J-S62004-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                       IN THE SUPERIOR COURT OF
                                                          PENNSYLVANIA
                            Appellee

                       v.

TRAVIS HAWKINS,

                            Appellant                   No. 1821 WDA 2014


                 Appeal from the PCRA Order October 20, 2014
               in the Court of Common Pleas of Allegheny County
               Criminal Division at No.: CP-02-CR-0016744-2009


BEFORE: GANTMAN, P.J., JENKINS, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                            FILED DECEMBER 11, 2015

        Appellant, Travis Hawkins, appeals from the order of October 20,

2014, which granted in part and dismissed in part, following a hearing, his

first, counseled petition brought under the Post Conviction Relief Act (PCRA),

42 Pa.C.S.A. §§ 9541-9546.1             On appeal, Appellant claims he received

ineffective assistance of counsel at all stages of the underlying proceedings.

We affirm.

        We take the underlying facts and procedural history in this matter

from this Court’s May 10, 2012 memorandum on direct appeal, the PCRA
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
  The PCRA court granted Appellant’s claim concerning the legality of
sentence and resentenced Appellant on October 20, 2014. (See PCRA Court
Opinion, 7/14/15, at 2).
J-S62004-15


court’s July 14, 2015 opinion, and our independent review of the certified

record.

      On December 16, 2009, the Commonwealth charged Appellant with

robbery, homicide, and related offenses for an incident that occurred on July

7, 2009, wherein Appellant robbed and fatally shot a jitney driver.       On

October 16, 2009, Appellant made a taped statement to police admitting to

his part in the robbery and murder. (See Trial Court Opinion, 7/19/11, at

2). On September 24, 2010, trial counsel, Robert Foreman, Esquire, filed a

motion to suppress Appellant’s statement. On October 5, 2010, following a

hearing, the trial court denied the motion.

      Jury selection began on October 6, 2010.     Immediately prior to the

start of jury selection, Appellant indicated that he wanted new counsel, but

was unable to provide any specific reasons. (See N.T. Trial, 10/06/10, at

49-50). The trial court denied the request. (See id. at 50).

            The trial commenced and the Commonwealth presented
      the testimony of eight witnesses, including the testimony of
      Detective Vonzale Boose concerning his interview of an alleged
      eyewitness, Dana Williams, which occurred on October 9, 2009,
      approximately three months after the shooting.         On cross-
      examination [Appellant]’s counsel asked Detective Boose to
      confirm the date of the interview, in order to emphasize that the
      witness did not come forward until three months after the
      shooting. As Detective Boose left the stand, the Commonwealth
      proceeded to call Dana Williams to the stand. At that point,
      [Appellant] suddenly jumped to his feet and the record reflects
      the following:

            THE [TRIAL] COURT: Thank you.          You can step
            down. Who’s your next witness?


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          [COMMONWEALTH]:          Call Dana Williams to the
          stand.

          (Pause)

          [APPELLANT]:    Oh, no. No. What you say?        F[**]k
          that man.

          THE [TRIAL] COURT: Mr. Woodcock, take the jury
          out. Mr. Woodcock, take the jury out.

          [APPELLANT]: F[**]k that sh[*]t, man.

          THE [TRIAL] COURT: Take the jury out. Go!

          [APPELLANT]: Call me all these niggers and sh[*]t?
          All right. All right. Trying to sell me out with sh[*]t,
          man.

          ([Appellant] taken to the floor by sheriff personnel
          and removed from the courtroom as jury is
          recessed.)

          THE [TRIAL] COURT: Can you enlighten the [trial]
          [c]ourt what just happened here, without violating
          attorney-client privilege?

          [APPELLANT’S COUNSEL]: He was asking me why I
          even asked a question. I tried to explain to him why
          I asked a question.

          THE [TRIAL] COURT: Let’s go in chambers.

