J-S21035-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,            :    IN THE SUPERIOR COURT OF
                                         :          PENNSYLVANIA
                Appellee                 :
                                         :
                   v.                    :
                                         :
                                         :
KAREAM S. BUNDY,                         :
                                         :
               Appellant                 :    No. 1419 WDA 2016

          Appeal from the PCRA Order Entered September 1, 2016
             in the Court of Common Pleas of Cambria County
            Criminal Division at No(s): CP-11-CR-0000202-2015

BEFORE: LAZARUS, DUBOW, and STRASSBURGER*, JJ.

MEMORANDUM BY STRASSBURGER, J.:                         FILED MAY 30, 2017

      Kaream S. Bundy (Appellant) appeals from the September 1, 2016

order dismissing his petition filed pursuant to the Post Conviction Relief Act

(PCRA), 42 Pa.C.S. §§ 9541-9546. We affirm.

      In light of the issue presented, a complete factual history is

unnecessary. Pertinent to this appeal, on March 17, 2015, Appellant entered

a negotiated guilty plea, pleading guilty to three counts of possession with

the intent to deliver.1    On April 8, 2015, Appellant received an aggregate

sentence of 42 to 108 months’ incarceration. No direct appeal was filed.




1
 At Appellant’s guilty plea hearing, the Assistant District Attorney set forth
the following factual history of this case: Upon learning of two men selling
heroin and crack cocaine from a home in Johnstown, Pennsylvania, a search
warrant was executed, wherein police found, inter alia, a large quantity of
heroin, and Appellant, who was one of the men suspected of dealing drugs.


*Retired Senior Judge assigned to the Superior Court.
J-S21035-17


      On August 21, 2015, Appellant pro se timely filed a PCRA petition

seeking to withdraw his guilty plea. Counsel was appointed and an amended

petition was filed.   An evidentiary hearing was held on August 30, 2016.

Following the hearing the PCRA court issued an opinion and order denying

Appellant’s petition. See Opinion and Order, 9/1/2016.

      On September 16, 2016, Appellant timely filed a notice of appeal and

complied with the PCRA court’s order to file a concise statement pursuant to

Pa.R.A.P. 1925. Appellant now raises the following issue for our review.

      I.    The [PCRA court] erred in denying [Appellant’s PCRA
            petition] on the basis that [] Appellant’s prior counsel was
            not ineffective; to the contrary, [] Appellant submits that
            his prior counsel was ineffective as he coerced [] Appellant
            into entering a plea in a manner that was not voluntary
            and knowing, as [] Appellant’s prior counsel never
            request[ed] discovery for [] Appellant.

Appellant’s Brief at 2.

      Appellant’s sole issue on appeal challenges the effectiveness of his

counsel. Accordingly, we bear in mind the following.

             This Court analyzes PCRA appeals in the light most
      favorable to the prevailing party at the PCRA level. Our review
      is limited to the findings of the PCRA court and the evidence of
      record and we do not disturb a PCRA court’s ruling if it is
      supported by evidence of record and is free of legal error.
      Similarly, we grant great deference to the factual findings of the
      PCRA court and will not disturb those findings unless they have
      no support in the record. However, we afford no such deference
      to its legal conclusions. Where the petitioner raises questions of
      law, our standard of review is de novo and our scope of review is
      plenary. Finally, we may affirm a PCRA court’s decision on any
      grounds if the record supports it.




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Commonwealth v. Benner, 147 A.3d 915, 919 (Pa. Super. 2016) (quoting

Commonwealth v. Perry, 128 A.3d 1285, 1289 (Pa. Super. 2015)). “It is

well-established that counsel is presumed effective, and the defendant bears

the burden of proving ineffectiveness.” Commonwealth v. Martin, 5 A.3d

177, 183 (Pa. 2010). To overcome this presumption, Appellant must show

each of the following:    “(1) the underlying substantive claim has arguable

merit; (2) counsel whose effectiveness is being challenged did not have a

reasonable basis for his or her actions or failure to act; and (3) the petitioner

suffered prejudice as a result of counsel’s deficient performance.”          Id.

