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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                           Appellee

                      v.

CHARLES MATTHEW SHAFFER

                           Appellant                 No. 1059 MDA 2015


                  Appeal from the PCRA Order June 5, 2015
             In the Court of Common Pleas of Lycoming County
            Criminal Division at No(s): CP-41-CR-0001686-2012


BEFORE: PANELLA, J., LAZARUS, J., and JENKINS, J.

MEMORANDUM BY PANELLA, J.                            FILED MARCH 21, 2016

      Appellant, Charles Matthew Shaffer, appeals from the order dismissing

his petition pursuant to the Post Conviction Relief Act (“PCRA”) without a

hearing. Shaffer raises twelve issues based upon his claims that his trial

counsel was ineffective. After careful review, we conclude that none of

Shaffer’s claims have merit, and therefore affirm.

      A jury convicted Shaffer of attempted rape, attempted involuntary

deviate sexual intercourse, and indecent assault, based upon allegations that

he had attempted to forcibly rape an ex-girlfriend in his home. On November

14, 2013, the trial court sentenced Shaffer to an aggregate term of

imprisonment of 10 to 20 years. Shaffer did not file post-sentence motions

or a direct appeal.
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       On November 6, 2014, Shaffer filed a pro se PCRA petition. Counsel

was appointed to represent him,1 and counsel filed an amended petition. The

PCRA court subsequently entered a notice of its intent to dismiss the

amended petition without a hearing. Shaffer filed a counseled response,

however the PCRA court entered an order dismissing his petition without a

hearing on June 5, 2015. This timely appeal followed.

       On appeal, Shaffer contends that the PCRA court committed twelve

separate errors when it concluded that trial counsel was not ineffective

without a hearing. These twelve allegations of error are grouped into six

separate argument sections. We will address the issues as Shaffer has

chosen to organize them in his argument.

       “On appeal from the denial of PCRA relief, our standard and scope of

review is limited to determining whether the PCRA court’s findings are

supported by the record and without legal error.”       Commonwealth v.

Edmiston, 65 A.3d 339, 345 (Pa. 2013) (citation omitted), cert. denied,

Edmiston v. Pennsylvania, 134 S. Ct. 639 (2013). “[Our] scope of review

is limited to the findings of the PCRA court and the evidence of record,
____________________________________________


1
 The certified record is not clear regarding when counsel was appointed. An
order dated November 14, 2014, setting a PCRA conference date for
December 11, 2014, is copied to Shaffer, but left blank the section for
appointment of counsel. On December 12, 2014, the trial court entered an
order directing Shaffer to file an amended petition within 30 days that is
copied to counsel. Shaffer subsequently filed a pro se amended petition,
which was followed by a counseled amended petition, and several
subsequent amendments to append exhibits to the petition.



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viewed in the light most favorable to the prevailing party at the PCRA court

level.” Commonwealth v. Koehler, 36 A.3d 121, 131 (Pa. 2012) (citation

omitted).

      “[T]his Court applies a de novo standard of review to the PCRA court’s

legal conclusions.” Commonwealth v. Spotz, 18 A.3d 244, 259 (Pa. 2011)

(citation omitted). In order to be eligible for PCRA relief, a petitioner must

plead and prove by a preponderance of the evidence that his conviction or

sentence arose from one or more of the errors listed at 42 Pa.C.S.A.

§ 9543(a)(2). These issues must be neither previously litigated nor waived.

See 42 Pa.C.S.A. § 9543(a)(3).

      It is well settled that

      [t]o plead and prove ineffective assistance of counsel a
      petitioner must establish: (1) that the underlying issue has
      arguable merit; (2) counsel’s actions lacked an objective
      reasonable basis; and (3) actual prejudice resulted from
      counsel's act or failure to act.

Commonwealth v. Rykard, 55 A.3d 1177, 1189-1190 (Pa. Super. 2012),

appeal denied, 64 A.3d 631 (Pa. 2013) (citation omitted). “Generally, where

matters of strategy and tactics are concerned, counsel’s assistance is

deemed constitutionally effective if he chose a particular course that had

some reasonable basis designed to effectuate his client’s interests.”

Commonwealth v. Colavita, 993 A.2d 874, 887 (Pa. 2010) (citation

omitted). A failure to satisfy any prong of the test will require rejection of

the claim. See Commonwealth v. Spotz, 84 A.3d 294, 311 (Pa. 2014).


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      The right to an evidentiary hearing on a post-conviction petition is not

absolute. See Commonwealth v. Jordan, 772 A.2d 1011, 1014 (Pa.

Super. 2001). It is within the PCRA court’s discretion to decline to hold a

hearing if the petitioner’s claim is patently frivolous and has no support

either in the record or other evidence. See id. It is the responsibility of the

reviewing court on appeal to examine each issue raised in the PCRA petition

in light of the record certified before it in order to determine if the PCRA

court erred in its determination that there were no genuine issues of

material fact in controversy and in denying relief without conducting an

evidentiary hearing. See Commonwealth v. Hardcastle, 701 A.2d 541,

542-543 (Pa. 1997).     In “ineffectiveness claims in particular, if the record

reflects that the underlying issue is of no arguable merit or no prejudice

resulted,   no   evidentiary   hearing   is   required.”   Commonwealth      v.

Bauhammers, 92 A.3d 708, 726-727 (Pa. 2014) (citation omitted).

“Prejudice is established if there is a reasonable probability that, but for

counsel’s errors, the result of the proceeding would have been different. A

reasonable probability is a probability sufficient to undermine confidence in

the outcome.” Commonwealth v. Stewart, 84 A.3d 701, 707 (Pa. Super.