           As to the cause of [Appellant]’s outburst, [Appellant’s
     counsel] stated that [Appellant] had asked him why he had
     asked the question of Detective Boose about the date of the
     interview. [Appellant’s counsel] explained to [Appellant] that he
     wanted to emphasize the fact that Dana Williams had waited
     three months after the shooting to come to the police.
     [Appellant] apparently asked [Appellant’s counsel], “What does
     that have to do with it?” and “Why are you asking stupid
     questions?” [Appellant’s counsel] indicated that earlier in the
     day, [Appellant] had apparently complained that he was not
     asking enough questions. Therefore, in response to [Appellant]’s

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     comment about a “stupid question,” counsel responded, “Look.
     You bitch when I don't ask questions. You bitch when I ask
     questions,” at which point [Appellant] erupted and accused
     counsel of using a racial slur. [Appellant’s counsel] denied using
     the racial slur.

           Recognizing the potential for prejudice, an inquiry was
     conducted as to the appropriate manner to proceed.            The
     Commonwealth indicated that it believed that [Appellant] was
     purposely absenting himself and that he could remain in the
     bullpen during the trial. After discussion with counsel, it was
     determined that [Appellant] would be brought back to the
     courtroom, but if he acted inappropriately [ ], he would again be
     removed.     Counsel for [Appellant’s co-defendant] wished to
     consult with her client regarding a motion for a mistrial and the
     Assistant District Attorney wished to consult his superiors.
     [Appellant]’s counsel was advised that he should explain to
     [Appellant] that:

          Here’s your choice. You are going to come back up
          in front of the Judge, and if he thinks you’re going to
          act up, you're going to sit down here, and your trial’s
          going to go on without you.

           A recess was then taken to permit the Assistant District
     Attorney and counsel for [Appellant] and [Appellant’s co-
     defendant] to consult with their clients.

          Court was then reconvened at which time counsel for
     [Appellant’s co-defendant] moved for a mistrial on the basis that
     [Appellant]’s behavior was highly prejudicial to [Appellant’s co-
     defendant], especially in light of the conspiracy charge.
     Considering the nature of the outburst and the fact that
     [Appellant’s co-defendant] had not caused or contributed to the
     outburst, [said] motion for a mistrial was granted [as to the co-
     defendant only].

           [Appellant] was then asked to explain the reason for his
     outburst, at which time he indicated that his counsel had called
     him a “nigger”. The [trial c]ourt indicated to [Appellant] that,
     based on [Appellant’s counsel’s] denial that he had used the
     racial slur and the [trial c]ourt’s experience with [Appellant’s
     counsel], it did not believe that [Appellant’s counsel] had or
     would use the racial slur. Nevertheless, [Appellant] was given

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     the opportunity to return to the courtroom.      [Appellant] was
     advised that:

          If you behave, I will let you stay in the courtroom. If
          you don’t, if you are going to act up, you are going
          to sit down [in] the bullpen. We are just [sic]
          continue the trial against you. You will find out the
          result when it is done.

           After again insisting that he had been called a racial slur,
     the [trial c]ourt specifically asked:

          THE [TRIAL] COURT: Are you going to be able
          to sit in the courtroom?

          [APPELLANT]: No.

          THE [TRIAL] COURT: [Appellant’s counsel], in your
          opinion, he can’t sit in the courtroom?

          [APPELLANT]: No.

          THE [TRIAL] COURT: All right. Take him down [to]
          the bullpen. We’ll continue the trial without him.
          The jury’s going to come down and continue.

            [Appellant]’s counsel then again renewed his [m]otion to
     [w]ithdraw. This [m]otion was denied.

                                   *     *   *

            At the commencement of the trial on October 8th, an
     inquiry was made regarding [Appellant]’s intention about
     testifying in his defense. [Appellant]’s counsel indicated that
     [Appellant] wanted to testify and it was explained by t[he trial
     c]ourt that [Appellant] would be permitted to testify, however,
     he would be restrained while in the courtroom. Th[e trial c]ourt
     stated:

          I really don't want to unshackle this guy because of
          his behavior in the courtroom. He is a danger to the
          jurors and the people in the courtroom by the way
          he acted up and the jury has already seen him
          shackled and dragged out so I don't know how it

                                   -5-
J-S62004-15


           would be prejudicial for him to be shackled while he
           is testifying.

