J-S82023-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF                         :    IN THE SUPERIOR COURT OF
 PENNSYLVANIA                            :         PENNSYLVANIA
                                         :
                                         :
              v.                         :
                                         :
                                         :
 ERIC ULYSSES DEAN                       :
                                         :    No. 530 WDA 2017
                    Appellant

                Appeal from the PCRA Order March 15, 2017
             In the Court of Common Pleas of Allegheny County
            Criminal Division at No(s): CP-02-CR-0016733-2012


BEFORE:    BENDER, P.J.E., STEVENS, P.J.E.,* and STRASSBURGER, J.**

MEMORANDUM BY STEVENS, P.J.E.:                    FILED JANUARY 26, 2018

      Appellant Eric Ulysses Dean files this pro se appeal from the order of the

Court of Common Pleas of Allegheny County denying Appellant’s petition

pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-

9546. Appellant raises two claims of ineffectiveness of counsel. We affirm.

      Appellant was arrested in connection with the October 30, 2012 beating

of Martin Dzubinski in McKees Rocks. The PCRA court aptly summarized the

factual background of this case as follows:

     The evidence presented at trial established that on October 30,
     2012, [Appellant] went to Bob’s Tavern on Broadway Avenue in
     McKees Rocks with his friend, Willie Fuller. The pair arrived at
     11:00 a.m. and drank and smoked marijuana throughout the day.
     The victim, Martin Dzubinski, arrived sometime that evening, as
     it was his custom to stop in at the bar for a few beers after work.
     At 7:13 p.m., bar surveillance video showed Dzubinski leaving the
     bar, and [Appellant] following him 35 seconds later. One (1)
     minute and four (4) seconds later, [Appellant] returned and told
____________________________________
* Former Justice specially assigned to the Superior Court.
** Retired Senior Judge assigned to the Superior Court.
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       Fuller that he had knocked somebody out. 1 Fuller and the
       bartender went outside and found Dzubinski unconscious, lying in
       the middle of Broadway Avenue. Paramedics and police were
       called and Dzubinski was transported to Ohio Valley General
       Hospital and then transferred to Allegheny General Hospital the
       same evening, where he remained for 19 days, before being
       transferred to a rehabilitation facility. Dzubinski suffered a severe
       head injury with loss of function and loss of memory. He was
       released to the rehabilitation [facility] with a feeding tube and was
       unable to care for himself. He has since regained some function,
       but will not return to his previous level of functioning.

PCRA Court Opinion, 7/10/17, at 2-3 (citations omitted).

       After a bench trial, the trial judge convicted Appellant of aggravated

assault. On March 11, 2014, Appellant was sentenced to six to twelve years’

imprisonment. Appellant filed a timely post-sentence motion, which the trial

court subsequently denied. After Appellant filed an appeal, this Court affirmed

the judgment of sentence on March 13, 2015.          In this decision, this Court

found, inter alia, that Appellant’s challenge to the discretionary aspects of his

sentence was waived by his failure to include a statement of reasons for

allowance of appeal pursuant to Pa.R.A.P. 2119(f) in his appellate brief.

Appellant did not file a petition for allowance of appeal.

       On September 4, 2015, Appellant filed a pro se PCRA petition. The PCRA

court appointed counsel, who filed an amended petition, arguing that trial
____________________________________________


1 At trial, Appellant testified that on the night of the assault, he followed the
victim outside to ask him why he had crushed Appellant’s beer can on the bar.
Appellant asserted that the victim became angry, called Appellant a racial slur,
and punched Appellant. Appellant admitted that he subsequently punched the
victim in the cheek, causing him to fall to the ground and strike the pavement.
Appellant left the victim lying unconscious in the street and conceded that he
made no attempt to aid the victim or call emergency personnel. N.T. Trial,
12/9/13 - 12/10/13, at 50-52.

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counsel was ineffective in failing to file a petition for allowance of appeal to

the Supreme Court.         On November 18, 2015, the PCRA court reinstated

Appellant’s right to appeal to the Supreme Court. On March 16, 2016, the

Supreme Court denied Appellant’s petition for allowance of appeal.

       On May 3, 2016, Appellant filed the instant, timely pro se PCRA petition.2

The PCRA court appointed counsel, who instead of filing an amended petition,

filed a petition to withdraw his representation along with a Turner “no-merit”

letter. On January 5, 2017, the PCRA court issued an order allowing counsel

to withdraw and providing Appellant with notice of its intent to dismiss the

petition without a hearing pursuant to Pa.R.Crim.P. 907.        On January 25,

2017, Appellant filed a pro se response to the Rule 907 notice. On March 15,

2017, the PCRA court dismissed the petition. This timely appeal followed.

       In reviewing the lower court’s decision to deny Appellant’s PCRA

petition, we examine whether the PCRA court's determination “is supported

by the record and free of legal error.” Commonwealth v. Mitchell, 636 Pa.

