J-S10033-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                          :         PENNSYLVANIA
                   Appellee               :
                                          :
              v.                          :
                                          :
 EDWARD SCOTT,                            :
                                          :
                   Appellant              :       No. 1455 EDA 2018

                  Appeal from the PCRA Order April 6, 2018
            In the Court of Common Pleas of Philadelphia County
            Criminal Division at No(s): CP-51-CR-0006350-2011


BEFORE:    GANTMAN, P.J.E., STABILE, J., and COLINS*, J.

MEMORANDUM BY GANTMAN, P.J.E.:                       FILED APRIL 15, 2019

      Appellant, Edward Scott, appeals from the order entered in the

Philadelphia County Court of Common Pleas, which denied his first petition

filed under the Post Conviction Relief Act (“PCRA”), at 42 Pa.C.S.A. §§ 9541-

9546. We affirm.

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

May 18, 2011, Appellant and an accomplice robbed Victim at gunpoint, and

Appellant fled the scene in Victim’s vehicle. A jury convicted Appellant on

February 7, 2013, of one count each of robbery, conspiracy to commit

robbery, robbery of a motor vehicle, and possession of an instrument of crime.

On July 2, 2013, the court sentenced Appellant to an aggregate term of ten

(10) to twenty (20) years’ incarceration, plus ten (10) years’ probation. The

sentence included a mandatory minimum sentence under 42 Pa.C.S.A. § 9714


____________________________________
* Retired Senior Judge assigned to the Superior Court.
J-S10033-19


(governing sentences for second and subsequent offenses).

      This Court affirmed the judgment of sentence on July 29, 2015, and our

Supreme Court denied allowance of appeal on December 1, 2015.             See

Commonwealth v. Scott, 125 A.3d 464 (Pa.Super. 2015) (unpublished

memorandum), appeal denied, 633 Pa. 778, 126 A.3d 1284 (2015).

      On February 26, 2016, Appellant filed pro se his first PCRA petition. The

PCRA court appointed counsel, who filed an amended petition on November

23, 2016. Following a hearing on March 24, 2017, the court issued notice of

its intent to dismiss Appellant’s petition, per Pa.R.Crim.P. 907. On April 10,

2017, despite having counsel, Appellant filed a pro se motion for an extension

of time to respond to the Rule 907 notice, which the court granted. On August

10, 2017, Appellant filed his pro se response. Appellant’s counsel also filed a

response to the Rule 907 notice on March 20, 2018. The PCRA court dismissed

Appellant’s petition on April 6, 2018, and on April 13, 2018, Appellant filed a

timely notice of appeal. The court did not order Appellant to file a concise

statement of errors complained of on appeal, pursuant to Pa.R.A.P. 1925(b),

and Appellant did not file one.

      Appellant raises the following issue for our review:

         WAS COUNSEL INEFFECTIVE FOR FAILING TO RAISE THE
         ISSUE OF…APPELLANT’S BEING SUBJECT TO AN ILLEGAL
         MANDATORY MINIMUM SENTENCE?

(Appellant’s Brief at 9).

      Our standard of review of the denial of a PCRA petition is limited to


                                     -2-
J-S10033-19


examining whether the evidence of record supports the court’s determination

and whether its decision is free of legal error. Commonwealth v. Conway,

14 A.3d 101 (Pa.Super. 2011), appeal denied, 612 Pa. 687, 29 A.3d 795

(2011). This Court grants great deference to the findings of the PCRA court if

the record contains any support for those findings. Commonwealth v. Boyd,

923 A.2d 513 (Pa.Super. 2007), appeal denied, 593 Pa. 754, 932 A.2d 74

(2007). We do not give the same deference, however, to the court’s legal

conclusions.   Commonwealth v. Ford, 44 A.3d 1190 (Pa.Super. 2012).