           [Appellant’s counsel] argued that [Appellant] merely
     started to complain and did not physically attack anyone nor did
     he resist the deputies, going to the ground quickly. Th[e trial
     c]ourt responded by indicating that it disagreed with this
     assessment stating:

           I am not taking that risk in my courtroom. He is a
           foot away, and I have no protection, No. 1. No. 2., I
           have fourteen jurors sitting here and I am not going
           to risk this guy going off again. Understand? It is
           too risky. And the way I saw it was this; he defiantly
           rose up against the deputies, was screaming
           obscenities and they had to wrestle him to the
           ground. He didn’t go down easily. I disagree with
           that characterization.

           T[he trial c]ourt also inquired whether or not [Appellant]
     was still waiving his presence in the courtroom until he testified.
     There was no indication that [Appellant], after considering his
     statements from the day before, changed his position regarding
     his willingness or ability to sit in the courtroom.

           At the close of the Commonwealth’s case an inquiry was
     also conducted to determine if [Appellant] intended to testify. At
     that time, [Appellant] was brought to the courtroom and
     [Appellant] was informed that he could return to the courtroom
     to testify, but he would be restrained with shackles. [Appellant],
     despite contending he wanted to testified [sic], refused to testify
     if he was required to be restrained. At no time did [Appellant]
     indicate that he would be willing to act appropriately so that he
     might return to the courtroom. [Appellant] also indicated that
     he did not wish to present character witnesses. [Appellant’s]
     counsel also indicated that he did not want any further
     instruction to the jury that referenced [Appellant]’s outburst or
     his absence from the courtroom.

(Commonwealth       v.   Hawkins,    No.   479   WDA     2011,   unpublished

memorandum at *2-*7 (Pa. Super. filed May 10, 2012) (quoting Trial Court

Opinion, 7/19/11, at 3-7)).

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      On October 8, 2010, the jury found Appellant guilty of murder in the

second degree, robbery, firearms not to be carried without a license, and

conspiracy. On February 8, 2011, the trial court sentenced Appellant to an

aggregate sentence of life imprisonment and a consecutive term of

incarceration of not less than one hundred and eighty nor more than three

hundred and sixty months. On February 9, 2011, the trial court allowed trial

counsel to withdraw, and, the next day, appointed William E. Brennan,

Esquire, to represent Appellant on appeal.

      On March 9, 2011, Appellant filed a timely notice of appeal.         On

appeal, Appellant challenged the trial court’s refusal to allow counsel to

withdraw, its decision to deny Appellant’s motion for a mistrial following his

outburst during trial, and the adequacy of Appellant’s waiver of his presence

at trial. (See Hawkins, supra at *8). On May 10, 2012, this Court denied

Appellant’s direct appeal on the merits. (See id. at *8-*17). On October

16, 2012, the Pennsylvania Supreme Court denied Appellant’s request for

leave to appeal.

      On October 25, 2013, Appellant, acting pro se, filed a PCRA petition.

On October 30, 2013, the PCRA court appointed counsel to represent him.

On March 11, 2014, counsel filed an amended PCRA petition. On October

15, 2014, a PCRA hearing took place.         Appellant and trial counsel both

testified.   The parties read a stipulation into the record as to appellate

counsel’s testimony.    On October 20, 2014, the PCRA court denied the


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petition except for the sentencing issue referenced in note 1, supra.        On

October 24, 2014, PCRA counsel moved to withdraw. On October 29, 2014,

the PCRA court granted the motion and appointed appellate counsel.           On

October 30, 2014, new counsel filed both a notice of appeal and a statement

of errors complained of on appeal.     See Pa.R.A.P. 1925(b).      On July 14,

2015, the PCRA court issued an opinion. See Pa.R.A.P. 1925(a).

      On appeal, Appellant raises the following questions for our review:

      1. Whether [trial counsel] was ineffective in failing to adequately
      consult, after the denial of suppression, with [Appellant] on
      accepting or reject[ing] the plea offer of 25 to 50 years [of]
      incarceration[,] which remained open up to the start of trial and
      where [Appellant’s] chances of obtaining acquittal of [f]irst-
      [d]egree [m]urder and [s]econd [d]egree [m]urder were
      extremely bleak once his statement to police was determined to
      be admissible at trial and where [Appellant] would have
      accepted said offer if he had been advised of the high likelihood
      of conviction of [f]irst-[d]egree [m]urder or [s]econd-[d]egree
      [m]urder?

      2. Whether [trial counsel] was ineffective for failing to timely
      object to the colloquy on [Appellant] waiving his presence at trial
      as inadequate?