233, 243-44, 141 A.3d 1277, 1283–84 (2016).          “[T]o obtain reversal of a

PCRA court's decision to dismiss a petition without a hearing, an appellant

must show that he raised a genuine issue of fact which, if resolved in his favor,
____________________________________________


2 A PCRA petition, including a second or subsequent petition, must be filed
within one year of the date that the judgment of sentence becomes final. See
42 Pa.C.S. § 9545(b)(1). For purposes of the PCRA, “a judgment becomes
final at the conclusion of direct review, including discretionary review in the
Supreme Court of the United States and the Supreme Court of Pennsylvania,
or at the expiration of time for seeking the review.” 42 Pa.C.S. § 9545(b)(3).



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would have entitled him to relief, or that the court otherwise abused its

discretion in denying a hearing.”   Commonwealth v. Paddy, 609 Pa. 272,

291–92, 15 A.3d 431, 442 (2011) (emphasis added).

      On appeal, Appellant raises two claims alleging that trial counsel

rendered ineffective assistance. It is well established that:

             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, 515 Pa. 153, 527 A.2d 973,
      975–76 (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, 597 Pa.
      159, 950 A.2d 945, 954 (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,
      [592 Pa. 698, 927 A.2d 586,] 594 [(2007)]. We will conclude that
      counsel's chosen strategy lacked a reasonable basis only if
      Appellant proves that “an alternative not chosen offered a
      potential for success substantially greater than the course actually
      pursued.” Commonwealth v. Williams, 587 Pa. 304, 899 A.2d
      1060, 1064 (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.

Paddy, 609 Pa. at 291–92, 15 A.3d at 442–43.

      First, Appellant claims that the PCRA court should have held a hearing

on his claim that trial counsel was ineffective for not subpoenaing specific




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witnesses to give expert testimony.      Our Supreme Court has provided the

following standards in reviewing a similar challenge:

      To satisfy the “arguable merit” prong for a claim of ineffectiveness
      based upon trial counsel's failure to call an expert witness, the
      petitioner must prove that an expert witness was willing and
      available to testify on the subject of the testimony at trial, counsel
      knew or should have known about the witness and the defendant
      was     prejudiced    by    the   absence      of  the     testimony.
      Commonwealth v. Chmiel, 612 Pa. 333, 30 A.3d 1111, 1143
      (2011); Commonwealth v. Gibson, 597 Pa. 402, 951 A.2d
      1110, 1133 (2008). Prejudice in this respect requires the
      petitioner to “show how the uncalled witnesses' testimony would
      have been beneficial under the circumstances of the case.”
      Commonwealth v. Sneed, 616 Pa. 1, 45 A.3d 1096, 1109
      (2012) (quoting Gibson, 951 A.2d at 1134). Therefore, the
      petitioner's burden is to show that testimony provided by the
      uncalled witnesses “would have been helpful to the defense.” Id.
      (quoting Commonwealth v. Auker, 545 Pa. 521, 681 A.2d 1305,
      1319 (1996)).

Commonwealth v. Williams, 636 Pa. 105, 137–38, 141 A.3d 440, 460

(2016).

      Specifically, Appellant argues that trial counsel should have called

expert witnesses to testify to the victim’s injuries. First, Appellant wished to

call Dr. Christine Toews, who treated the victim at Allegheny General Hospital.

Appellant argues that Dr. Toews opined in a statement to police that it was

possible that the victim sustained head fractures after the victim had a stroke,

fell, and struck his head. Second, Appellant claims that counsel should have

sought the testimony of a nurse at Ohio Valley General Hospital named

“Chris,” who made a statement to police that when the victim was brought




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into the emergency room that it did not appear that his clothes were “messed

up as if he were assaulted by another.” Appellant’s Brief, at 9.

      Regardless of whether these witnesses were willing, available, and

qualified to give the aforementioned testimony, we agree with the PCRA

court’s assessment that Appellant failed to allege how this testimony would

have been helpful to the defense. Dr. Toews briefly opined that the victim’s

injuries could have been caused by a stroke, but also found it possible that he

was assaulted.    The nurse named “Chris” observed that the victim’s clothes

were not “messed up” when he arrived at the hospital, but admitted that he

could not rule out an assault. Appellant does not challenge the PCRA court’s

finding that this unidentified nurse was not qualified to give an expert opinion

as to the causation of the victim’s injuries.

      Most importantly, Appellant admitted on the witness stand that he

assaulted the victim by punching him in the head, causing him to fall and hit

his head on the concrete. Appellant has failed to allege how he was prejudiced

by the absence of expert testimony such that there is a reasonable probability

that the outcome of the proceedings would have been different but for

counsel's failure to call these witnesses. See Paddy, supra. Accordingly, we

conclude that the PCRA court did not err in denying this claim.

