J-S59004-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                    Appellee              :
                                          :
              v.                          :
                                          :
 CHRISTOPHER DICKENSON                    :
                                          :
                    Appellant             :         No. 583 EDA 2017

                Appeal from the PCRA Order January 27, 2017
            In the Court of Common Pleas of Philadelphia County
            Criminal Division at No(s): CP-51-CR-0010487-2012


BEFORE: GANTMAN, P.J., LAZARUS, J., and OTT, J.

MEMORANDUM BY GANTMAN, P.J.:                    FILED NOVEMBER 06, 2018

      Appellant, Christopher Dickenson, 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 at 42 Pa.C.S.A. §§ 9541-9546. We

affirm.

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

Following a bench trial on September 10, 2013, the court convicted Appellant

of aggravated assault, simple assault, and recklessly endangering another

person. On March 20, 2014, the court imposed a sentence of 4 to 8 years’

incarceration, plus 5 years’ probation. Appellant filed a timely post-sentence

motion for reconsideration on March 28, 2014, which the court denied on May

6, 2014. Appellant sought no appellate review.

      On August 28, 2014, Appellant timely filed his first pro se PCRA petition.
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The PCRA court appointed counsel, who filed an amended PCRA petition on

May 4, 2016. The court failed to issue notice of its intent to dismiss without

a hearing, per Pa.R.Crim.P. 907 but, on January 27, 2017, the court dismissed

Appellant’s PCRA petition.1         Appellant filed a timely notice of appeal on

February 13, 2017.         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 none was filed.

       Appellant raises the following issues for our review:

          WHETHER THE COURT ERRED IN DENYING…APPELLANT’S
          PCRA PETITION WITHOUT AN EVIDENTIARY HEARING ON
          THE ISSUES RAISED IN THE AMENDED PCRA PETITION
          REGARDING COUNSEL’S INEFFECTIVENESS[?]

          WHETHER THE COURT ERRED IN NOT GRANTING RELIEF ON
          THE   PCRA    PETITION ALLEGING   COUNSEL    WAS
          INEFFECTIVE[?]

(Appellant’s Brief at 8).

       Appellant argues trial counsel was ineffective for failing to file a post-

sentence motion challenging the verdict as against the weight of the evidence.

Appellant    alleges    his   underlying       claim   is   meritorious   because   the


____________________________________________


1 Rule 907 notice is mandatory. Commonwealth v. Guthrie, 749 A.2d 502
(Pa.Super. 2000). See also Commonwealth v. Feighery, 661 A.2d 437
(Pa.Super. 1995) (explaining notice requirement of intention to dismiss is
mandatory; vacating and remanding for fulfillment of notice requirement).
Nevertheless, the failure to challenge on appeal the absence of Rule 907 notice
constitutes waiver of that claim. Commonwealth v. Taylor, 65 A.3d 462
(Pa.Super. 2013); Commonwealth v. Williams, 909 A.2d 383 (Pa.Super.
2006). Here, Appellant did not complain of the lack of Rule 907 notice, so we
will give it no further attention.

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Commonwealth presented inconsistent evidence throughout trial. Appellant

maintains the altercation was a mutual fight between Appellant and

complainant over a woman.         Appellant contends complainant provided

conflicting testimony regarding his knowledge of a relationship between

Appellant and the woman. Appellant also asserts the Commonwealth failed to

provide hospital records to substantiate complainant’s testimony about his

injuries.

      Appellant further claims trial counsel had no reasonable strategy for

failing to raise a weight issue post-sentence, as doing so effectively waived

the issue for appeal. Appellant reasons that if he had established the verdict

was against the weight of the evidence, his conviction would have been

vacated and his constitutional right to avoid double jeopardy would have

precluded the Commonwealth from recharging him with the same offense.

Finally, Appellant asserts the PCRA court should have granted him an

evidentiary hearing to determine whether Appellant ever requested trial

counsel to challenge the weight of the evidence and trial counsel’s reasons for

failing to do so. Appellant concludes we must reverse the PCRA court’s order

and grant Appellant a discharge, a new trial, or at least a PCRA evidentiary

hearing. We disagree.

