J-S17011-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                       IN THE SUPERIOR COURT
                                                              OF
                                                         PENNSYLVANIA
                          Appellee

                     v.

RICHARD R. RUTH,

                          Appellant                     No. 409 EDA 2017


           Appeal from the PCRA Order Entered January 23, 2017
           In the Court of Common Pleas of Montgomery County
            Criminal Division at No(s): CP-46-CR-0008015-2011


BEFORE: BENDER, P.J.E., LAZARUS, J., and KUNSELMAN, J.

MEMORANDUM BY BENDER, P.J.E.:                             FILED MAY 29, 2018

Appellant, Richard R. Ruth, appeals from the post-conviction court’s January

23, 2017 order denying his first petition under the Post Conviction Relief Act,

42 Pa.C.S. §§ 9541-9546. After careful review, we affirm.

      The PCRA court briefly summarized the facts and procedural history of

Appellant’s case, which we need not reproduce herein.          See PCRA Court

Opinion (PCO), 3/29/17, at 1-2. On appeal, Appellant presents the following

four claims of ineffective assistance of his trial counsel:

      Did the [PCRA] [c]ourt err in denying Appellant’s [p]etition for
      [p]ost-[c]onviction [r]elief where it:

         a) Found that [t]rial [c]ounsel was not ineffective for failing
            to call any [c]haracter [w]itnesses to testify [to]
            Appellant’s reputation for truthfulness and honesty
            and/or his reputation as a peaceful and law abiding
            person?
J-S17011-18


         b) Found that [t]rial [c]ounsel was not ineffective for calling
            a [d]efense [w]itness who had previously suffered a
            conviction for a crimen falsi offense; along with a
            conviction for the offense of [p]ossession [w]ith the
            [i]ntent to [d]eliver a [c]ontrolled [s]ubstance, a crime
            substantially similar to that for which Appellant was being
            tried?

         c) Found that [t]rial [c]ounsel was not ineffective for calling
            a [d]efense [e]xpert [w]itness, who was wholly
            unfamiliar with the facts and circumstances of Appellant’s
            case, to refute the Commonwealth’s [e]xpert [w]itness?

         d) Found that [t]rial [c]ounsel was not ineffective for
            representing Appellant at [t]rial at a time that he was
            abusing controlled substances?

Appellant’s Brief at 5.

      First, “[t]his Court’s standard of review from the grant or denial of post-

conviction   relief   is   limited   to   examining   whether   the   lower   court’s

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

legal error.” Commonwealth v. Morales, 701 A.2d 516, 520 (Pa. 1997)

(citing Commonwealth v. Travaglia, 661 A.2d 352, 356 n.4 (Pa. 1995)).

Where, as here, a petitioner claims that he received ineffective assistance of

counsel, our Supreme Court has directed that the following standards apply:

      [A] PCRA petitioner will be granted relief only when he proves, by
      a preponderance of the evidence, that his conviction or sentence
      resulted from the “[i]neffective 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.” 42 Pa.C.S. § 9543(a)(2)(ii).
      “Counsel is presumed effective, and to rebut that presumption,
      the PCRA petitioner must demonstrate that counsel’s performance
      was deficient and that such deficiency prejudiced him.”
      [Commonwealth v.] Colavita, 606 Pa. [1,] 21, 993 A.2d [874,]
      886 [(Pa. 2010)] (citing Strickland[ v. Washington, 104 S.Ct.
      2053 (1984)]). In Pennsylvania, we have refined the Strickland


                                          -2-
J-S17011-18


       performance and prejudice test into a three-part inquiry. See
       [Commonwealth v.] Pierce, [515 Pa. 153, 527 A.2d 973 (Pa.
       1987)]. Thus, to prove counsel ineffective, the petitioner must
       show that: (1) his underlying claim is of arguable merit; (2)
       counsel had no reasonable basis for his action or inaction; and (3)
       the petitioner suffered actual prejudice as a result.
       Commonwealth v. Ali, 608 Pa. 71, 86, 10 A.3d 282, 291 (2010).
       “If a petitioner fails to prove any of these prongs, his claim fails.”
       Commonwealth v. Simpson, [620] Pa. [60, 73], 66 A.3d 253,
       260 (2013) (citation omitted). Generally, counsel’s assistance is
       deemed constitutionally effective if he chose a particular course of
       conduct that had some reasonable basis designed to effectuate his
       client’s interests. See Ali, supra. Where matters of strategy and
       tactics are concerned, “[a] finding that a chosen strategy lacked
       a reasonable basis is not warranted unless it can be concluded
       that an alternative not chosen offered a potential for success
       substantially greater than the course actually pursued.” Colavita,
       606 Pa. at 21, 993 A.2d at 887 (quotation and quotation marks
       omitted). To demonstrate prejudice, the petitioner must show
       that “there is a reasonable probability that, but for counsel’s
       unprofessional errors, the result of the proceedings would have
       been different.” Commonwealth v. King, 618 Pa. 405, 57 A.3d
       607, 613 (2012) (quotation, quotation marks, and citation
       omitted). “‘[A] reasonable probability is a probability that is
       sufficient to undermine confidence in the outcome of the
       proceeding.’” Ali, 608 Pa. at 86–87, 10 A.3d at 291 (quoting
       Commonwealth v. Collins, 598 Pa. 397, 957 A.2d 237, 244
       (2008) (citing Strickland, 466 U.S. at 694, 104 S.Ct. 2052)).