      Second, Appellant argues that trial counsel was ineffective in failing to

preserve his challenge to the discretionary aspects of his sentence by properly

filing a statement pursuant to Pa.R.A.P. 2119(f) in his appellate brief.

Appellant argues that he is not required to satisfy the ineffectiveness set forth

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in Pierce, supra, which requires a demonstration of actual prejudice; instead,

he argues that trial counsel’s inaction should be deemed presumptively

prejudicial as he asserts that counsel had no reasonable basis to refrain from

filing a Rule 2119(f) statement.

      In United States v. Cronic, 466 U.S. 648, 658-61, 104 S.Ct. 2039,

2046-48, 80 L.Ed.2d 657 (1984), the High Court recognized a presumption of

prejudice in holding that there are some circumstances “so likely to prejudice

the accused that the cost of litigating their effect in a particular case is

unjustified.”   Id.   Such circumstances include situations where there was

complete denial of counsel, the state interfered with counsel’s assistance, or

counsel had an actual conflict of interest. Id.; Commonwealth v. Reaves,

592 Pa. 134, 149, 923 A.2d 1119, 1128 (2007). As noted in Reaves, our

Supreme Court has extended the presumption of prejudice in Pennsylvania to

instances where counsel’s lapse ensured the total failure of an appeal

requested by the client, including, (1) where counsel failed to file a requested

direct appeal, see Commonwealth v. Lantzy, 558 Pa. 214, 736 A.2d 564

(1999), (2) where counsel failed to file a requested petition for allowance of

appeal, see Commonwealth v. Liebel, 573 Pa. 375, 825 A.2d 630 (2003),

and (3) where counsel failed to file a statement of matters complained of on

appeal pursuant to Pa.R.A.P. 1925(b), see Commonwealth v. Halley, 582

Pa. 164, 870 A.2d 795, 800 (2005).

      In Reaves, the Supreme Court noted that a trial counsel’s failure to file

a motion for reconsideration of sentence following violation of probation

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proceedings did not warrant a presumption of prejudice as counsel’s lapse did

not ensure the total failure of the appeal, but at most “narrowed the ambit”

of the appeal counsel pursued.     Reaves, 592 Pa. at 149, 923 A.2d 1119,

1128. The Reaves Court emphasized that “[t]he difference in degree between

failures that completely foreclose appellate review, and those which may

result in narrowing its ambit, justifies application of the presumption [of

prejudice] in the more extreme instance.” Id. As Reaves Court concluded

that a presumption of prejudice was not warranted, it required the appellee to

satisfy the Pierce actual prejudice standard. Ultimately, the Reaves Court

reversed this Court’s finding of ineffectiveness, as it concluded that the

appellee failed to show actual prejudice, as the PCRA judge had imposed the

appellee’s sentence and indicated that he would have imposed the same

sentence given the appellee’s “horrendous reporting record.” Id. at 155-56,

932 A.2d at 1132.

      In this matter, as in Reaves, trial counsel’s failure to include a Rule

2119(f) statement in his appellate brief did not result in a total deprivation of

his appellate rights, but narrowed the ambit of his appeal. As a result, we find

that he was required to demonstrate actual prejudice pursuant to Pierce to

successfully raise this ineffectiveness claim on collateral review.

      Moreover, even assuming for the sake of argument that Appellant had

met the first two prongs of the Pierce test in demonstrating that his claim

has arguable merit and that counsel had no reasonable basis for refraining to

file a Rule 2119(f) statement, we agree with the PCRA court’s finding that

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Appellant failed to show actual prejudice, that is, he failed to rebut the

presumption of effectiveness by showing “there is a reasonable probability

that the outcome of the proceedings would have been different but for

counsel's ineffectiveness.” See Paddy, supra.

      In this case, the trial court imposed a standard range sentence after

reviewing a pre-sentence report. We observe that:

      [w]here the sentencing court had the benefit of a presentence
      investigation report (“PSI”), we can assume the sentencing court
      was aware of the relevant information regarding the defendant's
      character and weighed those considerations along with mitigating
      statutory factors. Further, where a sentence is within the standard
      range of the guidelines, Pennsylvania law views the sentence as
      appropriate under the Sentencing Code.

Commonwealth v. Griffin, 65 A.3d 932, 937 (Pa.Super. 2013) (citations

and internal quotation marks omitted). In addition, the trial court set forth

its rationale for imposing the sentence, pointing to the grave harm Appellant

caused the victim and noting Appellant’s extensive criminal record. Moreover,

the trial court doubted Appellant’s ability to overcome substance abuse issues

and to reform his behavior as prior rehabilitation programs and sentences had

proven ineffective. Thus, we have no reason to believe that, had trial counsel

properly included a Rule 2119(f) statement in his appellate brief, that this

statement alone would have led the court to reduce its sentence. Thus, we

conclude that the PCRA court did not err in denying this ineffectiveness claim.

      For the foregoing reasons, we affirm.

      Order affirmed.


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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/26/2018




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