J-S18015-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    ROBERT PAUL BOLTZ, SR.                     :
                                               :
                       Appellant               :   No. 1591 MDA 2018

           Appeal from the PCRA Order Entered September 26, 2018
      In the Court of Common Pleas of Berks County Criminal Division at
                       No(s): CP-06-CR-0000648-2016

BEFORE:      BOWES, J., NICHOLS, J., and STEVENS,* P.J.E.

MEMORANDUM BY BOWES, J.:                                  FILED MAY 31, 2019

       Robert Paul Boltz, Sr., appeals pro se from the order that dismissed his

petition filed pursuant to the Post Conviction Relief Act (“PCRA”).1 We affirm.

       Appellant is currently serving a sentence of imprisonment following

convictions for aggravated assault, simple assault, recklessly endangering

another person, criminal mischief, and harassment. This Court offered the

following summary of the facts underlying Appellant’s convictions.

       During the evening hours of January 30, 2016, [Appellant’s]
       estranged wife, Lynda Boltz, was present inside of her residence
       . . . . At that time, Lynda Boltz’s boyfriend, James Wosochlo,
____________________________________________


1 Appellant purported to appeal from PCRA court’s August 28, 2018 order
giving Appellant notice of its intent to dismiss his petition without a hearing.
That was not a final, appealable order. See, e.g., Commonwealth v.
McGarry, 172 A.3d 60, 64 n.1 (Pa.Super. 2017). However, the PCRA court’s
September 26, 2018 order dismissing the petition ripened the previously-
premature appeal and perfected our jurisdiction.            See id.; Pa.R.A.P.
905(a)(5). We have amended the caption to reflect the final order that
properly forms the basis of this appeal.


*    Former Justice specially assigned to the Superior Court.
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      arrived at her residence to have dinner. Wosochlo was operating
      a red Chevrolet Silverado and parked in the driveway. After
      dinner, Lynda Boltz and Wosochlo were in the bedroom when they
      heard a noise outside coming from the rear portion of the
      residence. Wosochlo and Lynda Boltz then exited the residence
      to determine the source of the noise. . . . [Appellant] was in
      possession of a knife and attempted to stab Wosochlo in the
      chest/stomach area but was blocked by Wosochlo. . . . Wosochlo
      took the knife away from [Appellant] and threw it aside. During
      the altercation, Wosochlo sustained a scratch on his arm.
      Wosochlo secured [Appellant’s] arms and moved him to the front
      of the residence so [Appellant] would leave the property.
      [Appellant] threatened to sue Wosochlo if he suffered any injuries
      and referenced his prior back surgery. [Appellant] was shouting
      at Wosochlo and said “. . . I know where you live. I know where
      you work. I know you have a Mexican girlfriend.” Wosochlo
      released [Appellant] who then left the residence and the
      altercation concluded. The knife was recovered by Pennsylvania
      State Police Trooper Dominic Marino. After [Appellant] had left
      the residence, Wosochlo observed damage to his vehicle.
      Wosochlo noticed that the words “fuck you” were scratched into
      the paint on the back of his vehicle. He also saw that the anti-
      lock braking system lines were cut and all four of his tires were
      slashed. . . .

Commonwealth v. Boltz, 179 A.3d 534 (Pa.Super. 2017) (unpublished

memorandum at 1-2) (cleaned up).

      On October 3, 2017, this Court affirmed Appellant’s judgment of

sentence on direct appeal. Appellant timely filed the instant PCRA petition on

February 28, 2018. Appellant’s prior counsel filed a motion to withdraw, and

Appellant filed a motion to dismiss counsel. Following a hearing pursuant to

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

permitted Appellant to proceed pro se. The Commonwealth filed an answer

to the PCRA petition, and Appellant filed a response.          The PCRA court

thereafter issued notice of its intent to dismiss the petition without a hearing.

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After Appellant filed a premature appeal, the PCRA court dismissed the petition

by order of September 26, 2018. Both Appellant and the PCRA court complied

with Pa.R.A.P. 1925.

      Appellant states the following questions on appeal, which we have

renumbered for ease of disposition:

      1.    Whether the Appellant was wrongfully convicted, and
            sentenced in violation of the Double Jeopardy Clause[?]

      2.    Whether constitutional violations existed?

      3.    Whether there existed a conflict of interest (judicial
            misconduct) due to the Hon. M. Theresa Johnson, presiding
            over the Appellant’s divorce case, and criminal case?

