J-S77019-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF                            :   IN THE SUPERIOR COURT OF
    PENNSYLVANIA                               :        PENNSYLVANIA
                                               :
                                               :
                v.                             :
                                               :
                                               :
    STEVE RICHARD MCCOLLUM, JR.                :
                                               :   No. 288 MDA 2017
                       Appellant

                 Appeal from the PCRA Order January 11, 2017
      In the Court of Common Pleas of Dauphin County Criminal Division at
                        No(s): CP-22-CR-0005177-2011


BEFORE:      BENDER, P.J.E., LAZARUS, J., and STEVENS*, P.J.E.

DISSENTING MEMORANDUM BY STEVENS, P.J.E.: FILED JANUARY 09, 2018

        Appellant, Steve Richard McCollum, Jr., has not met his burden of

pleading and proving that the PCRA1 court erred in failing to hold an

evidentiary hearing as to his claim that trial counsel was ineffective in advising

Appellant not to testify on his own behalf at trial. Appellant neither attached

an affidavit in support of his allegations nor explained why such an affidavit

was not attached. See Pa.R.Crim.P. 902(A)(12)(b). Thus, as I would affirm

the PCRA court’s order in its entirety,2 I respectfully dissent.

____________________________________________


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

2 To the extent the Majority suggests there is merit in Appellant’s claim that
his due process rights were violated when the PCRA court denied his motion
for an extension of time to respond to the Pa.R.Crim.P. 907 notice, I disagree.
See Commonwealth v. Bond, 630 A.2d 1281 (Pa.Super. 1993). However,
I agree with the Majority that Appellant’s remaining claims are meritless.
____________________________________
* Former Justice specially assigned to the Superior Court.
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       It is well-settled that “[t]here is no absolute right to an evidentiary

hearing on a PCRA petition, and if the PCRA court can determine from the

record that no genuine issues of material fact exist, then a hearing is not

necessary.” Commonwealth v. Jones, 942 A.2d 903, 906 (Pa.Super. 2008)

(citation omitted). In the case sub judice, the claim at issue pertains to the

ineffective assistance of counsel.        Since such a claim must meet all three

prongs of the test for ineffectiveness,3 if the PCRA court can determine without

an evidentiary hearing that one of the prongs cannot be met, then no purpose

would be advanced by holding an evidentiary hearing. See id.

       As the Majority indicates, in Commonwealth v. Nieves, 560 Pa. 529,

746 A.2d 1102 (2000), our Supreme Court delineated the following standard

to apply to claims that counsel was ineffective in advising a defendant not to

testify on his own behalf:

       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 advise the appellant of his rights in this regard, 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.


____________________________________________


3  As the Majority has cogently indicated, to prevail on a claim of
ineffectiveness, a petitioner has the burden of pleading and proving that “(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.” Commonwealth v. Sneed, 616
Pa. 1, 45 A.3d 1096, 1106 (2012) (citation omitted).

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Nieves, 746 A.2d at 1104 (internal citations omitted).

      In the instant case, the following colloquy occurred in open court at

Appellant’s jury trial:

      [TRIAL COUNSEL]: Your Honor, next to me is [Appellant].
      [Appellant], you have sat through the entire trial; is that correct?
      [APPELLANT]: Yes.
      [TRIAL COUNSEL]: And we are about to rest our defense case,
      which means that we are not going to call any additional
      witnesses. However, prior to doing that, you have the opportunity
      and you have the right to testify. Do you understand that?
      [APPELLANT]: Yes.
      [TRIAL COUNSEL]: And do you understand that the right to
      testify is your right and your right alone?
      [APPELLANT]: Yes.
      [TRIAL COUNSEL]: And that if you wanted to testify, that I could
      not stop you; [the district attorney] could not stop you; and [the
      trial judge] could not prevent you from testifying, if that is what
      your choice ultimately is.
      [APPELLANT]: Yes.
      [TRIAL COUNSEL]: Now, you and I just had a very brief
      discussion; is that correct?
      [APPELLANT]: Yes.
      [TRIAL COUNSEL]: And during our discussion I gave you—I’m
      not going to say what my advice was, but I gave you certain
      advice; is that correct?
      [APPELLANT]: Yes.
      [TRIAL COUNSEL]: Are you under the influence of any drugs or
      alcohol?
      [APPELLANT]: No, I’m not.
      [TRIAL COUNSEL]: Have there been any threats or promises
      made to you prior to you deciding whether you wish to remain
      silent or you wish to testify?
      [APPELLANT]: No.
      [TRIAL COUNSEL]: What—do you wish to testify?


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      [APPELLANT]: No, I do not.
      THE COURT: [District attorney], any questions on this colloquy?
      [DISTRIC ATTORNEY]: I don’t think there’s anything else to
      cover.
      THE COURT: [Appellant], how far did you go in school?
      [APPELLANT]: GED.
      THE COURT: Okay. Do you---
      [APPELLANT]: ’98.
      THE COURT: Do you understand, read, and write the English
      language?
      [APPELLANT]: Yes, I do.
      THE COURT: Is there anything about what [trial counsel] said to
      you or that I’m saying to you now that you don’t understand?
      [APPELLANT]: No, there isn’t.

N.T., 10/17/12, at 529-32.

      In the case sub judice, Appellant does not allege interference with his

right to testify under the first prong of the test set forth in Nieves, and indeed,

based on the aforementioned, there would be no arguable merit to such a

claim. However, Appellant claims that trial counsel’s specific advice was so

unreasonable as to vitiate a knowing and intelligent decision not to testify on

his own behalf. In this vein, he avers that trial counsel told him that, if he

testified, the Commonwealth could impeach him with his prior firearms and

aggravated assault convictions.

      Assuming, arguendo, that pursuant to Nieves, such advice, in certain

circumstances, may be erroneous, in this case there is no evidence of such

advice on the record. Simply put, although there is a reference on the record



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to trial counsel providing advice to Appellant, there is no indication on the

record as to the substance of that advice. Further, Appellant failed to provide

an affidavit from trial counsel to support his allegation as to the substance of

the advice or explain the reason for the affidavit’s absence. See Pa.R.Crim.P.

902(A)(12)(b) (PCRA petition shall contain facts supporting each ground for

relief; if supporting facts do not appear of record “affidavits, documents and

other    evidence   showing   such    facts”   to   be   identified).    See   also

Commonwealth v. Cousar, --- Pa. ---, 154 A.3d 287, 300 (2017) (“[T]his

Court has dismissed claims of ineffectiveness where [the] appellant has not

provided counsel’s affidavit; [however,] we have indicated we may overlook

the failure where [the] appellant adequately explains why he did not submit

it.”) (citation omitted)).

        Thus, here the PCRA court did not abuse its discretion in dismissing

Appellant’s claim without an evidentiary hearing.        Accordingly, as I would

affirm the PCRA court’s order in its entirety, I respectfully dissent.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/9/2018




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