J-S53012-19


 COMMONWEALTH OF PENNSYLVANIA               :    IN THE SUPERIOR COURT OF
                                            :         PENNSYLVANIA
                                            :
              v.                            :
                                            :
                                            :
 SHAWN WILLIAMS                             :
                                            :
                     Appellant              :    No. 2825 EDA 2018

           Appeal from the PCRA Order Entered August 22, 2018
  In the Court of Common Pleas of Philadelphia County Criminal Division at
                     No(s): CP-51-CR-0012558-2010

BEFORE: OLSON, J., STABILE, J., and NICHOLS, J.

MEMORANDUM BY OLSON, J.:                                       Filed: May 7, 2020

      Appellant, Shawn Williams, appeals from an order entered on August 22,

2018, which dismissed his first petition for collateral relief filed pursuant to the

Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. We affirm.

      On previous appeal, we summarized the facts of this case as follows.

      The victim, A.H., was thirteen[-]years[-]old on August 17, 2010,
      the day of the attack. [On t]he evening of August 16, 2010, A.H.
      was at the Philadelphia[, Pennsylvania] home [that] her sister,
      [M.K.], shared with her husband, Appellant, and their baby
      daughter. At approximately 11:00 p.m., Appellant and [M.K.]
      began to argue, and about an hour later, Appellant evicted [M.K.]
      from the house. She was not permitted to take either the baby or
      her sister with her.

      A.H. was watching television with her niece. Shortly after [M.K.]
      left, A.H. put her niece to bed. As A.H. was returning to the first
      floor to turn off the television, Appellant came into the hallway.
      A.H. described what occurred next, as follows. Appellant “grabbed
      my right arm and [] pulled me into the [bed]room, and he put
      both hands on my shoulder[s] and pushed me on the bed.” A.H.
      told him to “get off” and pushed him away. Appellant rebuked the
      child’s attempt to avoid the attack. A.H. testified that she refused
      Appellant’s demand to remove her clothing, so Appellant “took
      them off for me. I kept trying to pull them up.” Appellant inserted
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      his finger into the victim’s vagina, and then placed his mouth on
      her vagina. A.H. continued to push and scratch Appellant and tell
      him to get off her. Appellant ignored A.H., and then inserted his
      penis into her vagina. A.H. said, “[i]t hurt and it was a lot of
      pressure.” A.H. reported that the pain from Appellant’s penis was
      a nine on a scale of one to ten. Appellant also placed his hands
      and mouth on her breasts. At that point, Appellant placed a pillow
      over A.H.’s face, and she ceased screaming at him.

      When Appellant stopped his assault, A.H. dressed herself and
      retrieved her niece, who had been crying and screaming during
      the crime. She went downstairs with the child and began to watch
      television. Then, Appellant “came downstairs and said if I [told]
      anybody, he[] [would] kill me and he said that he[] [was] going
      to kill my family.” Eventually, A.H. fell asleep in her niece’s room.

      A.H.’s mother came to pick her up at approximately 7:00 a.m. on
      August 17th. After Appellant left the house, A.H. immediately told
      her mother about the assault, and they went to the police station.
      Police transported [A.H.] to the hospital, where she was physically
      examined. Her vagina still hurt and she “could [not] use the
      bathroom.” A.H. reported that, at the hospital, the pain continued
      to be a nine.

                                       ***

      [Following a non-jury trial conducted on May 24-25, 2011,] Appellant
      was convicted of [rape, unlawful contact with a minor, unlawful
      restraint, and endangering the welfare of a child]. Appellant was
      sentenced to ten to [20] years[’] incarceration for rape and a
      consecutive term of five to ten years in jail for unlawful contact with
      a minor. Concurrent sentences were imposed [for] the other two
      crimes[.]


Commonwealth v. Williams, 106 A.3d 179 (Pa. Super. 2014) (unpublished

memorandum), at 1-4.

