J-S18027-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                          :         PENNSYLVANIA
                                          :
              v.                          :
                                          :
                                          :
 “C” J. STITT,                            :
                                          :
                   Appellant              :       No. 1325 WDA 2017

                Appeal from the PCRA Order August 10, 2017
          in the Court of Common Pleas of Westmoreland County,
            Criminal Division at No(s): CP-65-CR-0002644-2014

BEFORE: STABILE, J., MUSMANNO, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY MUSMANNO, J.:                            FILED JUNE 28, 2018

     “C” J. Stitt (“Stitt”) appeals from the Order dismissing his first Petition

filed pursuant to the Post Conviction Relief Act (“PCRA”). See 42 Pa.C.S.A.

§§ 9541-9546. We affirm.

     The PCRA court set forth the relevant underlying history as follows:

     This matter arose out of an incident that occurred on or about
     April 8, 2014. … [A]t 6:30 a.m. on the aforementioned date, New
     Kensington Police Department received information about an
     individual at a local hospital who had arrived with gunshot
     wounds. He was transported to Allegheny General Hospital in
     Pittsburgh for immediate surgery to treat wounds to the stomach
     and elbow area.

     Officers soon arrived at the crime scene at the rear corner of the
     Clarion Hotel in New Kensington. Jusuh Keneh’s (“Victim”) vehicle
     was identified in the parking lot, as well as broken glass from the
     vehicle on the pavement. A Pittsburgh Pirates ball cap was also
     located, along with a small black handgun. It also appeared that
     Victim’s rear passenger hubcap had been tampered with, as pry
     marks were found. On the same date, Victim was interviewed.
     He related that he had been sleeping in his car in the rear of the
     hotel parking lot. His friend and friend’s girlfriend were sleeping
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     in a car nearby. At approximately 5 a.m., he observed another
     vehicle pull up in front of their vehicles. He then observed [Stitt]
     exit the vehicle and walk to the rear passenger side of his vehicle.
     Victim then exited his vehicle and asked [Stitt] what he was doing.
     A verbal confrontation ensued, and [Stitt] revealed that he was
     carrying a small handgun. [Stitt] pointed the gun at Victim, and
     told Victim to give him money as he reached for Victim’s pockets.
     [Stitt] then fired his gun several times, hitting [V]ictim in the
     stomach. Victim attempted to subdue [Stitt] by choking him.
     [Stitt] shot Victim again in the elbow. At that point, Victim’s friend
     in the nearby vehicle attempted to aid Victim, and [Stitt] ran into
     the woods.

     Officers interviewed [Stitt] on April 30, 2014. [Stitt] indicated
     that he was at the scene of the crime and that the Pittsburgh
     Pirates hat found belonged to him. [Stitt] stated that he shot
     Victim in self-defense.

     [Stitt] was charged by criminal information with one count of
     Attempted Homicide, 18 Pa.C.S.A. § 901(a), one count of
     Robbery, 18 Pa.C.S.A. § 3701(a)(1)(i), and one count of
     Aggravated Assault, 18 Pa.C.S.A. § 2702(a)(1). [Stitt] entered
     an open guilty plea before the Honorable Judge Debra A. Pezze on
     July 14, 2015, and sentencing was deferred to the next available
     motions court. After a number of continuances, [Stitt] was
     sentenced on March 22, 2016 by Judge Pezze to 3 to 10 years[’]
     incarceration with credit for time served. [Stitt] was ordered to
     pay costs of prosecution and to participate in drug and alcohol
     treatment. [Stitt] was also ordered to pay restitution in the
     amount of $18,159.97, which was documented.

     [Stitt] did not file a direct appeal. [Stitt] filed the instant PCRA
     Petition on April 10, 2017. Th[e PCRA c]ourt appointed Attorney
     Emily Smarto on April 20, 2017, for the purpose of PCRA
     proceedings. Attorney Smarto filed an Amended PCRA [Petition]
     on June 12, 2017.

     In his [A]mended [P]etition, [Stitt] avers that his [plea counsel,]
     Chris Haidze[,] was ineffective for failing to request a restitution
     hearing, failing to present evidence regarding [Stitt’s] ability to
     pay restitution, and failing to file an appeal regarding costs and
     restitution.

PCRA Court Opinion, 7/10/17, at 1-3.

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      The PCRA court issued a Pa.R.Crim.P. 907 Notice. Thereafter, the PCRA

court dismissed Stitt’s Petition. Stitt filed a timely Notice of Appeal and a

court-ordered Pa.R.A.P. 1925(b) Concise Statement.

