J-S75001-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                            Appellee

                       v.

GERALD W. BERCH

                            Appellant              No. 1617 EDA 2012


                   Appeal from the PCRA Order May 9, 2012
             In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0404442-1998,
                           CP-51-CR-0404702-1998


BEFORE: ALLEN, J., LAZARUS, J., and MUNDY, J.

MEMORANDUM BY LAZARUS, J.:                     FILED FEBRUARY 02, 2015

       Gerald W. Berch appeals from the order, entered in the Court of

Common Pleas of Philadelphia County, denying his petition filed under the

Post Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546 (“PCRA”). We affirm.

       Berch was convicted by a jury in February 20001 of two counts of

robbery, two violations of the Uniform Firearms Act (“VUFA”), possession of

instruments of crime (“PIC”), and criminal conspiracy.   On April 10, 2000,

Berch was sentenced to an aggregate term of 36 to 72 years’ imprisonment.

His judgment of sentence was affirmed by this Court on May 16, 2001. A

substantial amount of procedural history followed, which is not relevant

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1
 This was Berch’s second trial in this case. His initial judgment of sentence
was reversed on appeal to this Court.
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here.    The instant petition, filed by court-appointed counsel on September

28, 2011, alleged that trial counsel rendered ineffective assistance by

dissuading Berch from testifying on his own behalf.       On May 9, 2012, the

PCRA court dismissed the petition without a hearing, and this timely appeal

followed.

        We begin by noting that this Court’s standard of review regarding an

order dismissing a PCRA petition is whether the determination of the PCRA

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

Commonwealth v. Burkett, 5 A.3d 1260, 1267 (Pa. Super. 2010)

(citations omitted).      In evaluating a PCRA court’s decision, our scope of

review is limited to the findings of the PCRA court2 and the evidence of

record, viewed in the light most favorable to the prevailing party at the trial

level. Id. We may affirm a PCRA court’s decision on any grounds if it is

supported by the record. Id.

        On appeal, Berch again claims that trial counsel was ineffective for

failing to call him to testify at trial. On a claim of ineffective assistance of

counsel,

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2
  We note that our review is somewhat hampered by the absence of an
opinion written by the PCRA court in support of its decision. A review of the
lower court docket indicates that no opinion was filed because the PCRA
judge is no longer on the bench. Despite this fact, however, we believe the
record as it exists is sufficient to enable us to address Berch’s single claim on
the merits.



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     a PCRA petitioner will be granted relief only when he proves, by
     a preponderance of the evidence, that his conviction or sentence
     resulted from the ineffective assistance of counsel which, in the
     circumstances of the particular case, so undermined the truth-
     determining process that no reliable adjudication of guilt or
     innocence could have taken place.           Counsel is presumed
     effective, and to rebut that presumption, the PCRA petitioner
     must demonstrate that counsel’s performance was deficient and
     that such deficiency prejudiced him. In Pennsylvania, we have
     refined the Strickland [v. Washington, 466 U.S. 668 (1984)]
     performance and prejudice test into a three-part inquiry. Thus,
     to prove counsel ineffective, the petitioner must show that: (1)
     his underlying claim is of arguable merit; (2) counsel had no
     reasonable basis for his action or inaction; and (3) the petitioner
     suffered actual prejudice as a result. If a petitioner fails to prove
     any of these prongs, his claim fails.         Generally, counsel’s
     assistance is deemed constitutionally effective if he chose a
     particular course of conduct that had some reasonable basis
     designed to effectuate his client’s interests. Where matters of
     strategy and tactics are concerned, a finding that a chosen
     strategy lacked a reasonable basis is not warranted unless it can
     be concluded that an alternative not chosen offered a potential
     for success substantially greater than the course actually
     pursued. To demonstrate prejudice, the petitioner must show
     that there is a reasonable probability that, but for counsel’s
     unprofessional errors, the result of the proceedings would have
     been different. A reasonable probability is a probability that is
     sufficient to undermine confidence in the outcome of the
     proceeding.