      Thereafter, Appellant appealed to this Court and we affirmed his judgment

of sentence on August 28, 2014. Id. Appellant did not seek further review. On

June 15, 2015, Appellant filed his first PCRA petition pro se. Appellant’s PCRA

Petition, 6/15/15, at 1-29. Thereafter, Appellant retained private counsel who


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filed two supplemental PCRA petitions on his behalf. Appellant’s Supplemental

PCRA Petition, 12/15/16, at 1-4; Appellant’s Supplemental PCRA Petition,

1/31/18, at 1-2. On July 17, 2018, the PCRA court provided Appellant with notice

that it intended to dismiss his PCRA petition in 20 days without holding a hearing

because it determined that Appellant’s claims lacked merit. PCRA Court Order,

7/17/18, at 1; see Pa.R.Crim.P. 907(1). The PCRA court dismissed Appellant’s

petition on August 22, 2018.

       On September 14, 2018, Appellant filed a timely pro se notice of appeal to

this Court, even though he was still represented by counsel. Appellant’s Notice

of Appeal, 9/14/18, at 1. Appellant then filed his brief and reproduced record in

this Court pro se, despite the fact that Appellant’s counsel neither requested nor

received permission to withdraw. Accordingly, on October 23, 2019, this Court

vacated the PCRA court’s dismissal order and remanded this case for the PCRA

court to conduct a Grazier1 hearing to determine whether Appellant knowingly,

voluntarily, and intelligently waived his right to a counseled PCRA appeal.

Commonwealth v. Williams, 222 A.3d 863 (Pa. Super. 2019) (unpublished

memorandum), at 1-7.         Thereafter, on November 26, 2019, the PCRA court

granted PCRA counsel’s motion to withdraw. PCRA Court Order, 11/26/19, at 1.

The PCRA court then appointed counsel to represent Appellant on the instant

appeal.     On February 20, 2020, this Court issued an order requiring
____________________________________________


1 Commonwealth v. Grazier, 713 A.2d 81, 82 (Pa. 1998) (holding that
“[w]hen a waiver of the right to counsel is sought at the post-conviction and
appellate stages, an on-the-record determination should be made that the
waiver is a knowing, intelligent, and voluntary one.”).

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court-appointed counsel to submit an appellate brief or other submission within

20 days. Order, 2/20/20, at 1. Appellant timely complied.

      Appellant raises the following issues on appeal:

        I.   Whether the PCRA court erred [in] dismissing [Appellant’s]
             PCRA petition when evidence was presented that trial
             counsel was ineffective for failing to call as a witness the
             medical professional that examined the complainant, and
             stipulating to medical records that allowed the prosecutor to
             present incorrect inferences to the finder of fact[?]

       II.   Whether the PCRA court erred [in] dismissing [Appellant’s]
             PCRA petition when evidence was presented that trial
             counsel was ineffective for failing to request a mistrial
             because police detectives lost [complainant’s] rape kit []
             and [Appellant’s] [cellular tele]phone [] after collecting both
             as evidence[?]

      III.   Whether the PCRA court erred [in] dismissing [Appellant’s]
             PCRA petition when evidence was presented that trial
             counsel was ineffective for failing to subpoena and obtain
             exculpatory evidence[?]

      IV.    Whether the PCRA court erred [in] dismissing [Appellant’s]
             PCRA petition when evidence was presented that [direct
             appeal] counsel was ineffective for failing to preserve and
             [challenge]  the   []constitutionality    of    [Appellant’s]
             mandatory sentence [on appeal?]

       V.    Whether the PCRA court erred by failing to grant an
             evidentiary hearing[?]


Appellant’s Brief at 7.

      Our standard of review is as follows:

      As a general proposition, an appellate court reviews the PCRA
      court's findings to see if they are supported by the record and free
      from legal error. The court's scope of review is limited to the
      findings of the PCRA court and the evidence on the record of the


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      PCRA court's hearing, viewed in the light most favorable to the
      prevailing party.