      4.    Whether the Appellant was prejudiced by the [PCRA] court,
            when the Appellant wa[s] not afforded an opportunity to
            amend his pro-se petition for post conviction collateral
            relief, to further clarify/argue the allegations?

      5.    Whether defense/trial counsel was ineffective in various
            manners (layered), especially when refusing to abide by the
            Appellant’s request to file pre/post sentencing motions/and
            to investigate, meet, prepare for trial, and utilize at trial
            exculpatory witnesses to impeach victim’s complaint/
            testimony?

      6.    Was the Appellant prejudiced by the [PCRA] court, when it
            failed to hold an evidentiary hearing, based on the
            Appellant’s allegations of ineffective assistance of counsel?

      7.    Whether the [PCRA] court erred in dismissing Appellant’s
            pro-se petition for post conviction collateral relief, under the
            guise of unmeritorious allegations?




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Appellant’s brief at unnumbered 4-5 (unnecessary capitalization omitted).2

       We begin with the principles pertinent to our review. “Our standard of

review regarding a PCRA court’s order is whether the determination of the

PCRA court is supported by the evidence of record and is free of legal error.

The PCRA court’s findings will not be disturbed unless there is no support for

the findings in the certified record.”         Commonwealth v. Garcia, 23 A.3d

1059, 1061 (Pa.Super. 2011).            Further, “[i]t is an appellant’s burden to

persuade     us   that   the    PCRA     court   erred   and   that   relief   is   due.”

Commonwealth v. Miner, 44 A.3d 684, 688 (Pa.Super. 2012).

       Appellant’s first three issues, which claim constitutional violations

generally and a double jeopardy violation specifically, as well as judicial


____________________________________________


2Intermittent pages in Appellant’s brief are numbered, but do not add up to
an accurate count of the total pages. Our citations are to the number of the
pages as they correspond to the page Appellant has numbered “3” that
contains his Appellant’s statement of the order in question.

  Indeed, Appellant’s brief is a disorganized jumble, with little or no citation to
relevant authority. The Commonwealth argues that we should dismiss this
appeal or find all of Appellant’s issues waived on that basis. Commonwealth’s
brief at 6-8 (citing, inter alia, Pa.R.A.P. 2101 (providing that an appeal may
be dismissed based upon substantial defects in the brief; Commonwealth v.
Johnson, 985 A.2d 915, 924 (Pa. 2009) (stating claims are waived when not
properly developed)).       To the extent that we can discern Appellant’s
arguments, we will not find waiver based upon defects in his brief. However,
for the reasons discussed infra, the Commonwealth is apt in noting the long-
recognized principle that “while this [C]ourt is willing to liberally construe
materials filed by a pro se litigant, . . . any layperson choosing to represent
himself in a legal proceeding must, to some reasonable extent, assume the
risk that his lack of expertise and legal training will prove his undoing.”
Commonwealth’s brief at 7 (internal quotation marks omitted). See also
Commonwealth v. Greenwalt, 796 A.2d 996, 997 (Pa.Super. 2002) (same).

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misconduct, were not alleged in Appellant’s PCRA petition. Accordingly, we

may not address them on appeal. See, e.g., Commonwealth v. Ousley, 21

A.3d 1238, 1242 (Pa.Super. 2011) (“It is well-settled that issues not raised in

a PCRA petition cannot be considered on appeal.”) (cleaned up).

      With his fourth issue, Appellant claims that the PCRA court erred in not

allowing him to amend his petition. This issue was not raised in Appellant’s

Rule 1925(b) statement. Therefore, it is waived. See, e.g., Commonwealth

v. Hill, 16 A.3d 484, 494 (Pa. 2011) (“Any issues not raised in a Pa.R.A.P.

1925(b) statement will be deemed waived.”) (cleaned up).

      Appellant’s fifth issue concerns allegations of ineffectiveness of counsel.

We note that counsel is presumed to be effective, and a PCRA petitioner bears

the burden of proving otherwise. Commonwealth v. Becker, 192 A.3d 106

(Pa.Super. 2018). To do so, the petitioner must plead and prove (1) the legal

claim underlying his ineffectiveness claim has arguable merit; (2) counsel’s

decision to act (or not) lacked a reasonable basis designed to effectuate the

petitioner’s interests; and (3) prejudice resulted. Id. The failure to establish

any prong is fatal to the claim. Id.

