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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    TALIQUE Q. MINCEY,                         :
                                               :
                       Appellant               :   No. 564 EDA 2017

                  Appeal from the PCRA Order January 20, 2017
              In the Court of Common Pleas of Philadelphia County
               Criminal Division at No.: CP-51-CR-0003938-2009

BEFORE: DUBOW, J., NICHOLS, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY DUBOW, J.:                            FILED FEBRUARY 22, 2019

        Appellant, Talique Q. Mincey, appeals from the Order entered in the

Philadelphia County Court of Common Pleas dismissing the guilt-phase claims

in his first Petition filed under the Post Conviction Relief Act (“PCRA”), 42

Pa.C.S. §§ 9541-9546.         Appellant challenges the effectiveness of counsel’s

assistance for failing to call character witnesses.      After careful review, we

affirm.

        This Court previously set forth the underlying facts, so we will not repeat

them here.        See Commonwealth v. Mincey, No. 1871 EDA 2011,

unpublished memorandum at 1-6 (Pa. Super. filed July 18, 2012). Briefly, on

May 24, 2011, a jury convicted Appellant of First-Degree Murder, Carrying a

Firearm Without a License, and Possession of an Instrument of Crime1 in

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1   18 Pa.C.S. § 2502(a); 18 Pa.C.S. § 6106; and 18 Pa.C.S. § 907, respectively.
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connection with the October 22, 2008 shooting of Thomas Fredrick in

Philadelphia.    On July 8, 2011, the trial court sentenced Appellant to the

mandatory term of life imprisonment without parole.

       Appellant filed a timely direct appeal, and this Court affirmed Appellant’s

Judgment of Sentence. Id. On May 29, 2013, our Supreme Court denied

allowance of appeal. Commonwealth v. Mincey, 67 A.3d 795 (Pa. 2013).

       On December 2, 2013, Appellant filed a pro se PCRA Petition, his first.

The PCRA court appointed counsel, who filed an Amended PCRA Petition on

July 9, 2016.     Appellant claimed, inter alia, that: (1) his trial counsel was

ineffective for failing to call available character witnesses; and (2) his sentence

was illegal pursuant to Miller v. Alabama, 567 U.S. 460 (2012), and

Montgomery v. Louisiana, 136 S.Ct. 718 (2016).2 The Commonwealth filed

a Motion to Dismiss arguing that Appellant’s guilt-phase PCRA claims did not

merit relief, but conceding that Appellant is entitled to relief pursuant to Miller

and Montgomery.

       On January 20, 2017, the PCRA court dismissed the instant PCRA

Petition without a hearing after providing notice pursuant to Pa.R.Crim.P. 907



____________________________________________


2 Counsel annexed Appellant’s certified birth certificate showing his date of
birth was January 24, 1991. Appellant was 17 years, 8 months’ old when he
committed his crime. In Miller, the U.S. Supreme Court held that it is
unconstitutional for state courts to impose an automatic life sentence without
possibility of parole upon a homicide defendant for a murder committed while
the defendant was under 18 years of age. The United States Supreme Court
held in Montgomery that its decision in Miller applies retroactively.

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with respect to Appellant’s ineffective assistance of counsel claim. The PCRA

court granted but stayed Appellant’s sentencing issue under Miller and

Montgomery pending appeal.       Order, 1/20/17, citing Commonwealth v.

Bryant, 780 A.2d 646, 648 (Pa. 2001) (directing that review of a PCRA court’s

decision denying guilt-phase relief should precede the imposition of a new

sentence by the trial court).

      Appellant filed a timely Notice of Appeal. Both Appellant and the PCRA

court complied with Pa.R.A.P. 1925.

      Appellant presents the following issue for our review:

      Whether the PCRA court violated paragraph (1) of Rule 907 of
      Pa.R.Crim.P. by summarily dismissing [Appellant’s] PCRA petition
      without evidentiary hearing, where there was a genuine issue of
      material fact as to whether [Appellant] was denied the effective
      assistance of counsel as guaranteed under the United States and
      Pennsylvania Constitutions, when trial counsel failed to present
      character witnesses to testify as to [Appellant’s] reputation for
      peacefulness and non-violence.