      On appeal, Stitt raises the following questions for our review:

      I.     Whether [Stitt] was denied effective assistance of counsel
             when counsel failed to request a restitution hearing?

      II.    Whether counsel was ineffective for failing to present
             evidence regarding [Stitt’s] ability to pay?

      III.   Whether counsel was ineffective for failing to file a direct
             appeal relative to cost and restitution?

Brief for Appellant at 4 (capitalization omitted).

      “The standard of review of an order dismissing a PCRA petition is

whether that determination is supported by the evidence of record and is free

of legal error.”   Commonwealth v. Weimer, 167 A.3d 78, 81 (Pa. Super.

2017) (citation omitted).    “The PCRA court’s findings will not be disturbed

unless there is no support for the findings in the certified record.” Id. (citation

omitted). Further, “a PCRA court has discretion to dismiss a PCRA petition

without a hearing if the court is satisfied that there are no genuine issues

concerning any material fact; that the defendant is not entitled to post-

conviction collateral relief; and that no legitimate purpose would be served by

further proceedings.” Commonwealth v. Brown, 161 A.3d 960, 964 (Pa.

Super. 2017) (citation omitted).

      We will address Stitt’s claims together.       Stitt contends that his plea

counsel was ineffective for failing to request a restitution hearing. Brief for

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Appellant at 7. Stitt also argues that his plea counsel was ineffective for failing

to present evidence regarding his ability to pay restitution. Id. at 7-8. Stitt

further claims that the PCRA court should have held an evidentiary hearing on

his ineffectiveness claims. Id. at 7, 8-9. Stitt notes that if an evidentiary

hearing had been held, the evidence “may” have shown that he “advised

counsel that he agreed with [the] restitution amount and cost amount and

had no evidence to present to the court with regard to his ability to pay.” Id.

at 8.1

         To succeed on such an ineffectiveness claim, Stitt must demonstrate by

the preponderance of the evidence that

         (1) [the] underlying claim is of arguable merit; (2) the particular
         course of conduct pursued by counsel did not have some
         reasonable basis designed to effectuate his interests; and (3) but
         for counsel’s ineffectiveness, there is a reasonable probability that
         the outcome of the proceedings would have been different.

Commonwealth v. Ali, 10 A.3d 282, 291 (Pa. 2010). A petitioner’s failure

to satisfy any prong of the ineffectiveness test requires rejection of the claim.

Commonwealth v. Burno, 94 A.3d 956, 972 (Pa. 2014).                     Counsel is




____________________________________________


1 We note that Stitt baldly states, without any argument or citation to
authority, that counsel was ineffective for failing to file a direct appeal. Brief
for Appellant at 8. Because Stitt fails to provide an argument in support of
his claim, we deem it waived on appeal. See Commonwealth v. Thoeun
Tha, 64 A.3d 704, 713 (Pa. Super. 2013) (stating that “[f]ailure to present or
develop an argument in support of a claim causes it to be waived.”); see also
Pa.R.A.P. 2119(a) (stating that the argument shall include “such discussion
and citation of authorities as are deemed pertinent.”).

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presumed to be effective, and the burden is on the appellant to prove

otherwise. Commonwealth v. Watkins, 108 A.3d 692, 702 (Pa. 2014).

      In Pennsylvania, restitution can be imposed either as a condition of

probation or as a direct sentence. Commonwealth v. Karth, 994 A.2d 606,

607 (Pa. Super. 2010). Here, the restitution was imposed as a direct sentence

under section 1106 of the Pennsylvania Crimes Code, which states the

following, in relevant part:

      (a) GENERAL RULE.—Upon conviction for any crime wherein
      property has been stolen, converted or otherwise unlawfully
      obtained, or its value substantially decreased as a direct result of
      the crime, or wherein the victim suffered personal injury directly
      resulting from the crime, the offender shall be sentenced to
      make restitution in addition to the punishment prescribed
      therefor.

                                       ***

      (c) MANDATORY RESTITUTION.—

      (1) The court shall order full restitution:

        (i) Regardless of the current financial resources of the
        defendant, so as to provide the victim with the fullest
        compensation for the loss. …

                                       ***

      (2) At the time of sentencing the court shall specify the amount
      and method of restitution.     In determining the amount and
      method of restitution, the court:

        (i) Shall consider the extent of injury suffered by the victim, the
        victim’s request for restitution ... and such other matters as it
        deems appropriate.




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       (ii) May order restitution in a lump sum, by monthly
       installments or according to such other schedule as it deems
       just.

