J-S68016-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    RONALD WALLACE                             :
                                               :
                       Appellant               :   No. 480 WDA 2019

             Appeal from the PCRA Order Entered February 28, 2019
     In the Court of Common Pleas of Allegheny County Criminal Division at
                        No(s): CP-02-CR-0006333-2014


BEFORE:      GANTMAN, P.J.E., LAZARUS, J., and PELLEGRINI, J.*

MEMORANDUM BY LAZARUS, J.:                          FILED FEBRUARY 10, 2020

        Ronald Wallace appeals from the order, entered in the Court of Common

Pleas of Allegheny County, dismissing his petition filed pursuant to the Post

Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546.          After careful

review, we affirm.

        On April 26, 2014, Wallace was charged with six counts each of

stalking,1 terroristic threats,2 harassment,3 and intimidation of witnesses or

victims,4 in connection with conduct involving his 21-year-old niece, Krystal

____________________________________________


*   Retired Senior Judge assigned to the Superior Court.

1   18 Pa.C.S.A. § 2709.1(a)(1).

2   18 Pa.C.S.A. § 2706(a)(1).

3   18 Pa.C.S.A. § 2709(a).

4   18 Pa.C.S.A. § 4952(a)-(b).
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Scott. After a three-day trial that concluded on May 29, 2015, a jury convicted

him of all charges. The trial court set forth the facts of this case as follows:

      During the summer of 2013, [Wallace] and his sister, Tammy
      Ruggieri, re-established contact with one another. [Wallace] had
      been in and out of [Ruggieri’s] life throughout the years, and he
      had not been around her, or her family, for quite some time.
      [Ruggieri] was assisting [Wallace] in obtaining an apartment as
      he was getting his life back in order. [Ruggieri] asked her
      daughter, [Scott], to give [Wallace] a chance to be a part of her
      life. [Scott] was 21 years old at the time of her mother’s request,
      and she had not seen [Wallace] since she was approximately ten
      (10) years old.

      At first, [Scott] was excited to build a relationship with [Wallace],
      and the relationship between them was “fine” and “cordial.” At
      the time, [Scott] was attending school full[-]time at Robert Morris
      University and was also employed and working as a bartender at
      McFadden’s. As time went on, the nature of their relationship
      changed dramatically, and for the worse. [Wallace] began to
      excessively call and text [Scott] over the next few months.
      [Scott] became afraid of [Wallace’s] behavior, and she informed
      her mother that the excessive contact was “weirding her out.” In
      addition to the sheer number of calls being problematic, [Scott]
      was concerned and stressed over the fact that [Wallace] would
      become angry when she would not respond to his calls and
      messages. [Ruggieri] became involved in the situation, telling
      [Wallace] that he needed to limit his calls and texts to [Scott]
      because the frequency of his calls and text messages was
      inappropriate.

      Despite this warning, [Wallace’s] behavior continued and
      escalated, becoming more threatening over the next several
      months. [Wallace] was angry at [Scott] after her mother spoke
      with him about the frequency of his contact with [Scott], and he
      responded by calling and texting [Scott] “numerous times a day”
      “all day every day.” In November of 2013, [Scott] grew so
      desperate for the contact to stop that she obtained a Protection
      from Abuse Order (PFA) against [Wallace]. Notwithstanding the
      court order, [Wallace] did not cease contact. In fact, the situation
      appeared to grow worse after [Scott] secured the PFA. In January
      of 2014, [Wallace] left two (2) disturbing voicemails on

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        [Ruggieri’s] work phone. The voicemails were about [Scott] and
        her bartending job at McFadden’s, and they were extremely
        hostile and threatening in nature. Among other things, [Wallace]
        falsely accused [Scott] of being a “stripper” and giving “lap
        dances” at McFadden’s. The messages further warned that “the
        crazy man” was coming for her.         After listening to these
        voicemails, [Scott] became “absolutely terrified” of [Wallace] and
        called the police.

