J-A22011-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                            Appellee

                       v.

CALVIN BARTHOLOMUE LYNCH

                            Appellant                No. 98 MDA 2016


                  Appeal from the PCRA Order January 6, 2016
               in the Court of Common Pleas of Lancaster County
              Criminal Division at No(s): CP-36-CR-0003224-2010
                                          CP-36-CR-0005345-2009
                                          CP-36-CR-0005350-2009


BEFORE: GANTMAN, P.J., PANELLA, J., and JENKINS, J.

MEMORANDUM BY JENKINS, J.:                        FILED AUGUST 22, 2016

        Calvin Bartholomue Lynch (“Appellant”) appeals from the dismissal of

his petition filed pursuant to the Post Conviction Relief Act (“PCRA”), 42

Pa.C.S. § 9541 et seq. After careful review, we affirm.

        The PCRA court explained the procedural posture of this matter as

follows:

             The procedural posture of this matter is nuanced. On
        Docket [CP-36-CR-000]3224-2010, [Appellant] was charged with
        Robbery,[1] Burglary,[2] and related offenses. These charges
        arose from a residential robbery. Another incident was then
        added to the same docket regarding the robbery of a Turkey Hill
        convenience store. A pretrial suppression hearing was held on
____________________________________________


1
    18 Pa.C.S. § 3701.
2
    18 Pa.C.S. § 3502.
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        January 4, 2011. Trial [c]ounsel obtained a severance of the
        convenience store robbery charges at that hearing. Eventually,
        [t]rial [c]ounsel was able to obtain a dismissal of the
        convenience store charges.          After the suppression hearing,
        [Appellant] chose to represent himself at trial for the remaining
        charges.       On January 7, 2011, a jury of his peers found
        [Appellant] guilty of Burglary, Robbery, and Theft.[3] During the
        trial, [t]rial [c]ounsel acted as standby counsel.

        On Docket [CP-36-CR-000]5350-2009, [Appellant] was charged
        with Aggravated Assault[4] and related offenses for striking his
        girlfriend with a baseball bat. On Docket [CP-36-CR-000]5345-
        2009, [Appellant] was charged with intimidation of a witness.[5]
        These cases were tried together as the victim (his girlfriend) was
        the same in both instances. Trial [c]ounsel also represented
        [Appellant] on these Dockets. [Appellant] proceeded to a bench
        trial on both Dockets and was found guilty on January 31, 2011.

        [Appellant] was sentenced on March 24, 2011. On dockets
        5350-2009 and 5345-2009, [Appellant] was sentenced, in
        totality, to a sentence of thirteen and one-half (13½) to twenty-
        seven (27) years.       On Docket 3224-2010, [Appellant] was
        sentenced to eight (8) to twenty (20) years. The sentences
        were ordered to be served consecutively. In the aggregate,
        [Appellant] was sentenced to twenty-one and a half (21½) to
        forty-seven (47) years of incarceration. [Appellant] then filed
        post-sentence motions and appealed to the Superior Court. The
        Superior Court affirmed all of the convictions.2 The Supreme
        Court then denied [Appellant’s] petition for allocatur.[6]


____________________________________________


3
    18 Pa.C.S. § 3921.
4
    18 Pa.C.S. § 2702.
5
    18 Pa.C.S. § 4952.
6
  The Supreme Court of Pennsylvania denied allocatur on the appeal from
Docket No. 3224-2010 on November 28, 2012. The Supreme Court denied
allocatur on the appeal from Docket Nos. 5345-2009 and 5350-2009 on
February 25, 2014.



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          2
            – The Superior Court affirmed Docket 3224-2010 on
          March 1, 2012 and affirmed Dockets 5450-2009 and 5345-
          2009 on July 29, 2014.

PCRA Court’s Memorandum of Opinion, filed December 28, 2015 (“PCRA

Opinion”), pp. 1-2.

       Appellant filed timely pro se PCRA petitions on Docket No. 3224-2010

and Docket Nos. 5345-2009 and 5350-2009 on October 17, 2013 and

January 15, 2015, respectively.7               The PCRA court held a consolidated

hearing for all dockets on July 7, 2015. On December 28, 2015, the PCRA

court denied Appellant’s PCRA petitions.8 Appellant filed a timely notice of

appeal on January 14, 2016.9

       Appellant raises the following issues for review:

       A. Whether the [PCRA] court erred in denying [Appellant’s]
       amended PCRA [petition] when trial counsel was ineffective by
       failing to properly litigate that [Appellant] was not arraigned and
       that the charges docketed at No. 3224 of 2010 were never
       properly initiated?

       B. Whether the [PCRA] court erred in denying [Appellant’s]
       amended PCRA [petition] when counsel was ineffective by

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7
 Appointed PCRA counsel filed amended petitions on Docket No. 3224-2010
and Docket Nos. 5345-2009 and 5350-2009 on November 21, 2014 and
April 17, 2015, respectively.
8
  The PCRA court filed a second order on January 6, 2016 that merely
corrected a filing technicality.
9
  The PCRA court did not order Appellant to file a Pa.R.A.P. 1925(b)
statement of matters complained of on appeal. On January 14, 2016, the
PCRA court adopted its December 28, 2014 PCRA Opinion as its Pa.R.A.P.
1925(a) opinion.