Commonwealth v. Spotz, 84 A.3d 294, 311-12 (Pa. 2014).

       Before examining Appellant’s claims, we must address a specific aspect

of his case that is unique. As the PCRA court points out, Appellant “raises

ineffectiveness claims against [Gregory] Noonan only, despite the active

presence of [John L.] Walfish[, Esq.,] as co-counsel.” PCO at 4.1 The court
____________________________________________


1 The PCRA court assumes that Appellant “wants the focus of his efforts to win
post-conviction relief to be on Noonan, in light of the latter’s own post-trial
legal woes,” PCO at 5 n.3, which include Noonan’s being “charged in



                                           -3-
J-S17011-18



stresses that, “[t]he records from trial and the PCRA hearing make clear …

that [Attorney] Walfish participated extensively, along with Noonan, in

preparing the defense and representing [Appellant].”     Id. at 5. Thus, the

PCRA court concludes that Appellant “should not be permitted to win post-

conviction relief by claiming only one, but not both, of his two attorneys

rendered ineffective assistance when the record demonstrates Noonan and

[Attorney] Walfish both were actively involved in his defense.” Id. (footnotes

omitted).      Nevertheless, the court goes on to        evaluate Appellant’s

ineffectiveness claims as essentially subsuming the conduct of both Noonan

and Attorney Walfish.

       We agree with the court that Appellant should have framed his claims

as pertaining to both Noonan and Attorney Walfish; however, we disagree that

his failure to do so necessarily defeats his claims. While we are unaware of

any case directly addressing this issue, our Supreme Court has indicated that

co-counsel, and even mere associates in the same law practice, are not

required to raise each other’s ineffectiveness, thus suggesting that co-counsel

are effectively treated as one attorney for ineffectiveness purposes.     See

Commonwealth v. Moore, 805 A.2d 1212, 1215 (Pa. 2002) (citing

Commonwealth v. Fox, 383 A.2d 199, 200 (Pa. 1978)). Thus, although

____________________________________________


Montgomery County with possession of a controlled substance with the intent
to deliver and related offenses,” id. at 2. Noonan was later disbarred. See
Laura McCrystal, Drug-dealing lawyer gets 5-15 years, PHILLY.COM,
http://www.philly.com/philly/news/20150409_Drug-dealing_lawyer_gets_5-
15_years_in_prison.html (last visited May 11, 2018).

                                           -4-
J-S17011-18



Appellant’s ineffectiveness claims are directed only at Noonan, we will treat

them as encompassing the conduct of Attorney Walfish, as well.

       In assessing the merits of Appellant’s ineffectiveness claims in this

fashion, we have examined the certified record, the briefs of the parties, and

the applicable law. Additionally, we have reviewed the thorough and well-

crafted opinion of the Honorable Gary S. Silow of the Court of Common Pleas

of Montgomery County.          We conclude that Judge Silow’s extensive, well-

reasoned opinion accurately disposes of the issues presented by Appellant,

and we discern no error in Judge Silow’s decision to reject Appellant’s

ineffectiveness claims.2       See PCO at 4-14.   Accordingly, we adopt Judge

Silow’s opinion as our own and affirm the order denying Appellant’s PCRA

petition on the grounds set forth therein.

       Order affirmed.




____________________________________________


2 This is especially true where Appellant fails to present any meaningful
discussion of the prejudice he suffered from counsel’s alleged ineffectiveness.
For instance, in Appellant’s first issue, his entire prejudice argument consists
of the following:

             Finally, it is clear that Appellant suffered prejudice, as a
       result of Attorney Noonan’s error, in failing to call any [c]haracter
       [w]itnesses on Appellant’s behalf[,] as there was at least a
       reasonable probability of a different outcome at trial, had the jury
       been instructed on the weight and effect to be given character
       evidence, pursuant to Pa. SSJI (Crim)3.06.

Appellant’s Brief at 20. Appellant reiterates, boilerplate prejudice arguments
for each of his other three issues. See id. at 24, 28, 32.


                                           -5-
J-S17011-18




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/29/18




                          -6-
