s] right to testify, or … gave

specific advice so unreasonable as to vitiate a knowing and intelligent

decision to testify on his own behalf.”     Michaud, supra.         Therefore, we

conclude Appellant is not entitled to relief on his second issue.

      In his third issue, Appellant argues that he was entitled to have his

allocatur rights reinstated nunc pro tunc. Appellant’s Brief at 5. Appellant

argues that “he wished for his appellate counsel to appeal the issues that

[this Court] had not remanded to the Supreme Court of Pennsylvania.” Id.

Appellant claims that appellate counsel “told him to put those issues into his

habeas corpus motion to be filed later.” Id. Appellant points to a letter he

wrote to appellate counsel dated October 14, 2012. At the PCRA hearing,

Appellant testified that right before his restitution hearing, he asked

appellate counsel to file an allocatur petition. N.T., 7/12/13, at 16.




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         This Court has explained that a defendant may have his allocatur

rights reinstated nunc pro tunc if he or she can show either “(1) that a

rational defendant would want to appeal (for example, because there are

non-frivolous grounds for appeal), or (2) that this particular defendant

reasonably demonstrated to counsel that he was interested in appealing.”

Commonwealth v. Bath, 907 A.2d 619, 623 (Pa. Super. 2006), appeal

denied, 918 A.2d 741 (Pa. 2007), quoting Commonwealth v. Touw, 781

A.2d 1250, 1254 (Pa. Super. 2001). As noted above, Appellant only argues

that the second condition applies in this case as Appellant avers he “did

request such an appeal and counsel failed to comply with this request.”

Appellant’s Brief at 5.

         At the PCRA hearing, appellate counsel testified that Appellant did not

discuss filing a petition for allowance of appeal in our Supreme Court with

him. N.T., 7/12/13, at 36, 38. The PCRA court expressly found appellate

counsel’s testimony credible on this issue.    PCRA Court Final Order, 3/3/14,

at 6. Furthermore, the October 14, 2012 letter does not contain any request

to appellate counsel to file a petition for allowance of appeal from this

Court’s September 12, 2011 memorandum decision. See Appellant’s Letter

to Appellate Counsel, 10/25/12, Commonwealth’s Exhibit 1. However, even

if the letter did contain such a request, the allocatur period for Appellant to

appeal expired on October 12, 2011, 30 days after this Court’s decision was

filed.    See Pa.R.A.P. 1113(a) (stating, “a petition for allowance of appeal


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shall be filed with the Prothonotary of the Supreme Court within 30 days

after the entry of the order of the Superior Court … sought to be

reviewed[]”).   Therefore, any request for counsel to file a petition for

allowance of appeal from this Court’s September 2, 2011 memorandum

decision would have been untimely.       Based on these considerations, we

conclude Appellant is not entitled to have his allocatur rights reinstated nunc

pro tunc. See Bath, supra.

      Based on the foregoing, we conclude all of Appellant’s issues on appeal

are devoid of merit. Accordingly, the PCRA court’s March 3, 2014 order is

affirmed.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/3/2014




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