Commonwealth v. Hammond, 953 A.2d 544, 556 (Pa. Super. 2008)

(citations and quotations omitted).

      In issues one through four, Appellant asserts a variety of ineffective

assistance of counsel claims. Our Supreme Court previously explained:

      To prevail in a claim of ineffective assistance of counsel, a
      petitioner must overcome the presumption that counsel is
      effective by establishing all of the following three elements, as set
      forth in Commonwealth v. Pierce, 527 A.2d 973, 975–[9]76
      ([Pa.] 1987): (1) the underlying legal claim has arguable merit;
      (2) counsel had no reasonable basis for his or her action or
      inaction; and (3) the petitioner suffered prejudice because of
      counsel's ineffectiveness. Commonwealth v. Dennis, 950 A.2d
      945, 954 ([Pa.] 2008). With regard to the second, reasonable
      basis prong, “we do not question whether there were other more
      logical courses of action which counsel could have pursued;
      rather, we must examine whether counsel's decisions had any
      reasonable basis.” [Commonwealth v. Washington, 927 A.2d
      586, 594 (Pa. 2007)]. We will conclude that counsel's chosen
      strategy lacked a reasonable basis only if [the a]ppellant proves
      that “an alternative not chosen offered a potential for success
      substantially greater than the course actually pursued.”
      Commonwealth v. Williams, 899 A.2d 1060, 1064 ([Pa.] 2006)
      (citation omitted). To establish the third, prejudice prong, the
      petitioner must show that there is a reasonable probability that
      the outcome of the proceedings would have been different but for
      counsel's ineffectiveness. Dennis, supra at 954. We stress that
      boilerplate allegations and bald assertions of no reasonable basis
      and/or ensuing prejudice cannot satisfy a petitioner's burden to
      prove that counsel was ineffective.

Commonwealth v. Paddy, 15 A.3d 431, 442-443 (Pa. 2011) (parallel

citations omitted).




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       We will address appellate issues one through three together, as all relate

to trial counsel’s alleged ineffectiveness. Herein, Appellant first contends that

trial counsel was ineffective because counsel stipulated to the admissibility of

certain medical records and failed to call the nurse who examined A.H. as a

witness. Appellant’s Brief at 11. Next, Appellant alleges that trial counsel was

ineffective by failing to request a mistrial after the Commonwealth claimed

that it lost both the rape kit and Appellant’s cellular telephone. Id. at 12.

Lastly, Appellant argues that trial counsel was ineffective for failing “to make

any attempt to obtain [Appellant’s cellular telephone]” or A.H.’s rape kit as

both allegedly contained exculpatory evidence.2           Id. at 12 and 14.    Per

Appellant,     “no    competent       lawyer”    would   have   “[i]gnor[ed]   [the

aforementioned] admissible evidence” and “failed to request a mistrial” in light

of the Commonwealth’s actions. Id. at 12.



____________________________________________


2 In his appellate brief, Appellant also argues that he is entitled to relief under
42 Pa.C.S.A. § 9543(a)(1) (explaining that a petitioner is entitled relief if he
pleads and proves that a “violation of the Constitution of this Commonwealth
or the Constitution or laws of the United States 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”). Appellant
bases this claim on the Commonwealth’s failure to produce the rape kit and
Appellant’s cellular telephone at trial. Appellant’s Brief at 14. Appellant,
however, did not raise this issue on direct appeal. As such, it is waived. See
42 Pa.C.S.A. § 9544(b) (“an issue is waived if the petitioner could have raised
it but failed to do so before trial, at trial, during unitary review, on appeal or
in a prior state post-conviction proceeding.”). Although we do not consider
these claims as freestanding issues, we shall review them within the context
of a challenge to counsel’s effectiveness, which could not have been raised on
direct appeal.