Commonwealth v. Spotz, 84 A.3d 294, 311-12 (Pa. 2014) (internal

citations and punctuation omitted).

     A defendant [raising a claim of ineffective assistance of counsel]
     is required to show actual prejudice; that is, that counsel’s
     ineffectiveness was of such magnitude that it could have
     reasonably had an adverse effect on the outcome of the
     proceedings. This standard is different from the harmless error
     analysis that is typically applied when determining whether the
     trial court erred in taking or failing to take certain action. The
     harmless error standard [. . .] states that “whenever there is a
     ‘reasonable possibility’ that an error ‘might have contributed to
     the conviction,’ the error is not harmless." This standard, which

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      places the burden on the Commonwealth to show that the error
      did not contribute to the verdict beyond a reasonable doubt, is a
      lesser standard than the [Commonwealth v.] Pierce[,527 A.2d
      973 (Pa. 1987)] prejudice standard, which requires the
      defendant to show that counsel’s conduct had an actual adverse
      effect on the outcome of the proceedings.           This distinction
      appropriately arises from the difference between a direct attack
      on error occurring at trial and a collateral attack on the
      stewardship of counsel. In a collateral attack, we first presume
      that counsel is effective, and that not every error by counsel can
      or will result in a constitutional violation of a defendant’s Sixth
      Amendment right to counsel.

Commonwealth v. Charleston, 94 A.3d 1012, 1019-20 (Pa. Super. 2014)

(internal citations and punctuation omitted).

      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 call the appellant to the stand, 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. Uderra, 706 A.2d 334, 340 (Pa. 1998) (internal

citations and quotation marks omitted).

      Here, Berch claimed in his PCRA petition that

      he wanted to tell his story and trial counsel refused to allow him
      to testify. Trial counsel incorrectly advised that [Berch] was
      subject to impeachment since his prior criminal record consisted
      of crimen falsi convictions. According to petitioner, trial counsel
      was in error and [Berch] was not subject to impeachment due to
      his prior criminal convictions.

Memorandum of Law in Support of PCRA Petition, 9/28/11, at 8.

      The PCRA requires a petitioner to plead and prove his claim; therefore,

the dismissal of claims is appropriate where the pleadings are insufficient to



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state a claim for post-conviction relief. Commonwealth v. Williams, 782

A.2d 517, 526 (Pa. Super. 2001).               Here, Berch’s petition provided no

information as to the exact nature of his prior criminal convictions and made

no offer to prove that they did not involve crimen falsi.3      Accordingly, there

is no basis in Berch’s pleading from which the court could have concluded

that counsel’s advice not to testify was unreasonable. In addition, Berch’s

petition does not allege 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. Uderra, supra.       Berch

does not assert that trial counsel prevented him from testifying, only that

counsel advised him against it.

       Finally, Berch does not offer to prove that there is a “reasonable

probability that, but for counsel’s unprofessional errors, the result of the

proceeding would have been different.”           Strickland, 466 U.S. at 694.   “A

reasonable probability is a probability sufficient to undermine confidence in

the outcome.”       Id.   At trial, the Commonwealth presented overwhelming

evidence of Berch’s guilt. Police testified that they found Berch asleep in a

car previously reported stolen, with the engine running, and with the

proceeds of many of the robberies and a gun in the trunk. See Trial Court


____________________________________________


3
  In his appellate brief, Berch asserts that his two prior convictions were for
carrying firearms on public streets and simple assault. However, these
crimes were not specified in his PCRA petition.



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Opinion, 11/28/03, at 1. Berch was identified by one of his victims, and also

gave a statement to police implicating himself in the robberies. Id. at 1-2.

In light of this evidence, Berch’s self-serving testimony that he was “merely

present” at the scene could have had no effect on the outcome of his trial.

Accordingly, Berch is unable to establish one of the necessary ineffectiveness

prongs and his claim must fail. Spotz, supra.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/2/2015




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