      Appellant offers the following argument as to the deficient performance

of counsel:

             [Appellant] adamantly contends that defense counsel was
      ineffective in[ ]various forms; failure to meet and prepare for trial,
      failure to investigate, failure to abide by Pa.R.A.P. § 702. [I]f
      counsel would have sought advice from a medical physician, that
      e[x]pert’s testimony, most likely than not, would have proved that
      [Appellant] in his current state of health, could not have . . .

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       performed the acts, testifie[d] to by the alleged victim. Counsel’s
       failure to disclose or request that the trial judge recuse themselves
       due to a “conflict of interest,” was relevant, since the sitting judge,
       was also the presiding judge over [Appellant’s] divorce civil suit,
       where hearings had already had been held that prejudiced the
       defendant. (see) (Pa. Rules of Performance of Duties ex.al)
       Further, counsel’s negligence in asserting information with
       regards to the turbulaent [sic] divorce proceedings, would have
       led to the ulterior motives of his then spouse and live in boyfriend
       (alleged victim).

Appellant’s brief at 11, 15 (unnecessary capitalization omitted; emphases in

original).3

       Not all of these allegations are included in Appellant’s PCRA petition. As

discussed above, the petition contains no allegations about a conflict of

interest on the part of the trial judge. Nor did Appellant aver any negligence

on the part of trial counsel by injecting the divorce proceedings into the trial

or mention a medical expert. The petition also contains no allegations about

how counsel failed to comply with Pa.R.A.P. 702, which concerns final orders.

Accordingly, those issues are waived on appeal. See Ousley, supra at 1242.

       The only allegations found in the petition concerning counsel’s

performance are an unannotated list of case citations followed by the bald

assertions that counsel was ineffective “for failure to prepare/meet/strategize”

and for “failure to investigate.” PCRA Petition, 2/28/18, at ¶ 1, 2. The PCRA

court addressed those claims preliminarily by noting that Appellant was



____________________________________________


3The PCRA court’s order dismissing Appellant’s petition and Appellant’s Rule
1925(b) statement are interposed between pages 11 and 15.

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represented by several attorneys during the case, but he failed to indicate

which attorney or attorneys offered ineffective assistance. Order and Notice

of Intent to Dismiss, 8/28/18, at 8. The PCRA court further observed that

Appellant “failed to set forth sufficient facts upon which this court could

conclude that [his] unidentified counsel may have been effective.”            Id.

Moreover, the PCRA court recognized that Appellant did not discuss any of the

three ineffectiveness prongs. Id. Therefore, the PCRA court concluded that

his claims were waived for lack of development. Id. at 9.

      Our review of the record confirms the PCRA court’s representations.

Appellant’s petition contained insufficient allegations of what counsel should

or should not have done, or how he was prejudiced by counsel’s chosen

course. Nor did Appellant file a response to the PCRA court’s notice of intent

to dismiss expounding upon the basis of his claims, although the PCRA court

properly advised him of his right to do so. Accordingly, the PCRA court did

not abuse its discretion in dismissing Appellant’s underdeveloped petition.

See, e.g., Commonwealth v. McDermitt, 66 A.3d 810, 813-14 (Pa.Super.

2013) (affirming dismissal of claims of ineffective assistance of counsel where,

inter alia, allegations in petition did not explain specifics of underlying claim

or establish prejudice).

      The sixth issue identified by Appellant is that the PCRA court erred in

failing to hold a hearing on his ineffectiveness allegations. Appellant’s brief at

4. We disagree. There is no absolute right to an evidentiary hearing on a


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PCRA petition.     Commonwealth v. Springer, 961 A.2d 1262, 1264

(Pa.Super. 2008). “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.”

Commonwealth v. Brown, 196 A.3d 130, 193 (Pa. 2018) (cleaned up). As

the PCRA court properly concluded that Appellant’s claims of ineffective

assistance of counsel were not founded upon sufficient allegations to raise an

issue of fact concerning his entitlement to relief, the PCRA court did not abuse

its discretion in declining to hold a hearing on the issues.

      Appellant’s last contention is that the PCRA court erred in dismissing his

petition “under the guise of unmeritorious allegations.” Appellant’s brief at 4.

The PCRA court committed no such error, for, as our foregoing analysis

indicates, Appellant did not raise or develop any meritorious claim.         We

therefore conclude that Appellant has not met his burden “to persuade us that

the PCRA court erred and that relief is due,” and we affirm the order dismissing

Appellant’s petition. Miner, supra at 688.




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     Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/31/2019




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