      3. Whether [appellate counsel] was ineffective for failing to
      litigate on direct appeal the denial of suppression of [Appellant’s]
      statement to police?

(Appellant’s Brief, at 3).

      Here, Appellant claims he received ineffective assistance of counsel at

all stages of the proceedings below. (See id. at 27-46). It is long settled

that “[o]ur standard of review from the grant or denial of post-conviction

relief is limited to examining whether the PCRA court’s determination is


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supported by the evidence of record and whether it is free of legal error. We

will not disturb findings that are supported by the record.” Commonwealth

v. Ousley, 21 A.3d 1238, 1242 (Pa. Super. 2011), appeal denied, 30 A.3d

487 (Pa. 2011) (citations omitted). “The court’s scope of review is limited to

the findings of the PCRA court and the evidence on the record of the PCRA

court’s hearing, viewed in the light most favorable to the prevailing party.”

Commonwealth v. Duffey, 889 A.2d 56, 61 (Pa. 2005) (citation omitted).

Further, to be eligible for relief pursuant to the PCRA, Appellant must

establish that his conviction or sentence resulted from one or more of the

enumerated errors or defects found in Section 9543(a)(2).             See 42

Pa.C.S.A. § 9543(a)(2). He must also establish that the issues raised in the

PCRA petition have not been previously litigated or waived.           See 42

Pa.C.S.A. § 9543(a)(3).    An allegation of error “is waived if the petitioner

could have raised it but failed to do so before trial, at trial, during unitary

review, on appeal or in a prior state postconviction proceeding.”           42

Pa.C.S.A. § 9544(b).

      Further, counsel is presumed effective, and an appellant bears the

burden to prove otherwise. See Commonwealth v. McDermitt, 66 A.3d

810, 813 (Pa. Super. 2013). The test for ineffective assistance of counsel is

the same under both the Federal and Pennsylvania Constitutions.           See

Strickland v. Washington, 466 U.S. 668, 687 (1984); Commonwealth v.

Jones, 815 A.2d 598, 611 (Pa. 2002). An appellant must demonstrate that:


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(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. See Commonwealth v. Pierce, 786 A.2d 203, 213 (Pa. 2001),

abrogated on other grounds by Commonwealth v. Grant, 813 A.2d 726

(Pa. 2002). “A failure to satisfy any prong of the test for ineffectiveness will

require rejection of the claim.” Jones, supra at 611 (citation omitted).

      In the first claim, Appellant argues that trial counsel was ineffective for

failing to consult adequately with him with respect to a plea offer and advise

him that he had little chance of succeeding at trial after the denial of his

motion to suppress his admissions to the police. (See Appellant’s Brief, at

27-35). We disagree.

      With respect to counsel’s duty to consult with a client about a plea

offer, this Court has stated:

            Defense counsel has a duty to communicate to his client,
      not only the terms of a plea bargain offer, but also the relative
      merits of the offer compared to the defendant’s chances at trial.

                                     *    *    *

            The decision whether to plead guilty or contest a criminal
      charge is probably the most important single decision in any
      criminal case. This decision must finally be left to the client’s
      wishes; counsel cannot plead a man guilty, or not guilty, against
      his will. But counsel may and must give the client the benefit of
      his professional advice on this crucial decision, and often he can
      protect the client adequately only by using a considerable
      amount of persuasion to convince the client that one course or

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       the other is in the client’s best interest. Such persuasion is most
       often needed to convince the client to plead guilty in a case
       where a not guilty plea would be totally destructive.

Commonwealth v. Copeland, 554 A.2d 54, 60-61 (Pa. Super. 1988),

appeal denied, 565 A.2d 1165 (Pa. 1989) (citations omitted).2

       Instantly, trial counsel testified at the PCRA hearing that he conveyed

the Commonwealth’s plea offer to Appellant, discussed it with him, and

advised that it might be in his best interests to accept the offer because he

had little chance of succeeding at trial, regardless of whether or not the trial

court admitted his statement to police. (See N.T. PCRA Hearing, 10/15/14,

at 22-24). Although Appellant testified that he and counsel did not discuss

the offer in detail, he conceded that he was aware of the plea deal and knew

that he was being offered a sentence of not less than twenty-five nor more

than fifty years of incarceration in return for his guilty plea. (See id. at 8).

