J-S68040-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                           Appellee

                      v.

ANDRE HENRY

                           Appellant                   No. 73 EDA 2015


               Appeal from the PCRA Order December 2, 2014
            In the Court of Common Pleas of Philadelphia County
            Criminal Division at No(s): CP-51-CR-0012688-2007


BEFORE: BENDER, P.J.E., DONOHUE, J., and MUNDY, J.

MEMORANDUM BY MUNDY, J.:                         FILED DECEMBER 08, 2015

      Appellant, Andre Henry, appeals from the December 2, 2014 order

dismissing, without a hearing, his petition for relief filed pursuant to the Post

Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546.           After careful

review, we affirm.

      The PCRA Court has summarized the relevant facts and procedural

history as follows.

                  On October 31, 2005, while in custody on an
            unrelated matter, [Appellant] was arrested and
            charged with two counts of first degree murder in
            connection with a [sic] drug related shooting deaths
            of Sean Young and Jamallian Malloy in 1996.

                  On August 3, 2009, [Appellant] filed pre-trial
            motions, including a [m]otion to [s]uppress, before
            the Honorable Carolyn Engel Temin. Judge Temin
            held the matters under advisement pending the
            testimony presented at trial. Judge Temin ultimately
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            denied [Appellant]’s motions and, on August 6,
            2009, found [Appellant] guilty of two counts of first
            degree murder.

                  [Appellant] appealed, claiming the trial court
            erred in denying his motion to suppress recorded
            conversations he had with another inmate as well as
            statements he later made to police. On February 8,
            2011, the Superior Court affirmed [Appellant]’s
            judgment of sentence. [Commonwealth v. Henry,
            24 A.3d 447 (Pa. Super. 2011), appeal denied 26
            A.3d 482 (Pa. 2011).]            The Superior Court
            specifically rejected [Appellant]’s claim with regard
            to the recorded conversations with the other inmate
            and deemed the other suppression claim waived
            because appellate counsel failed to cite relevant
            portions of the trial transcript. On August 2, 2011,
            the Pennsylvania Supreme Court denied allocator.

                   On June 8, 2012, [Appellant] filed a pro se
            PCRA petition.      The court appointed counsel to
            represent [Appellant]. PCRA counsel thereafter filed
            an amended PCRA petition on his client’s behalf,
            alleging ineffective assistance of trial counsel.1 The
            Commonwealth filed a [m]otion to [d]ismiss.


            1
                In his amended petition, PCRA counsel noted
            discrepancies in the transcripts from [Appellant]’s
            trial and [m]otion to [s]uppress. As a result, he
            could not ascertain whether trial counsel actually
            litigated a [m]otion to [s]uppress. Trial counsel did,
            in fact, litigate a [m]otion to [s]uppress on the
            record, which the trial court denied.

PCRA Court Opinion, 2/17/15, at 1-2 (footnote in original, citations omitted).

      On October 28, 2014, the PCRA court notified Appellant pursuant to

Pennsylvania Rule of Criminal Procedure 907 of its intent to dismiss

Appellant’s petition without a hearing on the basis that Appellant’s petition

had no merit. Appellant did not file a response, and on December 2, 2014,

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the PCRA court dismissed Appellant’s PCRA petition.          On December 29,

2014, Appellant filed a timely appeal.1

       On appeal, Appellant raises the following issue for our review.

              I.   Did the Honorable PCRA Court err when it
              dismissed [Appellant]’s Amended PCRA Petition
              without granting a [h]earing even though the
              Amended Petition properly pled and where
              [Appellant] would have been able to prove that he
              was entitled to relief?

Appellant’s Brief at 3.

       When reviewing PCRA matters, we are mindful of the following

principles.

              We consider the record in the light most favorable to
              the prevailing party at the PCRA level. This review is
              limited to the evidence of record and the factual
              findings of the PCRA court.         We afford great
              deference to the factual findings of the PCRA court
              and will not disturb those findings unless they have
              no support in the record. Accordingly, as long as a
              PCRA court’s ruling is free of legal error and is
              supported by record evidence, we will not disturb its
              ruling. Nonetheless, where the issue pertains to a
              question of law, our standard of review is de novo
              and our scope of review is plenary.

Commonwealth v. Pander, 100 A.3d 626, 630 (Pa. Super. 2014) (en

banc) (internal quotation marks and citation omitted), appeal denied, 109

A.3d 679 (Pa. 2015).         Further, in order to be eligible for PCRA relief, a

petitioner must plead and prove by a preponderance of the evidence that his
____________________________________________


1
  Appellant and the PCRA court have complied with Pennsylvania Rule of
Appellate Procedure 1925.



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conviction or sentence arose from one or more of the errors listed at

Section 9543(a)(2) of the PCRA.       42 Pa.C.S.A. § 9543(a)(2).      One such

error, which provides a potential avenue for relief, is ineffective assistance of

counsel. Id. § 9543(a)(2)(ii). The issues raised must be neither previously

litigated nor waived. Id. § 9543(a)(3).

      Additionally, with regard to evidentiary hearings at the post-conviction

stage of proceedings, we observe the following.

            [T]he right to an evidentiary hearing on a post-
            conviction petition is not absolute. 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. 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 issues of material
            fact in controversy and in denying relief without
            conducting an evidentiary hearing.

Commonwealth v. Miller, 102 A.3d 988, 992 (Pa. Super. 2014) (citation

omitted). “We stress that an evidentiary hearing is not meant to function as

a fishing expedition for any possible evidence that may support some

speculative claim of ineffectiveness.” Commonwealth v. Roney, 79 A.3d

595, 604-605 (Pa. 2013) (internal quotation marks and citation omitted),

cert. denied, Roney v. Pennsylvania, 135 S. Ct 56 (2014)..                  “The

controlling factor … is the status of the substantive assertions in the petition.