2013) (citations and internal quotation marks omitted). We review a PCRA

court’s decision to deny a claim without a hearing for an abuse of discretion.

See id.




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      Shaffer’s first category of argument concerns trial counsel’s actions

regarding the victim’s mental health. Shaffer argues that trial counsel was

ineffective for failing to question the victim about her mental health and for

failing to retain an expert to opine on the issue of the victim’s mental health.

Initially, we note that, outside of his own allegations, Shaffer has failed to

establish   that   the   victim   suffered   from   any   mental   health   issues.

Furthermore, there is no evidence of record, through expert opinion or

otherwise, establishing the relevance of the victim’s mental health to the

issues at trial. We therefore conclude that Shaffer has failed to establish that

this claim has arguable merit, and therefore the PCRA court did not abuse its

discretion in dismissing these claims without a hearing.

      Next, Shaffer contends that trial counsel was ineffective by failing to

communicate with him prior to trial. In particular, he contends that if trial

counsel had communicated with him, trial counsel would have been aware of

issues raised during a protection from abuse (“PFA”) hearing between

Shaffer and the victim. There is no transcript of this PFA hearing, nor any

reference to it at all outside of Shaffer’s allegations, in the certified record.

As such, Shaffer has failed to establish any arguable merit to the claim that

the PFA hearings were relevant to the criminal charges against him. We

therefore conclude that the PCRA court did not abuse its discretion, and

Shaffer is due no relief on this argument.




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      In his third category of allegations, Shaffer complains that trial counsel

convinced him not to testify at trial as she advised him that his prior

convictions could be used against him if he did. Shaffer now contends that

this advice was incorrect. After reviewing the certification of PCRA counsel

attached as an exhibit to the amended petition, we disagree.

      Generally, certain crimes involving dishonesty or false statement,

whether the result of a guilty verdict, plea, or nolo contendere, may be

admitted for the purpose of attacking the credibility of a witness. See

Pa.R.E. 609(a). However, when the conviction is more than ten years old, it

is admissible only after a determination by the trial court that the probative

value of the conviction substantially outweighs its prejudicial effect. See

Pa.R.E. 609(b).

      Here, counsel’s certification indicated an unknown disposition for theft

in 2003, an unknown disposition for burglary in 2003, and an unknown

disposition for vehicle theft in 2006. Shaffer argues that it was the

Commonwealth’s burden to establish the disposition of these charges. While

this may have been true at trial, in collateral proceedings under the PCRA, it

is the petitioner’s burden to establish his claims. Since the certification does

not establish that these convictions would have been inadmissible at trial,

Shaffer has failed to meet his burden to establish arguable merit. We

therefore conclude that the PCRA court did not abuse its discretion in

dismissing this claim without a hearing.


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      Next, Shaffer raises four arguments based upon his belief that trial

counsel did not adequately cross-examine the victim. First, he reiterates his

complaints about the PFA hearing. As before, this argument fails due to the

fact that the transcript has not been made part of the record. Second, he

argues that trial counsel was ineffective for failing to question the victim

regarding her testimony at the preliminary hearing. This transcript is not in

the certified record either, and therefore this argument fails as well.

Shaffer’s third argument in this category is that trial counsel should have

questioned the victim about her delay in filing a PFA petition. Once again,

Shaffer has failed to produce any document, other than his own allegations,

regarding the PFA proceeding, let alone that there was any delay in the

initiation of such proceedings. Thus, this claim also fails. In his fourth claim

in this category, Shaffer argues that trial counsel was ineffective in failing to

question the victim about the lack of bruises or marks on her body after the

incident. Returning to a common theme, there is no indication in the record,

other than Shaffer’s allegations, about the victim’s injuries or lack thereof.

Without some indication that there was objective evidence of the victim’s

status after the incident, the PCRA court correctly ruled that Shaffer had

failed to raise a triable issue. Shaffer’s fourth category of alleged errors

therefore merits no relief.

      In his fifth argument, Shaffer alleges that trial counsel had a personal

animosity towards him. He thus contends that his allegations of trial counsel


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error, when combined with this personal animus, constitute abandonment by

counsel. However, we have already concluded that Shaffer failed to meet his

threshold burden of establishing arguable merit in his allegations of trial

counsel ineffectiveness. As such, Shaffer cannot establish that the presence

of any personal animosity between Shaffer and trial counsel led to any

prejudice. We therefore conclude that the PCRA court did not abuse its

discretion in dismissing this claim.

      In his sixth and final category of alleged error, Shaffer claims that trial

counsel was ineffective in failing to call witnesses that Shaffer desired to

have testify at trial. Trial counsel will not be deemed ineffective for failing to

call a witness to testify unless it is demonstrated that

      (1) the witness existed; (2) the witness was available; (3)
      counsel knew of, or should have known of the existence of the
      witness; (4) the witness was willing to testify for the defense;
      and (5) the absence of the testimony was so prejudicial to
      petitioner to have denied him or her a fair trial.

Commonwealth v. Brown, 18 A.3d 1147, 1160-1161 (Pa. Super. 2011)

(citation omitted).

      Herein, Shaffer does not establish the identity of any witnesses, their

availability at the time of trial, or the substance of the witnesses’ testimony.

Without this necessary evidence we are unable to conclude that the absence

of the testimony was so prejudicial to petitioner to have denied him a fair

trial. Accordingly, we cannot conclude that the PCRA court abused its

discretion in dismissing this claim without a hearing.



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     As we conclude that none of Shaffer’s claims on appeal merit relief, we

affirm the order dismissing his PCRA petition without a hearing.

     Order affirmed. Jurisdiction relinquished.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/21/2016




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