J-S18009-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

MICHAEL BLACK

                            Appellant                  No. 2586 EDA 2016


                    Appeal from the PCRA Order July 7, 2016
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0010501-2011


BEFORE: PANELLA, J., SOLANO, J., and FITZGERALD*, J.

MEMORANDUM BY PANELLA, J.                              FILED APRIL 17, 2017

        Appellant, Michael Black, appeals from the order denying his timely

petition for relief pursuant to the Post Conviction Relief Act (“PCRA”), 42

Pa.C.S.A. §§ 9541-9546. We affirm.

        The relevant facts and procedural history of this case are as follows. In

July 2006, Appellant and Christopher Wright were involved in a violent

shootout over drug sales. One month later, Appellant waited at a

Philadelphia intersection where he shot and killed Wright as Wright was

stopped in his car at a red light. Appellant was apprehended in 2011, and

charged with murder, firearms not to be carried without a license, carrying

firearms on public streets or public property in Philadelphia, possessing
____________________________________________


*
    Former Justice specially assigned to the Superior Court.
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instruments of crime, and recklessly endangering another person.1 After

litigating a motion to exclude testimony from Mark Brown, a Commonwealth

witness who was deported to Jamaica, Appellant accepted an open guilty

plea to murder in the third degree. In exchange, the Commonwealth agreed

to drop all other charges, including murder in the first degree. The court

ordered a presentence investigation, and ultimately sentenced Appellant to

15 to 30 years’ incarceration. Appellant filed a motion for reconsideration of

his sentence, and the court imposed a new sentence of 13½ to 27 years’

incarceration on January 21, 2014.

        Appellant did not file a direct appeal, but instead filed a timely pro se

PCRA petition on February 13, 2015. The PCRA court appointed counsel, who

filed an amended petition. The court held a hearing on that petition, which

sought reinstatement of Appellant’s direct appeal rights nunc pro tunc. The

court denied the request for reinstatement of Appellant’s direct appeal

rights, but permitted counsel to file a supplemental petition. After counsel

did so, the court subsequently filed a notice of intent to dismiss the petition

without a hearing, pursuant to Pa.R.Crim.P. 907. The court entered a final

order on July 7, 2016, dismissing Appellant’s petition. This timely appeal

followed.

        On appeal, Appellant’s argument centers on plea counsel’s purported


____________________________________________


1
    18 Pa.C.S.A. §§ 2502, 6106, 6108, 907, and 2705, respectively.



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ineffectiveness. Appellant asserts he asked counsel to file a notice of appeal,

and counsel failed to do so. He claims counsel failed to inform him of Mark

Brown’s   unavailability   and   the   importance   of   his   testimony   to   the

Commonwealth’s case, and that this oversight created grounds for appeal.

Appellant concludes this Court should remand his case to the PCRA court for

a full evidentiary hearing on this issue. We disagree.

      When assessing an order dismissing a petition under the PCRA, our

Court’s standard of review is whether the PCRA court’s determination is

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

Commonwealth v. Halley, 870 A.2d 795, 799 n.2 (Pa. 2005). The PCRA

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

findings in the certified record. See Commonwealth v. Carr, 768 A.2d

1164, 1166 (Pa. Super. 2001). Moreover, a PCRA court may decline to hold

a hearing on the petition if the PCRA court determines that the petitioner’s

claim is patently frivolous and is without a trace of support either in the

record or from other evidence. See Commonwealth v. Jordan, 772 A.2d

1011, 1014 (Pa. Super. 2001).

      Counsel is presumed to be effective, and Appellant has the burden of

proving otherwise. See Commonwealth v. Pond, 846 A.2d 699, 708 (Pa.

Super. 2004).

      In order for Appellant to prevail on a claim of ineffective
      assistance of counsel, he must show, by a preponderance of the
      evidence, 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

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      innocence could have taken place. Appellant must demonstrate:
      (1) the underlying claim is of arguable merit; (2) that counsel
      had no reasonable strategic basis for his or her action or
      inaction; and (3) but for the errors and omissions of counsel,
      there is a reasonable probability that the outcome of the
      proceedings would have been different. The petitioner bears the
      burden of proving all three prongs of the test.

Commonwealth v. Johnson, 868 A.2d 1278, 1281 (Pa. Super. 2005)

(citations omitted). In assessing a claim of ineffectiveness, when it is clear

that appellant has failed to meet the prejudice prong, the court may dispose

of the claim on that basis alone, without a determination of whether the first

two prongs have been met. See Commonwealth v. Travaglia, 661 A.2d

352, 357 (Pa. 1995). Counsel cannot be deemed ineffective for failing to

pursue a meritless claim. See Commonwealth v. Loner, 836 A.2d 125,

132 (Pa. Super. 2003) (en banc).

      Instantly, Appellant contends counsel failed to inform him that Mark

Brown had been deported and would be unavailable to testify if Appellant

chose to go to trial. Even if we accept Appellant’s assertion that counsel

failed to discuss the matter with him personally, Appellant was present

during a hearing the court held to establish whether Mr. Brown’s prior

testimony would be admissible at trial. Appellant’s contention that the PCRA

court “refused to hold a hearing on that issue” is a half-truth at best. While

the PCRA court did choose not to hold an evidentiary hearing on Appellant’s

supplemental PCRA petition, this exact issue was fully litigated prior to

Appellant’s acceptance of the guilty plea.


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      Mr. Brown’s unavailability was also raised at several other points

during Appellant’s court proceedings, including at multiple stages during

Appellant’s plea colloquy and during sentencing. The Commonwealth noted

in its recitation of the facts that, if Appellant’s case proceeded to trial, it

would use Mr. Brown’s testimony from the preliminary hearing. See N.T.,

11/13/13, at 27-28. At sentencing, the court stated it considered the

unavailability of two of the Commonwealth’s witnesses, including Mr. Brown,

when fashioning Appellant’s sentence. See N.T., 1/13/14, at 8. The court

indicated that it reduced Appellant’s sentence because of the difficulties the

Commonwealth faced in proving Appellant’s guilt without Mr. Brown as a

witness at trial. See id., at 26. Given the repeated acknowledgements of Mr.

Brown’s unavailability at each stage of this case, the record soundly

contradicts Appellant’s claim that he was unaware of Mr. Brown’s deportation

or his significance to the case.

      Appellant’s issue therefore lacks arguable merit. See Johnson, 868

A.2d at 1281. We cannot find Appellant’s plea counsel was ineffective; thus,

the PCRA court properly declined to hold a hearing on this issue. See

Jordan, 772 A.2d at 1014. Accordingly, we affirm the PCRA court’s order

dismissing Appellant’s PCRA petition.

      Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/17/2017




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