18 Pa.C.S.A. § 1106.

     The PCRA court addressed Stitt’s ineffectiveness claims as follows:

     At the sentencing hearing, [Victim] testified regarding his injuries.
     He stated that his gunshot injuries required extensive
     hospitalization (3-4 weeks), and that he still suffered side effects
     from those injuries. [N.T., 3/22/16, at 3.] Specifically, [Victim]
     could eat only small amounts of food as his intestines were still
     healing from the gunshot wound to his stomach. [Id.] Because
     extensive recovery time was required, he lost his job. [Id. at 4.]
     [Victim] had also been diagnosed with PTSD, for which he required
     counseling, and needed physical therapy [] for approximately one
     month. [Id. at 5.] Victim also still had to receive routine x-rays,
     as one bullet remained in his arm. [Id. at 7.] [Stitt] does not list
     any reason why defense counsel should have objected to the
     amount of restitution recommended by the District Attorney.
     [Stitt] does not list with specificity why the restitution order was
     unfair or inaccurate, and offers only a boilerplate allegation that a
     hearing should have been held to dispute the restitution. Due to
     [Stitt’s] lack of any cogent argument against the trial court’s
     order, and the fact that [Victim] testified to the injuries that
     resulted from the crimes for which [Stitt] pled guilty, these claims
     do not have arguable merit.

     Even assuming, arguendo, that there was arguable merit to
     [Stitt’s] claims, counsel had a reasonable basis for not requesting
     a restitution hearing …. Restitution costs were documented from
     specialists, hospitals, and counseling providers. As discussed,
     supra, [V]ictim testified at the sentencing hearing regarding the
     costs of the crime. His testimony established that there was a
     causal connection between [V]ictim’s injuries and [Stitt’s] actions.
     See, e.g., [Commonwealth] v. Walker, 666 A.2d 301, 310 (Pa.
     Super. 1995) (holding restitution for medical bills was proper
     because a defendant’s drunk driving caused a two-car accident).
     The costs were not speculative or excessive. Moreover, [Stitt’s
     plea counsel] pursued a reasonable path by not pursuing a
     restitution hearing when there was not sufficient evidence to
     establish that the recommendation was unreasonable ….


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      The [PCRA c]ourt finds that [plea counsel] acted in a reasonable
      and effective manner, and that there was no reasonable basis for
      him to pursue a restitution hearing … based on the facts
      presented. For these reasons, [Stitt’s] claims also fail the second
      prong under the three-pronged test for ineffectiveness.

      For many of the reasons discussed, supra, [Stitt’s] claims similarly
      fail the third prong: that there is a reasonable probability that,
      but for the act or omission challenged, the outcome of the
      proceeding would have been different. Based on the fact that
      [Victim] suffered extensive physical and emotional harm as a
      direct result of [Stitt’s] actions, and that the costs were
      documented, it is unlikely that the trial court would have altered
      its original [O]rder had it been appealed.

      [Stitt’s] claims fail each prong of the ineffectiveness test. As such,
      he is not entitled to post-conviction relief for these claims.

PCRA Court Opinion, 7/10/17, at 6-9 (footnote omitted).

      Upon our review of Stitt’s argument and the record, we agree with the

PCRA court’s reasoning. See id. Indeed, in his appellate brief, Stitt presents

bald assertions of ineffectiveness without citing to any objectionable evidence

regarding the documented restitution. See Commonwealth v. Chmiel, 30

A.3d 1111, 1128 (Pa. 2011) (noting that boilerplate allegations and bald

assertions cannot satisfy a petitioner’s burden to prove ineffective assistance

of counsel). Additionally, Stitt’s ability to pay is irrelevant to the imposition

of restitution as a direct sentence. See 18 Pa.C.S.A. § 1106(c)(1)(i) (stating

that the court orders restitution “[r]egardless of the current financial

resources of the defendant, so as to provide the victim with the fullest

compensation for the loss.”); Commonwealth v. Rush, 909 A.2d 805, 811

(Pa. Super. 2006) (noting that under section 1106, the “court need not


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consider the defendant’s ability to pay at the time of imposing restitution[.]”).

Further, Stitt may not use an evidentiary hearing “as a fishing expedition for

any   possible   evidence   that   may   support   [his]   speculative   claim[.]”

Commonwealth v. Castro, 93 A.3d 818, 828 (Pa. 2014) (citation omitted);

see also Commonwealth v. Clark, 961 A.2d 80, 85 (Pa. 2008) (noting that

where a PCRA petition fails to raise a genuine issue of material fact, an

evidentiary hearing on the petition is not required). Thus, Stitt is not entitled

to relief on his claims.

      Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/28/2018




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