        Although [Wallace] was arrested and taken into custody after the
        January 2014 voicemails, his contact with [Scott] did not cease.
        [Wallace] wrote [Scott] numerous letters from the Allegheny
        County Jail (ACJ), receiving so many that she “lost count.”
        However, there were six (6) letters that [Wallace] sent between
        April 8, 2014, and May 2, 2014 that were particularly threatening.
        The majority of these letters were eight (8) pages long and
        contained writing from the top to bottom of a legal-sized page. In
        these letters, [Wallace] used highly vulgar, disturbing and
        threatening language, acknowledging that he knew he was not
        supposed to be contacting [Scott], and attempting to manipulate
        and guilt her into dropping the charges against him. These letters
        terrified [Scott], and she was afraid for her life. Although she was
        previously a straight “A” student, [Scott] started missing school
        because of the stress generated by the letters. She lost sleep and
        focus. [Wallace’s] behavior resulted in [Scott] suffering a great
        amount of fear, and his threats continue to go through her mind
        “every single day.”

Trial Court Opinion, 2/12/16, at 5-7 (citations omitted).

        On July 15, 2015, Wallace was sentenced to an aggregate term of

seven-to-fourteen years’ imprisonment followed by an eleven-year term of

probation. Id. at 2. Wallace filed a motion to reconsider sentence, which the

court denied on August 26, 2015. Wallace then filed a direct appeal, and our

Court    affirmed   his   judgment   of    sentence   on   December   23,      2016.

Commonwealth v. Wallace, 1486 WDA 2015 (Pa. Super. filed Dec. 23,

2016) (unpublished memorandum). Wallace filed a petition for allowance of



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appeal, which our Supreme Court denied on June 20, 2017. Commonwealth

v. Wallace, 169 A.3d 581 (Pa. 2017) (Table).

      On January 16, 2018, Wallace filed a pro se PCRA petition; the court

appointed PCRA counsel, who filed an amended petition on August 27, 2018,

raising claims of ineffective assistance of counsel. Following an evidentiary

hearing, the court dismissed Wallace’s petition on February 28, 2019. Wallace

timely filed a notice of appeal and court-ordered Pa.R.A.P. 1925(b) concise

statement of errors complained of on appeal.

      On appeal, Wallace presents the following issues for our consideration:

      (1)   Was appellate counsel ineffective for not arguing that the
            evidence was insufficient as a matter of law to prove,
            beyond a reasonable doubt, that [Wallace] committed the
            offense of terroristic threats at counts 11, 15, and 23,
            insofar as the respective letters of April 18, April 21, and
            May 2, 2014, did not threaten to commit any crime of
            violence against [Scott], nor did they contain language
            establishing beyond a reasonable doubt that [Wallace]
            intended to terrorize [Scott]?

      (2)   Was appellate counsel ineffective for not arguing that the
            evidence was insufficient as a matter of law to prove,
            beyond a reasonable doubt, that [Wallace] committed the
            offense of intimidation of a witness at count 9[,] insofar as
            the content of the letter of April 18, 2014, fails to establish
            beyond a reasonable doubt that [Wallace] was intimidating,
            or attempting to intimidate [Scott] from informing or
            reporting information relating to the commission of a crime?

Brief of Appellant, at 4 (capitalization removed).

      Our standard and scope of review for the denial of a PCRA petition are

well-settled. We review the PCRA court’s findings of fact to determine whether

they are supported by the record, and review its conclusions of law to


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determine whether they are free from legal error. Commonwealth v. Spotz,

84 A.3d 294, 311 (Pa. 2014). The scope of our 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. Id.

      In both of his claims, Wallace argues appellate counsel was ineffective

for failing to raise challenges to the sufficiency of the evidence on direct

appeal. The law presumes that counsel was effective, and the burden rests

on the appellant to prove otherwise. Commonwealth v. Ousley, 21 A.3d

1238, 1244 (Pa. Super. 2011). To prevail on an ineffectiveness claim, Wallace

must establish: (1) his underlying claim has arguable merit; (2) appellate

counsel had no reasonable basis for his or her action or inaction; and (3)

appellate counsel’s error prejudiced Wallace such that there is a reasonable

probability the outcome at trial would have been different absent such error.