Traditionally, credibility issues are resolved by the trier of fact who had the

opportunity to observe the witnesses’ demeanor. Commonwealth v. Abu-

Jamal, 553 Pa. 485, 720 A.2d 79 (1998), cert. denied, 528 U.S. 810, 120

S.Ct. 41, 145 L.Ed.2d 38 (1999). “A PCRA court passes on witness credibility

at PCRA hearings, and its credibility determinations should be provided great

deference by reviewing courts.” Commonwealth v. Johnson, 600 Pa. 329,

356-357, 966 A.2d 523, 539 (2009).

      After a thorough review of the record, the briefs of the parties, the

applicable law, and the well-reasoned opinion of the Honorable Daniel J.

Anders, we conclude Appellant’s issue merits no relief. The PCRA court opinion

comprehensively discusses and properly disposes of the question presented.

(See PCRA Court Opinion, filed May 25, 2018, at 2-6) (finding: prior

convictions are sentencing factors, not elements of offenses; when Appellant

committed underlying offense, he had prior conviction for voluntary


                                     -3-
J-S10033-19


manslaughter, another crime of violence; therefore, sentence imposed under

42 Pa.C.S.A. § 9714 was not unconstitutional, and his ineffectiveness claim

lacks arguable merit).    The record supports the PCRA court’s decision.

Accordingly, we affirm based on the PCRA court opinion.

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/15/19




                                   -4-
                                                                                            Circulated 03/20/2019 04:46 PM




          IN THE COURT OF COMMON PLEAS OF PHILADELPHIA
                        FIRST JUDICIAL DISTRICT OF PENNSYLVANIA
                                                                                                               I   L -ED
                                TRIAL DIVISION-CRIMINAL

COMMONWEALTH OF PENNSYLVANIA                                      1455 EDA 2018               OFFICE OF JUDICIAL
                                                                                                                 RECORDS
                                                                                                     CRIMINAL DIVISION

VS.                                                              CP-51-CR-006350
                                                                CP-51-CRA006350-2011 Comm. v.Scott, Edward
                                                                                                           K



EDWARD SCOTT

                                                OPINION              1111111111111111 1111 1 111
                                                                           8114537561

       Defendant Edward Scott was convicted of robbery, conspiracy to commit robbery of a

motor vehicle and possession of an instrument of crime, He was sentenced to 10 to 20 years of

incarceration, Defendant challenged his judgment of sentence on a direct appeal, which the

Superior Court affirmed. Commonwealth v. Edward Scott, 2286 EDA 2013, filed July 29, 2015.

       On February 26, 2016, Defendant filed a timely petition pursuant to the Post Conviction

Relief Act ("PCRA"), 42 Pa.C.S.      §   9541, et seq.; court -appointed counsel subsequently filed an

amended PRCA petition. The PCRA court dismissed Defendant's PRCA petitions as without

merit. For the reasons stated herein, the Superior Court should affirm the PCRA court's order

dismissing Defendant's PCRA petitions.

FACTUAL AND PROCEDURAL BACKGROUND

                                                                                     the
       On May 18, 2011, Defendant and his co-defendant approached William Jackson on

1300 block   of Narragansett Street in Philadelphia. The co-defendant pulled out a black and silver
                                                                                        to get
semi -automatic handgun and pointed it in Jackson's face. The co-defendant told Jackson

on the ground,   Lay   face -down on his stomach, and hand over his money; Jackson complied, The

co-defendant then put the gun to the center of the back of Jackson's head. As the co-defendant
                                                                                         a
did this, Defendant was standing directly behind Williams. The co-defendant then removed

wallet from Jackson's back pocket, and told Defendant to jump into Jackson's vehicle and drive

off.
                                                      1
                                                                      co-defendant and his
       Jackson called 911 and provided descriptions of Defendant, the
                                                                     stopped Defendant, who was
vehicle in which Defendant drove off. Minutes later, police officers
                                                                   Police brought Jackson to
observed walking away from the driver's side of Jackson's vehicle.
                                                                  identified Defendant based
Defendant to make an on -scene identification. Jackson positively
                                                                           testified that he had no
upon his face, skin color, height, stature and clothing. At trial, Jackson
                                                               stole his vehicle.   See   generally
doubt that he correctly identified Defendant as the person who