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       In each instance mentioned above, however, Appellant fails to

demonstrate how counsel’s alleged failures resulted in prejudice.       Indeed,

Appellant makes no argument that counsel’s actions effected the outcome of

the proceedings and, instead, baldly asserts that the “totality of counsel’s

deficiencies significantly undermines any level of confidence in the legitimacy

of the outcome of the trial.” Id. at 12. “[B]ald assertions of . . . ensuing

prejudice[, however,] cannot satisfy [Appellant’s] burden to prove that

counsel was ineffective.”       Paddy, 15 A.3d at 443.   Rather, Appellant was

required to demonstrate how “counsel's ineffectiveness was of such

magnitude that it ‘could have reasonably had an adverse effect on the

outcome of the proceedings.’”          Commonwealth v. Charleston, 94 A.3d

1012, 1019 (Pa. Super. 2014), quoting Pierce, 527 A.2d 973 at 977. In view

of the victim’s testimony, Appellant’s bald assertions do not demonstrate that

counsel’s actions resulted in prejudice or undermined confidence in the

outcome of Appellant’s trial. Hence, his claims are meritless.

       Next, Appellant argues that direct appeal counsel provided ineffective

assistance by failing to preserve a claim challenging the “imposition of the

mandatory sentence [as] unconstitutional.”       Appellant’s Brief at 13.   Upon

review, however, it is clear that Appellant did not receive a mandatory

minimum sentence.3 Accordingly, Appellant’s claim that direct appeal counsel

____________________________________________


3We note that, on direct appeal, Appellant’s counsel argued that his sentence
was “excessive ‘under the circumstances.’” Commonwealth v. Williams,



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was ineffective for failing to challenge the imposition of his mandatory

sentence as unconstitutional is without merit.        Commonwealth v. Spotz,

896 A.2d 1191, 1211 (Pa. 2006) (“[C]ounsel will not be deemed ineffective

for failing to raise a meritless claim.”).

          Lastly, Appellant claims that the PCRA court erred in dismissing his PCRA

petition without an evidentiary hearing. Appellant argues that he “raised five

significant instances of trial counsel’s ineffectiveness and one instance of

[direct appeal] counsel’s [ineffectiveness].” Appellant’s Brief at 15. As such,

Appellant claims that he is entitled to an evidentiary hearing. We disagree.

          There “is no absolute right to an evidentiary hearing on a PCRA petition.”

Commonwealth v. Jones, 942 A.2d 903, 906 (Pa. Super. 2008). Rather, a

PCRA court “has the discretion to dismiss a petition without a hearing when

the court is satisfied ‘that there are no genuine issues concerning any material

fact.’”    Commonwealth v. Roney, 79 A.3d 595, 605 (Pa. 2013) (citation

omitted). Notably, this rule applies to claims of ineffective assistance. Id.

Indeed, our Supreme Court previously “stress[ed] 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.’”              Id. (citation

____________________________________________


106 A.3d 179 (Pa. Super. 2014) (unpublished memorandum) at 17 (citation
omitted).    To support this claim, counsel asserted that “‘a mandatory
minimum sentence applied to Appellant’s conviction’ for rape by forcible
compulsion” and that “the mandatory minimum was a ‘sufficient sentence.’”
Id. at 18 (citation omitted). This Court, however, explained that Appellant
“incorrect[ly]” stated that his conviction for rape by forcible compulsion
resulted in the imposition of a mandatory minimum sentence. Id.

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omitted). Accordingly, if a PCRA court can determine – without an evidentiary

hearing – that “one of the prongs [of an ineffective assistance claim] is not

met, then no purpose would be advanced by holding an evidentiary hearing.”

Commonwealth v. Jones, 942 A.2d at 906.

      As demonstrated above, each of Appellant’s ineffective assistance of

counsel claims are meritless. We therefore conclude that the PCRA court did

not err in dismissing Appellant’s PCRA petition without a hearing.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/7/20




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