J-S53022-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                        IN THE SUPERIOR COURT
                                                       OF PENNSYLVANIA
                          Appellee

                     v.

TRACEY THOMAS

                          Appellant                     No. 187 EDA 2019


          Appeal from the PCRA Order entered December 17, 2018
            In the Court of Common Pleas of Philadelphia County
              Criminal Division at No: CP-51-CR-0011791-2010


BEFORE: OLSON, J., STABILE, J., and NICHOLS, J.

MEMORANDUM BY STABILE, J.:                        FILED DECEMBER 31, 2019

      Appellant, Tracey Thomas, appeals from the December 17, 2018 order

entered in the Philadelphia County Court of Common Pleas, denying his

petition for collateral relief pursuant to the Post Conviction Relief Act (“PCRA”),

42 Pa.C.S.A. §§ 9541-9546.       Appellant contends the PCRA court erred by

denying his requested relief without an evidentiary hearing and by failing to

find trial counsel ineffective. Finding no abuse of discretion or error of law in

the PCRA court’s ruling, we affirm.

      On direct appeal, this Court summarized the factual background of his

case as follows:

      At approximately 9:00 pm on July 14, 2010, the victim, Donald
      Odom, was drinking at the Crab House Bar in Philadelphia. While
      Mr. Odom was seated at the bar, Appellant approached him,
      brandished a gun, and demanded Mr. Odom’s wallet. Appellant
      took Mr. Odom’s money, keys, and cellular telephone.
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     After the incident, Mr. Odom reported the robbery to the police
     and identified Appellant from a photographic array of eight
     individuals. Mr. Odom signed a police statement confirming that
     he selected Appellant’s image from the array of photographs.
     However, at Appellant’s preliminary hearing, Mr. Odom failed to
     identify Appellant as the robber. During that proceeding, Mr.
     Odom further claimed that he did not have a very good chance to
     see the assailant and that he was inebriated when he signed the
     police statement. Nevertheless, during the ensuing trial, Mr.
     Odom again identified Appellant, who was present in court, as his
     assailant.

Commonwealth v. Thomas, No 335 EDA 2013, unpublished memorandum

at 1-2 (Pa. Super. filed November 19, 2014) (citations to notes of trial

testimony omitted).

     As the PCRA court explained:

     On April 12, 2012, a jury sitting before the Honorable Adam Beloff
     convicted [Appellant] of robbery, carrying an unlicensed firearm
     in Philadelphia (“VUFA § 6106”), carrying firearms in public in
     Philadelphia (“VUFA § 6108”), and possession of an instrument of
     crime (“PIC”). On August 29, 2012, Judge Beloff sentenced
     [Appellant] to an aggregate term of eighteen and one-half to thirty
     seven years incarceration, which constitutes the statutory
     maximum punishment for each of the four offenses. Specifically,
     [Appellant] was sentenced to 10 to 20 years incarceration on the
     charge of robbery, 3½ to 7 years incarceration on the charge of
     VUFA § 6106, 2½ to 5 years incarceration on the charge of VUFA
     § 6108, and 2½ to 5 years incarceration on the charge of PIC to
     each run consecutively.

     On September 7, 2012, [Appellant] filed post-sentence motions,
     which were denied by operation of law on January 17, 2013. On
     January 31, 2013, [Appellant] filed a notice of appeal. On
     November 19, 2014, the Superior Court affirmed [Appellant’s]
     judgment of sentence. On December 14, 2014, [Appellant] filed
     a petition for allocatur to the Pennsylvania Supreme Court, which
     was denied on June 3, 2015.




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        On October 30, 2015, [Appellant] filed his first timely PCRA
        petition. On May 6, 2018, [Appellant] filed an amended PCRA
        petition. On November 15, 2018, the Commonwealth filed a
        motion to dismiss. On November 15, 2018, after a review of the
        documents, the court sent [Appellant] a 907 notice of intent to
        dismiss based upon lack of merit. On December 17, 2018, having
        received no response from [Appellant] to the 907 notice, this court
        dismissed [Appellant’s] petition for lack of merit. On January 16,
        2019, [Appellant] filed his notice of appeal.[1]

PCRA Court Opinion, 3/28/19, at 2-3 (some capitalization omitted).2

        Appellant asks us to consider two issues in this appeal:

        I.    Whether the court erred in denying the Appellant’s PCRA
              petition without an evidentiary hearing on the issues raised
              in the amended PCRA petition regarding trial counsel’s
              ineffectiveness?

        II.   Whether the court erred in not granting relief on the PCRA
              petition alleging counsel was ineffective.

Appellant’s Brief at 8.