Appellant also admitted he understood that, when the trial court denied his

motion to suppress, it meant that his statement to police, in which he

admitted to second degree murder and robbery, would be presented to the

jury if he went to trial. (See id. at 9, 12-13). However, Appellant insisted

that trial counsel told him not to accept the guilty plea because “[H]e got

this. Don’t worry about it.” (Id. at 9). Appellant averred that trial counsel
____________________________________________


2
  More recently, the United States Supreme Court discussed claims of
ineffectiveness with respect to counsel’s duty to convey and consult
regarding plea offers. See Missouri v. Frye, 132 S. Ct. 1399, 1405-06
(2012); Lafler v. Cooper, 132 S. Ct. 1376, 1395-96 (2012).



                                          - 11 -
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promised him an acquittal.      (See id. at 13).    He presented no further

evidence or argument regarding trial counsel’s legal advice on the decision

to reject the plea offer and proceed to trial.

      The record reflects that, immediately prior to jury selection, the

Commonwealth read the terms of its offer into the record, stating that

Appellant had initially agreed to accept the offer and then changed his mind.

(See N.T. Trial, at 44-45).     The Commonwealth then informed Appellant

that, if he lost at trial, he would be facing a mandatory life sentence without

the possibility of parole.    (See id. at 45).     Appellant agreed that he

understood this and the terms of the plea offer, and discussed it with

counsel. (See id. at 46-47). Thus, the record does not support Appellant’s

contention that counsel did not adequately discuss the plea deal with him.

      Further, in its decision denying the PCRA petition, the court credited

counsel’s testimony regarding discussions about the plea offer and did not

credit Appellant’s testimony. (See PCRA Court Opinion, 7/14/15, at 5). The

credibility findings of the PCRA court are entitled to great deference. See

Commonwealth v. Martin, 5 A.3d 177, 197 (Pa. 2010), cert. denied, 131

S. Ct. 2960 (2011). We have no authority to disturb a credibility finding, if

the record supports it. See Commonwealth v. Dennis, 17 A.3d 297, 305

(Pa. 2011) (“Indeed, where the record supports the PCRA court’s credibility

determinations, such determinations are binding on a reviewing court.”)

(citation omitted).


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      In light of this record, we agree with the PCRA court’s finding that trial

counsel conveyed the Commonwealth’s plea offer to Appellant and consulted

with him about it. Therefore, we affirm the PCRA court’s denial of relief on

this claim.

      In the second claim, Appellant avers that trial counsel was ineffective

for failing to object to the trial court’s inadequate colloquy with respect to his

right to be present during trial.         (See Appellant’s Brief, at 36-45).

Specifically, Appellant argues that the Pennsylvania Supreme Court’s

decision in Commonwealth v. Vega, 719 A.2d 227, 230 (Pa. 1998),

requires the trial court to conduct a full colloquy to ensure that a defendant

knowingly waives his right to be present at trial.       (See id. at 36).     We

disagree.

      Initially we note that, on direct appeal, Appellant argued that he did

not knowingly waive his right to be present at trial because the trial court

failed to conduct a colloquy.    (See Hawkins, supra at *13).         This Court

found that Appellant had waived the issue of the trial court’s failure to

conduct a colloquy because Appellant did not include it in his Rule 1925(b)

statement.    (See id. at *13-*14).     Nonetheless, this Court addressed the

merits of whether Appellant knowingly waived his right to be present at trial

and concluded he did.      (See id. at *15-*17).      Therefore, this issue was

previously litigated and not subject to PCRA relief.       See 42 Pa.C.S.A. §

9543(a)(3).


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      Moreover, we note that Vega is inapposite. In Vega, prior to the start

of trial, after the trial court refused the defendant’s request for appointment

of new counsel, the defendant stated that he did not wish to be present

during trial. See Vega, supra at 228-29. Our Supreme Court held that a

defendant is entitled to a colloquy to “insure a defendant is aware of the

dangers and disadvantages of waiving his right to be present during trial.”