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      advising him that such waiver would result in him receiving a
      lenient sentence?

      C. Whether the [PCRA] court erred in denying [Appellant’s]
      amendended [sic] PCRA [petition] when trial counsel was
      ineffective by failing to advise [Appellant] that his version of
      events was incredible which statement induced [Appellant] to
      present false testimony that his actions were a response to the
      victim’s assaultive behavior?

      D. Whether the [PCRA] court erred in denying [Appellant’s]
      amended PCRA [petition] when counsel failed to withdraw when
      there existed an actual conflict of interest between counsel and
      [Appellant] which was manifested by [Appellant] electing to
      represent himself on the charges docketed at No. 3224 of 2010?

Appellant’s Brief, p. 4 (unnecessary capitalization removed).

      Our standard of review is well-settled.    “In reviewing the denial of

PCRA relief, we examine whether the PCRA court’s determination is

supported by the record and free of legal error.” Commonwealth v. Fears,

86 A.3d 795, 803 (Pa.2014) (internal quotation marks and citation omitted).

“The PCRA court’s findings will not be disturbed unless there is no support

for the findings in the certified record.”   Commonwealth v. Barndt, 74

A.3d 185, 191-192 (Pa.Super.2013) (internal quotations and citations

omitted). “The scope of review is limited to the findings of the PCRA court

and the evidence of record, viewed in the light most favorable to the

prevailing party at the trial level.” Commonwealth v. Spotz, 84 A.3d 294,

311 (Pa.2014) (citation omitted).    “It is well-settled that a PCRA court’s

credibility determinations are binding upon an appellate court so long as

they are supported by the record.” Commonwealth v. Robinson, 82 A.3d

998, 1013 (Pa.2013) (citation omitted).      However, this Court reviews the


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PCRA court’s legal conclusions de novo. Commonwealth v. Rigg, 84 A.3d

1080, 1084 (Pa.Super.2014) (citation omitted).

        Pennsylvania courts apply the Pierce10 test to review claims of

ineffective assistance of counsel:

        When a petitioner alleges trial counsel’s ineffectiveness in a
        PCRA petition, he must prove by a preponderance of the
        evidence that his conviction or sentence 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. We have interpreted this provision in the PCRA to
        mean that the petitioner must show: (1) that his claim of
        counsel’s ineffectiveness has merit; (2) that counsel had no
        reasonable strategic basis for his action or inaction; and (3) that
        the error of counsel prejudiced the petitioner-i.e., that there is a
        reasonable probability that, but for the error of counsel, the
        outcome of the proceeding would have been different. We
        presume that counsel is effective, and it is the burden of
        Appellant to show otherwise.

Commonwealth v. duPont, 860 A.2d 525, 531 (Pa.Super.2004) (internal

citations and quotations omitted).             The petitioner bears the burden of

proving all three prongs of this test.         Commonwealth v. Meadows, 787

A.2d 312, 319-320 (Pa.2001).               “If an appellant fails to prove by a

preponderance of the evidence any of the Pierce prongs, the Court need not

address the remaining prongs of the test.” Commonwealth v. Fitzgerald,

979 A.2d 908, 911 (Pa.2010) (citation omitted).




____________________________________________


10
     Commonwealth v. Pierce, 527 A.2d 973 (Pa.1987).



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       Appellant first alleges trial counsel provided ineffective assistance by

failing to litigate the absence of a preliminary arraignment on Docket No.

3224 of 2010. See Appellant’s Brief, pp. 12-15. This claim merits no relief.

       Contrary to Appellant’s claims, the record reveals Appellant was both

preliminarily arraigned and served with an arrest warrant pursuant to

Pa.R.Crim.P. 540 at the preliminary hearing. Despite this, trial counsel still

litigated this claim at the January 4, 2011 pretrial hearing, at which time the

trial court denied relief.     Because Appellant’s underlying claim lacks merit,

Appellant’s    claim    of   ineffective   assistance   of   counsel   fails. 11   See

Commonwealth v. Koehler, 36 A.3d 121, 144 (Pa.2012) (“[C]ounsel

cannot be deemed ineffective for failing to pursue a meritless claim.”).

       Appellant next claims trial counsel provided ineffective assistance of

counsel by improperly inducing and coercing Appellant to waive his right to a

jury trial at Docket Nos. 5350-2009 and 5345-2009 by advising him that

such waiver could result in a lenient sentence.          See Appellant’s Brief, pp.

16-17. This claim also fails.

       Initially, Appellant’s underlying claim that he was coerced to waive

certain rights lacks merit. Prior to trial, the trial court conducted a colloquy

with Appellant to make certain Appellant made a knowing, voluntary, and
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11
  We further note Appellant cannot prove prejudice, even if the errors he
complained of occurred. Neither his PCRA petition, nor his brief to this
Court, allege that he suffered any loss of rights or was uninformed as to the
nature of the charges or alleged facts he was facing.