Trial Court Opinion, October 16, 2014 at 1-4.
                                                                          which the Superior
        Defendant challenged his judgment of sentence on a direct appeal,

Court affirmed. Commonwealth      v.   Edward Scott, 2286 EDA 2013, filed July 29, 2015. On

                                                                 -appointed counsel
February 26, 2016, Defendant filed a timely PCRA petition. Court
                                                            2016.
subsequently filed an amended PRCA petition on November 23,
                                                                        PCRA petitions,
        On March 24, 2017. the PCRA court held a hearing on Defendant's

                                                                  and issued         a   Rule 907
during which it concluded that his PCRA claims were without merit
                                                           time to file a response to the Rule 907
 Notice. On April 10, 2017, Defendant requested additional

                                                           the Rule 907 Notice. On March 20,
 Notice. On August 10, 2017, Defendant filed objections to
                                                                       objections. On April 6,
 2018, court -appointed counsel filed a letter response to Defendant's
                                                     PCRA claims as without merit.
 2018, the PCRA court formally dismissed Defendant's

 Defendant then filed this timely appeal.

 DISCUSSION
                                                       court erred in dismissing his claims as
         On appeal, Defendant will argue that the PCRA
                                                             failing to (1) raise the constitutionality of
 without merit because his trial counsel was ineffective for
                                                        pursuant to Pa.R.Crim.P. 600(g), (3)
 a mandatory sentence, (2) litigate a motion to dismiss

                                                           and (4) properly advise Defendant of his right
  interview, investigate and call several alibi witnesses,


                                                     2
to testify at trial. Defendant's Amended PCRA Petition, dated 11/23/2016, and
                                                                              Defendant's

Response and Objections to Rule 907 Notice, dated 8/10/2017.

       1.     The Standard of Review of Claims of Ineffectiveness in PCRA Petitions

       In Commonwealth v. C'ax, 983 A.2d 666 (Pa. 2009), our Supreme Court set forth the

standards governing claims brought pursuant to the PCRA alleging ineffective assistance
                                                                                        of

counsel:

              Under the PCRA, collateral relief is afforded to individuals who
              prove that they are innocent of the crimes of which they were
              convicted, and those receiving illegal sentences. 42 Pa.C.S. § 9542.
              "A petitioner is eligible for PCRA relief only when he proves by a
              preponderance of the evidence that his conviction or sentence resulted
              from one or more of the circumstances delineated in 42 Pa.C.S. §
              9543(a)(2)." Commonwealth v. Natividad, 938 A.2d 310, 320 (Pa.
              2007). One of the grounds enumerated in 42 Pa.C.S § 9542(a)(2)
              involves claims alleging ineffective assistance of counsel. Thus, the
              PCRA provides relief to those individuals whose convictions or
              sentences "resulted from 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." 42 Pa.C.S. § 9542(a)(2)(ii). This Court has
              interpreted this to mean that in order to obtain relief on a claim
              alleging ineffective assistance of counsel, a petitioner must prove
              that: (1) the claim underlying the ineffectiveness claim has arguable
              merit; (2) counsel's actions lacked any reasonable basis; and (3)
              counsel's actions resulted in prejudice to petitioner. Commonwealth v.
               Collins, 957 A.2d 237 (Pa. 2008); Commonwealth v. Pierce, 527 A.2d
              973 (Pa. 1987). A chosen strategy will not be found to have lacked a
               reasonable basis unless it is proven 'that an alternative not chosen
               offered a potential for success substantially greater than the course
               actually pursued." Commonwealth v. Williams, 899 A.2d 1060, 1064
               (Pa. 2006) (quoting Commonwealth v. Howard, 719 A.2d 233, 237
               (Pa. 1998)). "Prejudice in the context of ineffective assistance of
               counsel means demonstrating that there is a reasonable probability
               that, but for counsel's error, the outcome of the proceeding would
               have been different." Commonwealth v. Pierce, 786 A.2d 203, 213
               (Pa. 2001); Strickland v. Washington, 466 U.S. 668, 694 (1984).
               Finally, the law presumes that counsel was effective and the burden
               of proving that this presumption is false rests with the petitioner.
               Commonwealth v. Basemore, 744 A.2d 717, 728 n.10 (Pa. 2000).

