J-S32012-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                      Appellee                 :
                                               :
               v.                              :
                                               :
    STEPHEN DAVIS                              :
                                               :
                      Appellant                :       No. 2085 EDA 2016

                    Appeal from the PCRA Order June 2, 2016
                 In the Court of Common Pleas of Bucks County
              Criminal Division at No(s): CP-09-CR-0004809-2011


BEFORE:      GANTMAN, P.J., STABILE, J., and FITZGERALD, J.*

MEMORANDUM BY GANTMAN, P.J.:                              FILED JUNE 26, 2017

        Appellant, Stephen Davis, appeals from the order entered in the Bucks

County Court of Common Pleas, which denied his first petition filed pursuant

to the Post Conviction Relief Act (“PCRA”).1 We affirm.

        The PCRA court opinion fully sets forth the relevant facts and

procedural history of this case. Therefore, we have no need to restate them.

The court ordered Appellant on July 5, 2016, to file a concise statement of

errors complained of on appeal, per Pa.R.A.P. 1925(b); and Appellant timely

complied on July 21, 2016.

        Appellant raises two issues for our review:


____________________________________________


1
    42 Pa.C.S.A. §§ 9541-9546.


___________________________

*Former Justice specially assigned to the Superior Court.
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         DID THE [PCRA] COURT [ERR] BY DENYING APPELLANT’S
         CLAIM FOR PCRA RELIEF WHEN TRIAL COUNSEL FAILED
         TO CALL CHARACTER WITNESSES ON APPELLANT’S
         BEHALF?

         DID THE [PCRA] COURT [ERR] BY DENYING APPELLANT’S
         CLAIM    FOR   PCRA    RELIEF  WHEN    APPELLANT
         UNKNOWINGLY AND INVOLUNTARILY WAIVED HIS
         CONSTITUTIONAL RIGHT TO TESTIFY BASED UPON TRIAL
         COUNSEL’S UNREASONABLE ADVICE AND WITHOUT
         SUFFICIENT    CONSULTATION     WITH     EFFECTIVE
         ASSISTANCE OF COUNSEL?

(Appellant’s Brief at 4).

      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, 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). 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).

Where the record supports the PCRA court’s credibility resolutions, they are

binding on this Court. Id.

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        The   law   presumes    counsel    has   rendered     effective   assistance.

Commonwealth v. Gonzalez, 858 A.2d 1219, 1222 (Pa.Super. 2004),

appeal denied, 582 Pa. 695, 871 A.2d 189 (2005). To prevail on a claim of

ineffective   assistance   of   counsel,    a    petitioner   must   show,      by    a

preponderance of the evidence, 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.      Commonwealth v. Turetsky, 925 A.2d 876, 880

(Pa.Super. 2007), appeal denied, 596 Pa. 707, 940 A.2d 365 (2007). The

petitioner must demonstrate: (1) the underlying claim has arguable merit;

(2) counsel lacked a reasonable strategic basis for his action or inaction; and

(3) but for counsel’s errors and omissions, there is a reasonable probability

the outcome of the proceedings would have been different.                 Id.    “The

petitioner bears the burden of proving all three prongs of the test.”                Id.

“Where it is clear that a petitioner has failed to meet any of the three,

distinct prongs of the…test, the claim may be disposed of on that basis

alone, without a determination of whether the other two prongs have been

met.”    Commonwealth v. Steele, 599 Pa. 341, 360, 961 A.2d 786, 797

(2008).

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

applicable law, and the well-reasoned opinion of the Honorable Jeffrey L.

Finley, P.J., we conclude Appellant’s issues merit no relief. The PCRA court


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opinion comprehensively discusses and properly disposes of the questions

presented. (See PCRA Court Opinion, filed August 4, 2016 at 8-12) (finding:

(1) Appellant conceded he knew he could call character witnesses after

discussing it with trial counsel; Appellant claimed he gave counsel specific

names and numbers of character witnesses, but trial counsel contradicted

Appellant’s statements and counsel’s file contained no list of potential

character witnesses; Appellant’s mother was only potential character witness

to testify at PCRA hearing; Appellant’s mother indicated she was willing and

able to testify at trial concerning Appellant’s reputation in community as a

non-violent, peaceful person; counsel did not call any character witness to

testify about Appellant’s reputation in community for peacefulness due to

concern that Commonwealth would highlight extent of Victim’s severe

injuries and character witness’ testimony would do nothing to explain how

Victim sustained such severe injuries; trial counsel did not call character

witness to testify about Appellant’s reputation in community as law-abiding

because    Commonwealth       was      prepared   to   introduce     Appellant’s   prior

convictions; trial counsel had reasonable strategic basis for not calling

character witnesses during trial; additionally, Appellant failed to provide

additional character witnesses, besides his mother, who were available and

willing to testify; (2) Appellant admitted he understood he had right to

testify and that trial court colloquied him; trial counsel advised Appellant not

to   testify   because   Appellant’s    statement      to   police   already   provided


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Appellant’s version of events, which jury heard; Appellant would face cross-

examination on his prior crimen falsi convictions if he testified; Appellant’s

girlfriend/co-defendant also testified, and her account of events was

consistent with Appellant’s theory of case; counsel had reasonable strategic

basis for advising Appellant not to testify; Appellant heeded counsel’s

advice; therefore, Appellant’s ineffective assistance of counsel claims merit

no relief). The record supports the PCRA court’s rationale. Accordingly, we

affirm on the basis of the PCRA court’s opinion.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/26/2017




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