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intelligent waiver of his right to counsel.        See N.T. 1/4/2011, pp. 59-63;

N.T. 1/5/2011, pp. 4-17.           The trial court reviewed Appellant’s right to

counsel, the crimes and possible maximum punishments Appellant faced,

and answered Appellant’s questions.            See N.T. 1/5/2011, pp. 4-17.12 The

trial court further reviewed Appellant’s written waiver of counsel. Id. at 16-

17. Further, at the PCRA hearing, Appellant admitted he signed the waiver

of his right to a jury trial, that he understood the waiver, and that he would

not have lied to the trial court regarding that waiver. See N.T. 7/7/2015, p.

48.

       Further, at the PCRA hearing, trial counsel testified that, based on the

technical defense13 to be proffered at trial, he advised Appellant that a bench

trial, opposed to a jury trial, may benefit Appellant’s case.           See N.T.

7/7/2015, pp. 20-24. This advice represents a reasonable strategic decision

taken by trial counsel.

       Additionally, no reasonable probability of a different outcome exists

based on Appellant’s waiver of a jury trial. The fact that Appellant struck the
____________________________________________


12
  The trial court also appointed Appellant’s defense counsel as stand-by trial
counsel for Appellant. See N.T. 1/5/2011, pp. 5-6.
13
   Appellant’s version of events in this matter was that he injured the victim
while on a binge of crack cocaine use, but that he did not mean to injure the
victim. See N.T. 7/7/2015, p. 21. Counsel felt that the court would be
better equipped than a jury to process the subtle differences between
arguing a lack of mens rea while Appellant was intoxicated by cocaine as
opposed to a negation of mens rea by the use of cocaine, which cannot
negate specific intent in non-homicide crimes in Pennsylvania. See id.



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victim with a baseball bat was never in contention.          Appellant himself

explained that he “never really claimed to be – to be innocent of attacking

[his] girlfriend.”   N.T. 7/7/2015, p. 41.   Instead, Appellant’s tactics were

designed to get him a lesser sentence upon conviction.           Id. at 41-42.

Accordingly, the trial verdict would have been guilty whether delivered by a

judge or a jury.

      Thirdly, Appellant claims trial counsel provided ineffective assistance of

counsel by advising Appellant that his version of events was patently

incredible. See Appellant’s Brief, pp. 17-18. This claim too merits no relief.

      Trial counsel testified at the PCRA hearing that he never advised

Appellant that his story was incredible.     See N.T. 7/7/2015, p. 21.     Trial

counsel testified that he explained to Appellant that they could not argue

that his cocaine use negated his mens rea, but instead would have to argue

that he simply did not intend to hurt the victim. Id. at 21-22. Again, this

advice explained counsel’s reasonable, strategic basis for pursuing the

advised defense of lack of mens rea. Further, contrary to Appellant’s claim

that counsel advised him to perjure himself, counsel expressly testified that

he did not tell Appellant to lie. Id. at 30. The PCRA court viewed counsel’s

testimony as credible.     The PCRA court did not err in finding Appellant’s

ineffective assistance of counsel claim lacked merit.

      Finally, Appellant claims trial counsel provided ineffective assistance by

failing to withdraw when irreconcilable differences arose between he and

Appellant. See Appellant’s Brief, pp. 18-21. This claim also fails.

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     We observe:

     “[S]ubstantial reasons” or “irreconcilable differences” warranting
     appointment of new counsel are not established where the
     defendant merely alleges a strained relationship with counsel,
     where there is a difference of opinion in trial strategy, where the
     defendant lacks confidence in counsel’s ability, or where there is
     brevity of pretrial communications.

Commonwealth v. Floyd, 937 A.2d 494, 497 (Pa.Super.2007) (citing

Commonwealth v. Grazier, 570 A.2d 1054, 1055-56 (Pa.Super.1990)).

     Simply stated, the attorney-client relationship in the instant matter,

while strained, does not rise to the level of irreconcilable differences that

would have required counsel to remove himself from representation. As the

PCRA court noted:

     There is no question that [Appellant] and [t]rial [c]ounsel did not
     have an ideal attorney-client relationship. At one point, their
     relationship deteriorated to the point that they did not speak
     much[,] and [Appellant] chose to represent himself. After that
     [first] trial, in which he was convicted on all charges, [t]rial
     [c]ounsel took it upon himself to contact [Appellant] to
     reconsider him as an attorney. From there, [t]rial [c]ounsel was
     able to obtain a dismissal of the convenience store robbery
     charges, which impressed [Appellant] to the point that he agreed
     to have [t]rial [c]ounsel represent him in the non-jury trial.
     Further, [t]rial [c]ounsel testified that it is not unusual for there
     to be cycles of good and bad periods throughout a typical
     attorney-client relationship. After considering this, it is clear
     that the relationship between [t]rial [c]ounsel and [Appellant]
     does not rise to the level of irreconcilable differences warranting
     withdraw of counsel.

PCRA Opinion, p. 8. This was not error.




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     The PCRA court’s determination is supported by the record and free of

legal error. Accordingly, we affirm the order of the PCRA court dismissing

Appellant’s PCRA petition.

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/22/2016




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