 Cox, 983 A.2d at 678.
                                                3
                                                                      the defendant to show that
       "Prejudice," as articulated in Strickland and Pierce, requires

"trial counsel's omission had an actual adverse effect on the outcome
                                                                      of the proceedings such

that [Defendant] is entitled to   anew trial." Commonwealth v. Spotz, 84 A.3d 294, 317 (Pa. 2014);

Commonwealth     v.   Gribble, 863 A.2d 455, 472 (Pa, 2004). The Pennsylvania Supreme Court

clarified the standard of proof required to establish prejudice in   a    PCRA proceeding and

distinguished it from the harmless error standard on direct appeal:

                [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.' Pierce, 527 A.2d at 977.
                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, as
                                                                                       164
                set forth by this Court in Commonwealth v. Story, 383 A.2d [155],
                [(Pa. 1978)] (citations omitted), states that "[w]henever there  is a
                 `reasonable possibility' that an error 'might have contributed to the
                 conviction,' the error is not harmless." This standard, which 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
                Pierce prejudice standard...."

Spot; 84 A.3d at 315 (emphasis added). Thus,       to establish the requisite prejudice in a PCRA

                                                                        that, but for counsel's
 proceeding, the defendant "must show there is a reasonable probability
                                                                        Id. at 320-21.
 error or omission, the result of the proceeding would have different."
                                                                             is "whether the findings
         The standard of review for an appeal from the denial of PCRA relief
                                                                         Commonwealth               Gwynn,
 of the PCRA court are supported by the record and free of legal error."
                                                                                                v



 943 A.2d 940, 944 (Pa. 2008). "The level of deference
                                                       accorded to the post -conviction court may

                                                                          or matters of applying the
 vary depending upon whether the decision involved matters of credibility

 governing law to the facts as so determined." C'orinnonwealth       v.   Williams, 950 A.2d 294, 299 (Pa.

                                                              to deference, but its legal conclusions
 2008). "The PCRA court's factual determinations are entitled

  are subject to plenary review." Commonwealth.     v.   Gorby, 900 A.2d 346, 363 (Pa. 2006).


                                                     4
                                                                      if: (1) the petition is
       Finally, a judge may dismiss a PCRA petition without a hearing
                                                                 facts alleged therein would not,
patently frivolous and without support in the record; or (2) the
                                                                  907; Commonwealth          v,   Walls, 993
even if proven, entitle the defendant to relief. See Pa.R.Crim.P.

A.2d 289, 295 (Pa, Super. Ct. 2010) ("It is within the
                                                       PCRA court's discretion to decline to hold a

                                                                no support either in the record or
hearing if the petitioner's claim is patently frivolous and has
                                                                 hearing on a PCRA petition, and if
other evidence."). "There is no absolute right to an evidentiary
                                                             issues of material fact exist, then a
the PCRA court can determine from the record that no genuine

hearing is not necessary." Commonwealth        v.   Jones, 942 A.2d 903, 906 (Pa. Super. Ct, 2008).

                                                               are wholly without merit, and the
        As discussed below, Defendant's ineffectiveness claims

Superior Court should affirm the PCRA court's dismissal
                                                        of his PCRA petitions.