        In Commonwealth v. Mason, 130 A.3d 601 (Pa. 2015), our Supreme

Court reiterated:

        “Our review of a PCRA court’s decision is limited to examining
        whether the PCRA court’s findings of fact are supported by the
        record, and whether its conclusions of law are free from legal
        error.” Commonwealth v. Hanible, 612 Pa. 183, 204, 30 A.3d
        426, 438 (2011) (citing Commonwealth v. Colavita, 606 Pa. 1,
        21, 993 A.2d 874, 886 (2010)). We view the findings of the PCRA
        court and the evidence of record in a light most favorable to the
        prevailing party. Id. With respect to the PCRA court’s decision to
        deny a request for an evidentiary hearing, or to hold a limited
        evidentiary hearing, such a decision is within the discretion of the
____________________________________________


1   The PCRA court did not order the filing of a Rule 1925(b) statement.

2 We note that Judge Beloff is deceased and was not involved in any
proceedings subsequent to the sentencing hearing.

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      PCRA court and will not be overturned absent an abuse of
      discretion. See Commonwealth v. Reid, 627 Pa. 151, 99 A.3d
      470, 485 (2014). “The PCRA court’s credibility determinations,
      when supported by the record, are binding on this Court; however,
      we apply a de novo standard of review to the PCRA court’s legal
      conclusions.” Commonwealth v. Roney, 622 Pa. 1, 16, 79 A.3d
      595, 603 (2013).

Id. at 617.

      In his first issue, Appellant contends the PCRA court erred in not

granting an evidentiary hearing. As reflected above, the denial of a request

for a hearing will not be overturned absent an abuse of discretion. As this

Court explained in Commonwealth v. Hart, 199 A.3d 475 (Pa. Super. 2018),

if the PCRA court denies a petition without an evidentiary hearing, we must

determine whether the court erred by concluding there were no genuine issues

of material facts that required a hearing. Id. at 481. If there are no disputed

factual issues, an evidentiary hearing is not required.             Id. (citing

Commonwealth v. Morris, 684 A.2d 1037, 1042 (Pa. 1997)).

      Appellant cites Commonwealth v. Barbosa, 819 A.2d 81 (Pa. Super.

2003), in support of his contention that a court may not summarily dismiss a

PCRA petition when the facts alleged in the petition, if proven, would entitle

an appellant to relief. Appellant’s Brief at 14-15. However, Appellant has

taken that statement out of context and ignores the language that

immediately precedes it, i.e., “If the PCRA court can determine from the record

that no genuine issues of material fact exist, then a hearing is not necessary.”

Barbosa, 819 A.2d at 85 (citing, inter alia, Pa.R.Crim.P. 907(1)). In other


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words, when there are genuine issues of material fact, the court should not

summarily dismiss the petition if those disputed facts—proven in an

appellant’s favor—would entitle the appellant to relief. However, Appellant

has not identified any genuine issues of material fact that would warrant an

evidentiary hearing.

      Appellant also cites Commonwealth v. Early, 546 A.2d 1236, 1240

(Pa. Super. 1983), for the proposition that a hearing “should be held on any

issue that the PCRA Court is not certain lacks merit.” Appellant’s Brief at 15.

Again, however, Appellant fails to appreciate the context in which the

statement was made in Early. Just as in Barbosa, the Court was recognizing

that a hearing is required if there are genuine issues of material fact and the

PCRA court cannot conclusively determine that those genuine issues lack

merit.

      Here, Appellant has not identified anything in the PCRA court’s ruling

that reflects any level of uncertainty in that court’s disposition of Appellant’s

claims. And, again, Appellant has not identified any genuine issues of material

fact that necessitate an evidentiary hearing. Instead, Appellant simply argues

an evidentiary hearing was necessary so Appellant could “demonstrate [the]

manifest injustice” resulting from trial counsel’s “fail[ure] to object to the

judge using unadjudicated offenses which resulted in an increased sentence

outside the guidelines[.]” Appellant’s Brief at 15.




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        Our review of the sentencing transcript fails to reveal any reference by

the sentencing court to “unadjudicated offenses.” Although the prosecutor

referred to Appellant’s juvenile history,3 the court did not make any specific

reference to Appellant’s juvenile history. Rather, on one occasion, the court

mentioned Appellant’s “related cases.” Specifically, the court stated:

        I’ve considered your background, as I’ve said; your character;
        rehabilitation needs, the nature and circumstances; the
        seriousness of this crime; the number of related cases; your
        caretaking responsibility for a child that is being raised by the
        child’s grandmother, maternal grandmother; the need to protect
        the community; the harm here and severity; the risk of you
        committing another crime, and I think that this risk is high; and
        the degree a lesser sentence would depreciate the seriousness of
        the crime.

Notes of Testimony, Sentencing, 8/29/12, at 23 (emphasis added).


____________________________________________


3   Addressing the court, the prosecutor stated:



              He is 22 years of age. He sits before you having been a
        criminal for the past ten years. He had his first juvenile arrest at
        the age of 12.

              And something struck me as I sat here and read his
        presentence investigation. As a juvenile he had eight arrests,
        three adjudications of delinquencies, seven commitments.

               Was he given an opportunity to rehabilitate? Yes. Seven
        times. Did any of that help? Absolutely not. Because two weeks
        after being discharged from a juvenile commitment, he picked up
        his first adult arrest. Two weeks. That did nothing for him. That
        did nothing for him.