Commonwealth v. Fears, 86 A.3d 795, 804 (Pa. 2014). “Failure to prove

any prong of this test will defeat an ineffectiveness claim.” Id.

      With regard to the second element, an appellant must show that:

      [I]n light of all the alternatives available to counsel, the strategy
      actually employed was so unreasonable that no competent lawyer
      would have chosen it. We inquire whether counsel made an
      informed choice, which at the time the decision was made
      reasonably could have been considered to advance and protect
      [the] defendant’s interests.

Commonwealth v. Buska, 655 A.2d 576, 582-83 (Pa. Super. 1995). “If

counsel’s chosen course had some reasonable basis, the inquiry ends and




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counsel’s assistance is deemed effective.” Commonwealth v. Williams, 899

A.2d 1060, 1064 (Pa. 2006).

      Here, Wallace has failed to establish that appellate counsel lacked a

reasonable basis for choosing not to raise the sufficiency of the evidence

challenges specified above.    For both ineffectiveness claims, the extent of

Wallace’s argument regarding appellate counsel’s decision is a bald assertion

that “counsel could not have had a reasonable basis” for failing to raise the

sufficiency challenge.    See Brief of Appellant, at 14, 19.         Boilerplate

allegations, such as these, are insufficient to rebut the presumption that

counsel was effective. Commonwealth v. Jones, 815 A.2d 598, 612 (Pa.

2002).   Moreover, the record belies Wallace’s assertion.      See N.T. PCRA

Hearing, 2/27/19, at 6.

      At the PCRA hearing, appellate counsel testified that she chose to forego

the sufficiency claims on direct appeal in order to focus on Wallace’s strongest

and most viable claim, which related to the alleged deprivation of his right to

testify. Id. Although she found the sufficiency challenges to be non-frivolous,

appellate counsel believed that it would be more beneficial for Wallace if she

zealously argued what she perceived to be his strongest claim. Id. Appellate

counsel had concerns that the detailed, fact-heavy analysis necessary to argue

insufficiency of the evidence would have overshadowed and detracted from

the stronger issue on appeal. Id.




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       The Supreme Court of the United States has explicitly held that counsel

need not, and indeed should not, raise every non-frivolous claim on appeal.

Smith v. Robbins, 528 U.S. 259, 288 (2000). Our Supreme Court has also

recognized that counsel “may forego even arguably meritorious issues in favor

of claims which, in the exercise of counsel’s objectively reasonable

professional judgment, offered a greater prospect of securing relief.” Jones,

supra at 613. “This process of ‘winnowing out weaker arguments on appeal

and focusing on’ those more likely to prevail, far from being evidence of

incompetence, is the hallmark of effective appellate advocacy.” Id. at 614

(quoting Jones v. Barnes, 463 U.S. 745, 751-52 (1983)).

       Wallace has failed to establish that appellate counsel had no reasonable

basis for her decision not to raise the sufficiency of the evidence challenges.

Accordingly, appellate counsel cannot be deemed ineffective, and Wallace is

entitled to no relief.5 Williams, supra at 1064.

       Order affirmed.




____________________________________________


5 Furthermore, after a thorough review of the record, the parties’ brief, the
applicable law, and the well-reasoned opinion of Judge Lazzara, we conclude
that Wallace’s underlying sufficiency of the evidence challenges do not have
arguable merit. There was sufficient evidence to prove Wallace guilty of both
terroristic threats and intimidation of a witness or victim where Wallace
directly and indirectly threatened to commit crimes of violence against the
victim and attempted to guilt, manipulate, and intimidate her into dropping
the charges against him and absenting himself from court proceedings. See
Trial Court Opinion, 2/12/16, at 12-32.

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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/10/2020




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