                                                                            Failing
        2.         Defendant's Claim That Trial Counsel Was Ineffective For
                                                                            Merit
                   To Challenge The Sentence As Unconstitutional Is Without
                                                                            to challenge the imposition
           Defendant asserts that trial counsel was ineffective for failing
                                                            sentenced Defendant pursuant to 42
 of a mandatory sentence of 10 to 20 years. The trial court
                                                                          court of this
 Pa.C.S.   §   9714(a), which states, "Any person who is convicted in any

 Commonwealth of a crime of violence shall, if at the time
                                                           of the commission of the current

 offense the person had previously been Convicted
                                                  of a crime of violence, be sentenced to a

 minimum sentence of at least ten years of total confinement."
                                                                U.S. Supreme Court held that
           Regarding mandatory minimum sentencing statutes, the
                                                             are therefore elements and must be
  any "fflacts that increase the mandatory -minimum sentence

                                                      doubt." Alleyne        v.   United States, 570 U.S.
  submitted to the jury and found beyond a reasonable
                                               A.3d 777 (Pa. Super. Ct. 2015), the Superior
  99, 108 (2013). In Commonwealth v. Reid, 117

                                               unconstitutional given the U.S. Supreme Court's
  Court considered whether Section 9714(a) was
                                                     `Alleyne did not overturn prior precedent that
  dictates of Alleyne. The Superior Court noted that

                                                        5
                                                                               784. Indeed, even in
prior convictions are sentencing factors and not elements of offenses." Id. at

Alleyne, the U.S. Supreme Court recognized that prior convictions are a
                                                                        "narrow exception" to

the general rule that the Sixth Amendment provides defendants with the
                                                                       right to have a jury find

                                                                                      U.S. at
beyond a reasonable doubt any fact that increases the mandatory minimum. Alleyne, 570

111, n.1. Given that "narrow exception," the Superior Court held that Section
                                                                              9714 was not

unconstitutional under Alleyne. Reid, 117 A.3d at 785.

        Thus, Defendant's ineffectiveness claim regarding an unconstitutional mandatory

sentence is without merit because    - at the time he committed the offense for which he was
sentenced     - he had previously been convicted of voluntary manslaughter, which qualified as
crime of violence.

        3.        Defendant's Claim That Trial Counsel Was Ineffective For
                  Failins To Litigate A Rule 600(g) Motion Is Without Merit
                                                                                                 to
        Defendant claims that his trial counsel was ineffective for failing to litigate a motion
                                                                              counsel did litigate
dismiss pursuant to Pa,R.Crim,P. 600(g). Contrary to Defendant's claim, trial
                                                                          See N.T. 02/05/2013 at
 a motion to dismiss pursuant to Pa.R,Crim.P. 600(g) on the day of trial,

                                                                             trial counsel actually
 2-9. The trial court denied the Rule 600(g) motion. Id. Because Defendant's
                                                                                          claim
 litigated the Rule 600(g) motion, the PCRA court properly dismissed this ineffectiveness

 as without merit.

         4.        Defendant's Claim That Trial Counsel Was Ineffective For Failing
                   To Interview Investigate and Call Alibi Witnesses is Without Merit

                                                                                           investigate
         Defendant claims that his trial counsel was ineffective for failing to interview,

                                                                         alibi witnesses at trial.
 and call Anthony Scott, Marcus Scott, Jabriel Buie and Nathan Sharin as

         In order to prove that trial counsel was ineffective for
                                                                  failing to call an alibi witness to

                                                                                    (2) the witness
 testify on his behalf, a defendant must demonstrate that: (1) the witness existed;

 was available    0 testify; (3) counsel   was aware of the existence of the witness, or should have
                                                       6
                                                                      ready, willing and able to
known of her existence and availability; (4) the proposed witness was
                                                                        testimony prejudiced the
testify on behalf of the defendant; and (5) the absence of the proposed

defendant. Commonwealth              v.   Johnson, 966 A.2d 523, 536 (Pa. 1999). A defendant must satisfy

                                                                                       Lopez, 739 A.2d 485, 496
all   of these elements by offers of objective proof. Commonwealth                v.