Appellant’s Brief at 4.

      We review the denial of a PCRA Petition to determine whether the record

supports the PCRA court’s findings and whether its order is otherwise free of

legal error. Commonwealth v. Fears, 86 A.3d 795, 803 (Pa. 2014). This

Court grants great deference to the findings of the PCRA court if they are

supported by the record. Commonwealth v. Boyd, 923 A.2d 513, 515 (Pa.

Super. 2007).    We give no such deference, however, to the court’s legal

conclusions.    Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa. Super.

2012).

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      There is no right to a PCRA hearing; a hearing is unnecessary where the

PCRA court can determine from the record that there are no genuine issues of

material fact.    Commonwealth v. Jones, 942 A.2d 903, 906 (Pa. Super.

2008). “With respect to the PCRA court’s decision to deny a request for an

evidentiary hearing, or to hold a limited evidentiary hearing, such a decision

is within the discretion of the PCRA court and will not be overturned absent

an abuse of discretion.” Commonwealth v. Mason, 130 A.3d 601, 617 (Pa.

2015).

      The   law    presumes   counsel    has   rendered    effective   assistance.

Commonwealth v. Rivera, 10 A.3d 1276, 1279 (Pa. Super. 2010).                 The

burden of demonstrating ineffectiveness rests on Appellant. Id. To satisfy

this burden, Appellant must plead and prove by a preponderance of the

evidence 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 challenged

proceeding would have been different.” Commonwealth v. Fulton, 830 A.2d

567, 572 (Pa. 2003) (citations omitted). Failure to satisfy any prong of the

test will result in rejection of the appellant’s ineffective assistance of counsel

claim. Commonwealth v. Jones, 811 A.2d 994, 1002 (Pa. 2002).




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      Appellant claims that counsel was ineffective for failing to call witnesses

to testify about his good character, i.e., that he was peaceful and law abiding.

Appellant’s Brief at 14-23.

      To obtain relief on a claim that counsel was ineffective for failing to call

a potential witness, the PCRA petitioner must establish that: “(1) the witness

existed; (2) the witness was available to testify for the defense; (3) counsel

knew of, or should have known of, the existence of the witness; (4) the

witness was willing to testify for the defense; and (5) the absence of the

testimony of the witness was so prejudicial as to have denied the defendant a

fair trial.” Commonwealth v. Washington, 927 A.2d 586, 599 (Pa. 2007).

      As an initial matter, a petitioner must name and identify with specificity

the alleged witnesses. See Commonwealth v. Brown, 767 A.2d 576, 583-

84 (Pa. Super. 2001); Commonwealth v. Copenhefer, 719 A.2d 242, 254

(Pa. 1998) (holding petitioner not entitled to relief where he failed to “set forth

the name of a single person who was willing to testify on his behalf as a

character witness”). “The bare assertion that counsel failed to call unnamed

witnesses is an insufficient basis upon which to grant relief.” Commonwealth

v. Aycock, 470 A.2d 130, 134 (Pa. Super. 1983).

      After carefully reviewing the certified record, including Appellant’s pro

se and Amended PCRA Petitions, we conclude that Appellant has failed to

identify by name any alleged witness supporting his allegations.             Since

Appellant did not identify any character witnesses in any way, he could not


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prove that they in fact existed, that trial counsel was aware, or should have

been aware, of them, or that they were available for trial.          As a result,

Appellant cannot prevail on his claim of ineffective assistance of trial counsel

for failing to locate or call these unidentified witnesses at trial. Thus, the PCRA

court did not abuse its discretion in denying Appellant’s guilt-phase PCRA

claims without an evidentiary hearing.

      The record supports the PCRA court’s findings and its Order is otherwise

free of legal error. Accordingly, we affirm.

      Order affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/22/19




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