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

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

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


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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 give no such deference, however, to the court’s legal conclusions.

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

petitioner is not entitled to a PCRA hearing as a matter of right; the PCRA

court can decline to hold a hearing if there is no genuine issue concerning any

material fact, the petitioner is not entitled to PCRA relief, and no purpose

would be served by any further proceedings. Commonwealth v. Wah, 42

A.3d 335 (Pa.Super. 2012).

      The   law   presumes    counsel    has   rendered    effective   assistance.

Commonwealth v. Williams, 597 Pa. 109, 950 A.2d 294 (2008). When

asserting a claim of ineffective assistance of counsel, the petitioner is required

to demonstrate that: (1) the underlying claim is of arguable merit; (2) counsel

had no reasonable strategic basis for his 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. Commonwealth v.

Kimball, 555 Pa. 299, 724 A.2d 326 (1999). The failure to satisfy any prong

of the test for ineffectiveness will cause the claim to fail. Williams, supra.

      “The threshold inquiry in ineffectiveness claims is whether the

issue/argument/tactic which counsel has foregone and which forms the basis


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for the assertion of ineffectiveness is of arguable merit….” Commonwealth

v. Pierce, 537 Pa. 514, 524, 645 A.2d 189, 194 (1994). “Counsel cannot be

found ineffective for failing to pursue a baseless or meritless claim.”

Commonwealth v. Poplawski, 852 A.2d 323, 327 (Pa.Super. 2004).

        Once this threshold is met we apply the ‘reasonable basis’
        test to determine whether counsel’s chosen course was
        designed to effectuate his client’s interests. If we conclude
        that the particular course chosen by counsel had some
        reasonable basis, our inquiry ceases and counsel’s
        assistance is deemed effective.

Pierce, supra at 524, 645 A.2d at 194-95 (internal citations omitted).

        Prejudice is established when [an appellant] demonstrates
        that counsel’s chosen course of action had an adverse effect
        on the outcome of the proceedings. The [appellant] must
        show that there is a reasonable probability that, but for
        counsel’s unprofessional errors, the result of the proceeding
        would have been different. A reasonable probability is a
        probability sufficient to undermine confidence in the
        outcome. In [Kimball, supra], we held that a “criminal
        [appellant] alleging prejudice must show that counsel’s
        errors were so serious as to deprive the defendant of a fair
        trial, a trial whose result is reliable.”

Commonwealth v. Chambers, 570 Pa. 3, 21-22, 807 A.2d 872, 883 (2002)

(some internal citations and quotation marks omitted).

     The following principles apply to a weight of the evidence claim:

           The weight of the evidence is exclusively for the finder
           of fact who is free to believe all, part, or none of the
           evidence and to determine the credibility of the
           witnesses. An appellate court cannot substitute its
           judgment for that of the finder of fact. Thus, we may
           only reverse the…verdict if it is so contrary to the
           evidence as to shock one’s sense of justice.

        Commonwealth v. Small, 559 Pa. 423, [435,] 741 A.2d

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         666, 672-73 (1999). Moreover, where the trial court has
         ruled on the weight claim below, an appellate court’s role is
         not to consider the underlying question of whether the
         verdict is against the weight of the evidence. Rather,
         appellate review is limited to whether the trial court palpably
         abused its discretion in ruling on the weight claim.

Commonwealth v. Champney, 574 Pa. 435, 444, 832 A.2d 403, 408

(2003), cert. denied, 542 U.S. 939, 124 S.Ct. 2906, 159 L.Ed.2d 816 (2004)

(most internal citations omitted).

      Instantly, the PCRA court reasoned:

         In the Amended PCRA Petition, [Appellant] fails to allege
         that he ever asked his trial counsel to file any post-verdict
         motion challenging the weight of the evidence and a review
         of the record shows the same. Therefore, [Appellant’s]
         claim must fail.