Thus, as to ineffectiveness claims in particular, if the record reflects that the

underlying issue is of no arguable merit or no prejudice resulted, no

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evidentiary hearing is required.”    Commonwealth v. Baumhammers, 92

A.3d 708, 726-727 (Pa. 2014).       This Court reviews the decision to dismiss a

PCRA petition without conducting an evidentiary hearing for an abuse of

discretion. Miller, supra. Thus, we must first examine Appellant’s claim of

ineffectiveness, for if we determine that Appellant’s claim is without arguable

merit or Appellant has not established prejudice as a result of counsel’s

action or inaction, the PCRA court was not required to hold an evidentiary

hearing. See Baumhammers, supra.

      “In order to obtain relief on a claim of ineffectiveness, a PCRA

petitioner must satisfy the performance and prejudice test set forth in

Strickland v. Washington, 466 U.S. 668 (1984).”            Commonwealth v.

Reid, 99 A.3d 427, 436 (Pa. 2014) (parallel citation omitted).               In

Pennsylvania, adherence to the Strickland test requires a PCRA petitioner

to establish three prongs. Id. Specifically, the petitioner must demonstrate

“(1) the underlying claim has arguable merit; (2) no reasonable basis

existed for counsel’s actions or failure to act; and (3) the petitioner suffered

prejudice as a result of counsel’s error[.]”     Id. (citation omitted).   With

regard to the third prong, “prejudice [is] measured by whether there is a

reasonable probability that the result of the proceeding would be different.”

Id.   Moreover, we presume counsel has rendered effective assistance.

Commonwealth v. Rivera, 108 A.3d 779, 789 (Pa. 2014). “[I]f a claim

fails under any required element of the Strickland test, the court may


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dismiss the claim on that basis.”     Commonwealth v. Bomar, 104 A.3d

1179, 1188 (Pa. 2014), cert. denied, Bomar v. Pennsylvania, 136 S. Ct.

49 (2015). “Additionally, counsel cannot be deemed ineffective for failure to

raise a meritless claim.” Rivera, supra. (citation omitted).

      Appellant’s claim is that appellate counsel was ineffective for failing to

cite to specific portions of the record when advancing Appellant’s direct

appeal claim that the trial court erred in failing to grant his motion to

suppress his statements given to police.          Appellant’s Brief at 10-11.

Appellant also argues that trial counsel was ineffective because he “did not

actually pursue the [m]otion when it should have been pursued or pursued

the [m]otion in a haphazard fashion that is not clearly reflected by the

record[.]” Id. at 11.

      In reviewing Appellant’s claim we note that our Supreme Court has

previously held that, “in cases where appellate counsel is alleged to be

ineffective for failing to raise a claim of trial counsel’s ineffectiveness … the

inability of the petitioner to prove each prong of the Pierce test in respect to

trial counsel’s purported ineffectiveness alone will be fatal to his layered

ineffectiveness claim.”   Commonwealth v. Mallory, 941 A.2d 686, 699

n.15 (Pa. 2008) (citation omitted), cert. denied, Pennsylvania v. Mallory,

555 U.S. 884 (2008).




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      Instantly, a review of the record belies Appellant’s assertion that trial

counsel failed to pursue Appellant’s motion to suppress. Specifically, after

the Commonwealth rested at trial, the following occurred.

            The Court: … I will decide the motion now. Does
            anybody wish to make argument on the motion?
                 The motion was to suppress the taped
            conversations as well as the formal statements made
            by [Appellant].

                 I believe that’s all that was included in your
            motion?

            [Defense Counsel]:      … My client would like to
            testify before you do the motion.

            The Court: On the motion?

            [Defense Counsel]:      With respect to the motion
            itself.

            The Court: Very well. I’ll permit that. He can testify
            from where he’s sitting. It’s not a problem.

N.T., 8/5/09, at 91-92.

      The transcript continues for 20 pages, wherein the trial court heard

argument on Appellant’s motion to suppress, before ultimately denying said

motion and allowing the statements into evidence. Id. at 111. Accordingly,

trial counsel was not ineffective for failing to litigate Appellant’s motion to

suppress, as such claim is meritless. Mallory, supra. Furthermore, to the

extent Appellant attempts to argue appellate counsel was ineffective for

failing to raise this claim on direct appeal, this claim is also belied by the

record. Appellant solely argued in his direct appeal that the trial court erred


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in failing to grant Appellant’s motion to suppress.2              Henry, supra

(unpublished memorandum).

       Upon review, we agree with the PCRA court’s conclusion that

Appellant’s ineffective assistance of counsel claim for failing to adequately

pursue his motion to suppress is meritless, and thus fails under the

Strickland test.       Bomar, supra.           Therefore, the PCRA court was not

required to hold an evidentiary hearing.            See Baumhammers, supra;

Reid, supra.

       Based on the foregoing, we conclude the PCRA court correctly

dismissed Appellant’s PCRA petition without an evidentiary hearing.         See

Pander, supra. Accordingly, the PCRA court’s December 2, 2014 order is

affirmed.

       Order affirmed.




____________________________________________


2
   Additionally, we note that the PCRA court opinion comprehensively
discusses the basis for denying Appellant’s motion to suppress after hearing
testimony from Appellant himself in regards to said motion. PCRA Court
Opinion, 2/17/15, at 4-5. Accordingly, any claim by Appellant that appellate
counsel was ineffective for failing to cite to specific portions of the record in
support of Appellant’s direct appeal claim would warrant no relief as
Appellant’s claim that the trial court erred in denying his motion to suppress
is meritless. Bomar, surpa.



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/8/2015




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