J-S19007-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA           :   IN THE SUPERIOR COURT OF
                                        :        PENNSYLVANIA
                                        :
              v.                        :
                                        :
                                        :
 DEVIN SMITH                            :
                                        :
                     Appellant          :   No. 2409 EDA 2018

            Appeal from the PCRA Order Entered July 13, 2018
 In the Court of Common Pleas of Philadelphia County Criminal Division at
                     No(s): CP-51-CR-0010586-2013


BEFORE:    LAZARUS, J., KUNSELMAN, J., and STRASSBURGER*, J.

MEMORANDUM BY LAZARUS, J.:                         FILED APRIL 18, 2019

     Devin Smith appeals from the order, entered in the Court of Common

Pleas of Philadelphia, dismissing his petition filed pursuant to the Post

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

review, we affirm.

     In February 2013, Smith killed Ramona Bell in a Philadelphia “crack

house” by beating her about the head and body. A jury convicted Smith of

third-degree murder on July 10, 2014 and, on November 14, 2014, the court

sentenced him to 20 to 40 years’ incarceration. Smith appealed; this Court

affirmed his judgment of sentence on March 9, 2016. See Commonwealth

v. Smith, 144 A.3d 193 (Pa. Super. 2016) (Table). In doing so, this Court

found Smith’s sole appellate issue—a challenge to the sufficiency of the

evidence—waived for failure to specify any unproven element of third-degree

murder.   The Pennsylvania Supreme Court denied allowance of appeal on

____________________________________
* Retired Senior Judge assigned to the Superior Court.
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August 25, 2016. See Commonwealth v. Smith, 145 A.3d 726 (Pa. 2016)

(Table).

      On January 26, 2017, Smith filed the instant pro se PCRA petition.

Counsel was appointed and filed an amended petition, alleging appellate

counsel’s ineffectiveness for filing an inadequate Pa.R.A.P. 1925(b) statement,

resulting in the waiver of Smith’s appellate claim. Smith requested

reinstatement of his appellate rights nunc pro tunc. The PCRA court dismissed

Smith’s petition on July 18, 2018. This timely appeal follows, in which Smith

raises the following claim for our review:

      Did the PCRA [c]ourt err when it dismissed [Smith’s] [p]ro [s]e
      [p]etition without a hearing and all where [Smith], on the papers,
      had pled and proved that he was entitled to relief?

Brief of Appellant, at 3.

      We begin by noting:

      This Court’s standard of review regarding an order dismissing a
      petition under the PCRA is whether the determination of the PCRA
      court is supported by evidence of record and is free of legal error.
      In evaluating a PCRA court’s decision, our 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. Weatherill, 24 A.3d 435, 438 (Pa. Super. 2011).

      Smith’s claim asserts the ineffectiveness of appellate counsel.        “It is

settled that the test for counsel ineffectiveness is the same under both the

Pennsylvania and Federal Constitutions: it is the performance and prejudice

test set forth in Strickland v. Washington, 466 U.S. 668 [] (1984).”

Commonwealth v. Gribble, 863 A.2d 455, 460 (Pa. 2004).

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      [T]he constitutional ineffectiveness standard requires the
      defendant to rebut the presumption of professional competence
      by demonstrating that: (1) his underlying claim is of arguable
      merit; (2) the particular course of conduct pursued by counsel did
      not have some reasonable basis designed to effectuate his
      interests; and (3) but for counsel’s ineffectiveness, there is a
      reasonable probability that the outcome of the proceedings would
      have been different. A failure to satisfy any prong of the test for
      ineffectiveness will require rejection of the claim.

Commonwealth v. Spotz, 870 A.2d 822, 829–30 (Pa. 2005) (internal

citations omitted).

      In   his   brief,   Smith   recites   the   legal   standards   applicable   to

ineffectiveness claims and then presents the following argument, reproduced

here in its entirety, asserting that, if Smith’s appellate rights were reinstated,

      counsel would have to argue that [Smith] acted without malice.
      While that might be a difficult argument to make, it can be made
      in that, at least in general, [Smith] can be said, perhaps, not to
      have acted out of hardness of heart but out of an instantaneous
      rage and that he did not have the mental state for [m]urder in the
      [t]hird [d]egree, to wit, with malice.

Brief of Appellant, at 8.

      Smith’s argument is woefully insufficient. He completely fails to apply

the facts of this case to any of the three prongs of the Strickland

ineffectiveness test or to provide any evidentiary support for his claims. In

particular, with regard to the “reasonable basis” prong of the Strickland test,

Smith fails to provide any evidence, such as an affidavit from his appellate

counsel, showing why counsel did not challenge the “malice” element of third-

degree murder on appeal. Where a claim is based solely on speculation and

is unsupported by affidavits or other evidence of record, the claim must fail.


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See Commonwealth v. Roney, 79 A.3d 595, 607 (Pa. 2013) (appellant not

entitled to relief on ineffectiveness claim based solely on speculation). See

also Commonwealth v. Marshall, 812 A.2d 539, 548 (Pa. 2002) (appellant

failed to establish reasonable basis prong of ineffectiveness test because, inter

alia, appellant did not proffer affidavits from trial counsel, and did not provide

explanation as to why such affidavits could not be procured).        In addition,

Smith fails to plead or prove that the outcome of trial would have been

different. Indeed, counsel concedes that a claim that Smith acted without

malice “might be a difficult argument to make.” Brief of Appellant, at 8.

      In short, 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, 443

(Pa. 2011). Accordingly, the PCRA court properly denied Smith relief without

a hearing.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/18/19




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