                                                                          on his claim. Id. Finally
(Pa. 1999). If the defendant fails to do so, he is not entitled to relief
                                                                        or call a witness unless there
"trial counsel will not be found ineffective for failing to investigate

is some showing by the appellant that the             witness's testimony would have been helpful to the

defense." Commonwealth              v.    Brown, 767 A.2d 576, 582 (Pa. Super. 2001) (citing Commonwealth

v.    Auker, 545 Pa. 521, 548, 681 A.2d 1305, 1319 (1996)).
                                                                                told the trial
           Here, the PCRA court properly dismissed this claim because Defendant
                                                                             to the jury other
court that he did not wish to have any witnesses or other evidence presented
                                                                  his trial counsel.' N.T.
 than Brenda Scott and that he was satisfied with the services of
                                                                   this ineffectiveness claim.
 02/06/2013 at 73-74. Therefore, the PCRA court properly dismissed

 See Commonwealth           v.   Paddy, 800 A.2d 294, 315 (Pa. 2002) (trial counsel was not ineffective

                                                                call any witnesses and did not
 where defendant was questioned by the court regarding right to
                                                               v. Hancharik, 565 A.2d 782, 784
 indicate any additional witnesses to be called); Commonwealth

 (Pa. Super. Ct. 1998) (same).

            Additionally, given the overwhelming evidence of Defendant's
                                                                         guilt                 - the strength of the
                                                             arrest as he was walking away from
  identification testimony by Jackson as well as Defendant's

  the driver's side of the stolen vehicle          - Defendant cannot prove the requisite actual prejudice to
                                                        Trial Court Opinion, October 16, 2014 at 1-
  succeed on this ineffectiveness claim. See generally,
                                                             claim is without merit.
  4. For this additional reason, Defendant's ineffectiveness




                                                    testified at trial on February 6, 2011
      Pursuant to Defendant's request, Brenda Scott
                                                               7
            5.    Defendant's Claim That Trial Counsel Was Ineffective For Failing
                 To Properly Advise Defendant Of His Right To Testify At Trial
                                                                                          him of his
       Defendant claims that trial counsel was ineffective for failing to properly advise
                                                                                      the trial court-just
right to testify at trial. This claim is contradicted by the trial transcript wherein

before the trial ended   - conducted a thorough colloquy of Defendant regarding his right to testify
on his own behalf. N.T. 02/06/2013 at 72-73. Defendant testified that
                                                                      he was aware of

                                                                                     such, the PCRA
constitutional right to testify and that he did not want to testify at trial. Id. As
                                                                                                  Willis, 68
court properly dismissed this ineffectiveness claim as without merit. Commonwealth
                                                                                            I),




A.3d 997 (Pa. Super. Ct. 2013) (PCRA court correctly rejected petitioner's
                                                                           ineffectiveness claims

                                                                         because defendant was
where the claims would contradict petitioner's statements to trial court

bound by those statements made in open court while under oath).

CONCLUSION
                                                                                  dismissal of
        Based on the foregoing, the Superior court should affirm the PCRA court's

Defendant's PCRA petitions.




 DAN EL        DERS, JUDGE
 Dated: May 25, 2018




                                                     8
Comm. v. Edward Scott
CP-51-CR-0006350-2011
1455 EDA 2018
                                        PROOF OF SERVICE

I   hereby certify that   I   am this day caused to be served the foregoing Order upon this person(s):




    Attorney for Appellant:              J. Matthew Wolfe
                                         4256 Regent Square
                                         Philadelphia, PA 19104

Type     of Service:                     Regular mail



Appellant:                               Edward Scott
                                         MT61 17
                                         SO Coal Township
                                         I Kelley Drive
                                         Coal Township, PA 17866-1020

Type of Service:                         Regular mail



    Appellee:                            Appeals Unit
                                         Philadelphia District Attorney's Office
                                         3 S. Penn Square
                                         Philadelphia, PA 19107

    Type of Service:                     CJC Mailbox


                                                           F



    DATED:                       7.0 I 2
                                                          Ra nond T. Dorizi., Esquire
                                                          Law Clerk to Hon. Daniel J. Anders