Notes of Testimony, Sentencing, 8/29/12, at 10.


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      Appellant suggests, without substantiation, that the sentencing court’s

passing reference to “related cases” was a reference to Appellant’s past

juvenile record. The PCRA court posited that “the related cases could also be

any of the three adult arrests for violent offenses that [Appellant] incurred.”

PCRA Court Opinion, 3/28/19, at 7. As the court noted, as an adult Appellant

had been “arrested for aggravated assault and related crimes, robbery and

related crimes, as well as assault and recklessly endangering another person

in a domestic incident for punching his child’s mother with a closed fist in front

of his child.” Id.

      Regardless, the sentencing court was required to consider Appellant’s

juvenile record when determining his prior record score, which the parties

agreed was a prior record score of one.       Notes of Testimony, Sentencing,

8/29/12, at 2.       As the PCRA court recognized, “Juvenile adjudications are

admissible for the purpose of the presentence investigation and report after a

defendant was convicted of a crime, which was the case here.” Id. at 7 (citing

42 Pa.C.S.A. 6354(b)(1)). “Further, a sentencing court is required to examine

a defendant’s juvenile record when crafting an appropriate sentence.”

Commonwealth v. Lilley, 978 A.2d 995, 1000 (Pa. Super. 2009). “[A] child

who continues his pattern of serious and violent anti-social activity into

adulthood, should not receive the benefit of a cloak of immunity regarding

that behavior, when it is relevant to predicting future behavior and the public




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safety is at risk.” Id. (quoting Commonwealth v. Smith, 481 A.2d 1365,

1366 (Pa. Super. 1984)).

       The convictions at issue in this case stem from events that occurred on

July 14, 2010, four days before Appellant’s 20th birthday. According to the

prosecutor, in addition to Appellant’s prior adult cases, Appellant had a

juvenile record dating back to when he was twelve years old. See n. 3, supra.

The court properly considered the presentence investigation report, which

reflected Appellant’s juvenile record, in satisfying its requirement to consider

“the protection of the public, the gravity of the offense as it related to the

impact on the life of the victim and on the community, and the rehabilitative

needs of the defendant” when fashioning a sentence. 42 Pa.C.S.A. § 9721(b). 4

Therefore, even if the sentencing judge was referring to Appellant’s juvenile

record when he mentioned Appellant’s “related cases,” there was no error in

doing so.

       Based on our review of the record, we conclude there were no factual

issues necessitating an evidentiary hearing in this case. The only possible

question of fact at issue would be the meaning of the sentencing court’s use

of the phrase “related cases” during the sentencing hearing. However, based

on our review of the sentencing transcript, we cannot see how the meaning of



____________________________________________


4 At Appellant’s sentencing, Judge Beloff expressly mentioned that he
considered “the presentence report that highlights your past.” Notes of
Testimony, Sentencing, 8/29/12, at 22.

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the phrase could raise a genuine issue of material fact. Moreover, in light of

the sentencing judge’s demise, a hearing would serve no purpose because it

could not establish the meaning of his words.            Regardless, it is clear the

sentencing court considered all relevant factors when formulating Appellant’s

sentence, including Appellant’s juvenile record as set forth in the presentence

investigation report. Therefore, reference to and consideration of Appellant’s

entire record was appropriate.

       Based on our review, we conclude the PCRA court did not abuse its

discretion by denying Appellant’s requested relief without an evidentiary

hearing. Appellant’s first issue fails for lack of merit.

       Appellant next claims the PCRA court erred in not finding trial counsel

ineffective “for failing to object to the judge using unadjudicated offenses”

when imposing Appellant’s sentence.            Appellant’s Brief at 17. As our above

discussion establishes, the sentencing court properly considered all factors

when imposing Appellant’s sentence.5

       In Commonwealth v. Spotz, 896 A.2d 1191 (Pa. 2006), our Supreme

Court explained:

       To demonstrate ineffective assistance of counsel, a PCRA
       petitioner must show: (1) that the underlying claim is of arguable
       merit; (2) that counsel had no reasonable strategic basis for his
       or her action or inaction; and (3) that, but for the errors and
       omissions of counsel, there is a reasonable probability that the
____________________________________________


5 We note that this Court rejected Appellant’s assertion on direct appeal that
the court imposed an unreasonable and excessive sentence.                 See
Commonwealth v. Thomas, No 335 EDA 2013, supra 22-32.


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      outcome of the proceedings would have been different.
      Commonwealth v. Pierce, 567 Pa. 186, 786 A.2d 203, 213
      (2001). Counsel will not be deemed ineffective for failing to raise
      a meritless claim. Commonwealh v. Tilley, 566 Pa. 312, 780
      A.2d 649 (2001).

Id. at 1209-10. Because there is no merit to Appellant’s argument regarding

the sentencing court’s reference to or consideration of “related cases,” counsel

cannot be deemed ineffective for failing to object.     Therefore, Appellant’s

second issue fails.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/31/19




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