Appellant’s claim will be denied if he fails to meet any one of these three

prongs. Id.

      Appellant argues that his trial counsel, Arthur McQuillan, Esquire,

failed to provide effective assistance because he did not request and obtain

discovery prior to Appellant’s entry into a negotiated guilty plea. Appellant’s

Brief at 8-9. Appellant contends this failure by counsel denied Appellant “the

opportunity to enter a [knowing and competent plea, because Appellant]

never had the opportunity to review what evidence the Commonwealth had

against him.” Id. at 9.

      In response, the Commonwealth noted that Attorney McQuillan was

not subpoenaed nor present at the PCRA hearing. Commonwealth’s Brief at

5. The Commonwealth avers the absence of Attorney McQuillan’s testimony

at the hearing on this alleged ineffectiveness is fatal to Appellant’s claim.



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See Id. (citing Commonwealth v. Koehler, 36 A.3d 121 (Pa. 2012))

(“Failure to elicit testimony from trial counsel regarding the reasonable basis

for trial counsel’s actions is fatal to a PCRA claim.”). We agree.

      Our [Supreme Court’s decision in Commonwealth v. Lesko, 15
      A.3d 345, 374 (Pa. 2011)] illustrates this point. There, the PCRA
      petitioner contended that trial counsel was ineffective for failing
      to request an appropriate limiting instruction when the trial court
      admitted evidence of the petitioner’s prior bad acts. In rejecting
      the claim, we recognized that “[i]t is well settled that decision
      whether to seek a jury instruction implicates a matter of trial
      strategy.” Because Lesko was given an evidentiary hearing and
      yet did not elicit from trial counsel his reasons for failing to
      request the cautionary charge, we concluded that Lesko failed to
      sustain his burden of demonstrating a lack of reasonable basis.
      We held that because Lesko did not establish any ground for
      deeming counsel per se ineffective, and did not establish a lack
      of reasonable basis through trial counsel’s testimony at the PCRA
      hearing, he failed to sustain his burden of proof. See also
      Commonwealth v. Puksar, [951 A.2d 267, 278 (Pa. 2008)]
      (rejecting ineffectiveness claim because, inter alia, PCRA counsel
      failed to question trial counsel during the PCRA hearing
      regarding his trial strategy for not calling a particular witness);
      Commonwealth v. Ervin, 766 A.2d 859 (Pa. Super. 2000)
      (rejecting claim challenging trial counsel’s failure to object to the
      prosecutor’s questioning and argument on the reasonable basis
      prong of the ineffectiveness test because the PCRA petitioner
      was afforded an evidentiary hearing, but failed to question trial
      counsel regarding his trial strategy as it related to the claim of
      ineffectiveness).

Koehler, 36 A.3d at 146–47 (footnote and some citations omitted).

      Here, Appellant raises an ineffectiveness claim based upon Attorney

McQuillan’s failure to request discovery prior to the entry of his plea.

However, Appellant failed to request the presence of Attorney McQuillan at




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the PCRA hearing to elicit his testimony.2      Without any record evidence to

establish whether counsel had a reasonable basis, Appellant cannot prove

that counsel’s failure to request discovery was unreasonable. Thus, as in the

cases cited supra, Appellant has failed to meet his burden.               See

Commonwealth v. Cam Ly, 980 A.2d 61, 73 (Pa. 2009) (“A failure to

satisfy any one of the three prongs of the test for ineffectiveness requires

rejection of the claim.”) (citation omitted).

       In light of the foregoing, Appellant has failed to convince this Court

that the PCRA court erred by dismissing his petition, and we affirm the PCRA

court’s order.

       Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 5/30/2017




2
 Notably, at the evidentiary hearing, Appellant’s PCRA counsel asked the
Commonwealth if it would consent to a continuance so that PCRA counsel
could subpoena Attorney McQuillan to testify. N.T., 8/30/2016, at 10.
However, the record reveals that upon PCRA counsel’s consultation with
Appellant, Appellant declined to continue the hearing, deciding to proceed
without Mr. McQuillan. See Id. at 4, 10.


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