                                     *    *    *

         Although it is quite evident that [Appellant] did not ask
         counsel to [challenge the weight of the evidence;] even if
         he had made the request in a timely manner, [Appellant’s]
         claim still fails to establish any measures for ineffective
         assistance of counsel. First, [Appellant’s] underlying claim
         has no arguable merit. [Appellant] argues his claim has
         merit because “the prosecution’s case was built on mere
         speculation and pure conjecture.”           Supporting this
         argument, [Appellant] cites one perceived conflict in
         testimony involving how the complaining victim knew a
         woman when [Appellant] argues that “first [the
         complainant] denied that he knew of any connection
         between [Appellant] and [the woman] and then on cross
         examination testified he was aware of the connection.” The
         notion that [Appellant] has a right to a new trial because of
         a single [potentially] insignificant inconsistency is wholly
         frivolous. As stated in Commonwealth v. Widmer, “A new
         trial should not be granted because of a mere conflict in the
         testimony or because the judge on the same facts would
         have arrived at a different conclusion.”                 See
         Commonwealth v. Widmer, 560 Pa. 308, 319-20, [744


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         A.2d 745, 752] (2000). The trial record reflects the fact
         finder had properly resolved the conflict in the testimony
         within the evaluation of all evidence.

         [Appellant’s] claim also fails because the entire trial record
         reflects that counsel performed reasonably and there was
         no ineffectiveness that prejudiced [Appellant]. At trial and
         at sentencing trial counsel vigorously argued that the
         elements of Aggravated Assault had not been proven and
         similarly that the attack at issue did not rise beyond a
         Simple Assault level. The trial court disagreed with the clear
         and cogent arguments raised by defense counsel. More
         importantly the recorded testimony and physical evidence
         introduced at trial soundly supported the verdicts of guilty
         as to all charges.

         “Counsel cannot be deemed ineffective for failing to pursue
         a meritless claim.” Commonwealth v. Daniels, 947 A.2d
         795, 798 (Pa.Super. 2008). The trial court deemed the
         recorded witness testimony to be credible and corroborated
         by physical documents such as pictures displaying the
         injuries sustained by the victim.         The overwhelming
         evidence soundly supported the trial court’s verdicts of
         guilty as to all charges. As such, trial counsel cannot be
         faulted for not filing or arguing the baseless post-verdict
         motion concerning weight of the evidence even if he was
         requested to do so by [Appellant]. No prejudice could have
         resulted from the lack of filing of this frivolous argument.
         The claim fails for lack of merit.

                                  Conclusion

         For the reasons stated above, there is no legitimate basis
         for relief for the claims contained within the Amended PCRA
         Petition, filed on [Appellant’s] behalf [through] his
         appointed counsel and which incorporated the claims cited
         within the originally filed pro se PCRA Petition. [Appellant’s]
         request to vacate the Order of Sentence was properly
         denied by the Order entered by this Court on January 27,
         2017.

(PCRA Court Opinion, filed January 22, 2018, at 15-17) (some internal

citations omitted).   The record supports the PCRA court’s decision to deny

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Appellant relief on the grounds asserted.2 Accordingly, we affirm.

       Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/6/18




____________________________________________


2 Our Supreme Court has expressly disapproved of the practice of courts
making wholesale adoptions of one party’s position.                See, e.g.,
Commonwealth v. (Roy L.) Williams, 557 Pa. 207, 224-25, 732 A.2d 1167,
1176 (1999) (acknowledging there is no prohibition for court to adopt portions
of advocate’s arguments in support of judicial disposition; refusing, however,
to condone wholesale adoption of advocate’s stance in court’s disposition of
post-conviction case involving review of death sentence).            See also
Commonwealth v. Fulton, 583 Pa. 65, 71, 876 A.2d 342, 345 (2002)
(extending Supreme Court’s disapproval beyond capital cases and stressing
importance of court providing independent judicial analysis).

Here, the trial court opinion first expressly adopted the legal analysis
contained in the Commonwealth’s motion to dismiss Appellant’s amended
PCRA petition. The court then proceeded to provide its own legal analysis in
support of its decision. Prevailing precedent requires the court to refrain in
the future from stating a wholesale adoption of one party’s position.


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