Id. at 230. However, our Supreme Court limited its decision to cases where

a defendant makes a specific or express waiver of his right to be present at

trial, distinguishing it from cases where “a defendant has impliedly waived

his right to be present at trial through his conduct or voluntary unexplained

absence.” Id. at 229.

      In Commonwealth v. Basemore, 582 A.2d 861 (Pa. 1990), cert.

denied, 502 U.S. 1102 (1992), our Supreme Court addressed the situation

where, as here, a defendant misbehaved in the courtroom.                      While

acknowledging a defendant’s absolute right to be present during every stage

of a criminal trial, our Supreme Court explained:

            . . . a defendant can lose his right to be present at trial if,
      after he has been warned by the judge that he will be removed if
      he continues his disruptive behavior, he nevertheless insists on
      conducting himself in a manner so disorderly, disruptive, and
      disrespectful of the court that his trial cannot be carried on with
      him in the courtroom. Once lost, the right to be present can, of
      course, be reclaimed as soon as the defendant is willing to
      conduct himself consistently with the decorum and respect
      inherent in the concept of courts and judicial proceedings.




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Basemore, supra at 867 (quoting Illinois v. Allen, 397 U.S. 337, 343

(1970)). In Basemore, the defendant made several outbursts, and the trial

court warned him that, if he persisted, he would be removed from the

courtroom. See id. at 867-68. After another outburst, the court had the

defendant removed.     See id. at 868.       However, several hours later, it

informed defendant that, if he agreed not to disrupt the proceedings, he

could return to the courtroom.    See id.    When the defendant refused, he

was again removed, although after agreeing to behave immediately prior to

closing arguments, he was permitted to return to the courtroom. See id.

The Basemore Court held that the trial court had done all that was

required:   (1) warning the defendant that continued disruptive behavior

would result in his removal from the courtroom; (2) giving the defendant the

opportunity to return if he would agree to behave; and (3) advising the jury

that the defendant’s absence was unrelated to his guilt. See id.

      Here, Appellant’s conduct was akin to that of the defendant in

Basemore, therefore he made an implied waiver of his right to be present

at trial. See id. at 867. Because of this, he was not entitled to the type of

colloquy required by Vega, where the defendant made an express waiver of

his right to be present. See Vega, supra at 229. Thus, there was no basis

for trial counsel to object to the trial court’s failure to conduct a colloquy.

We will not find counsel ineffective for failing to make a non-meritorious

objection. See Commonwealth v. Floyd, 484 A.2d 365, 368 (Pa. 1984).


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Therefore, there is no basis to upset the PCRA court’s finding that Appellant

was not entitled to PCRA relief on this basis.

       In his third claim, Appellant argues that appellate counsel was

ineffective for failing to raise the issue of the denial of his motion to

suppress on direct appeal. (See Appellant’s Brief, at 46-47). We disagree.

       Appellant’s argument on this issue is undeveloped. After citing some

boilerplate law on our scope of review of the denial of a motion to suppress,

Appellant baldly states, with no explanation, that it was “reasonably likely”

that the suppression ruling would have been reversed on appeal.            (Id. at

46).   At no point does Appellant actually discuss the suppression hearing

itself, the trial court’s basis for denial of the motion, or why he believes that

he would have been likely to succeed on direct appeal but for counsel’s

failure to raise the issue.     Thus, Appellant has failed to set forth the

ineffectiveness analysis required by Strickland. See Strickland, supra at

687.   Because Appellant has not established any of the three prongs, we

must    deem    counsel’s     assistance   constitutionally   effective.     See

Commonwealth v. Rolan, 964 A.2d 398, 406 (Pa. Super. 2008) (holding

that where appellant fails to address three prongs of ineffectiveness test, he

does not meet his burden of proving ineffective assistance of counsel, and

counsel is deemed constitutionally effective).      Thus, there is no basis to




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upset the PCRA court’s finding that Appellant was not entitled to PCRA relief

on this basis.3


____________________________________________


3
  Moreover, Appellant’s claim is without merit. We have long held that
appellate counsel is not required “to raise and to argue all colorable,
nonfrivolous issues” that a criminal defendant wishes to raise on appeal.
Commonwealth v. Showers, 782 A.2d 1010, 1015-16 (Pa. Super. 2001),
appeal denied, 814 A.2d 677 (Pa. 2002) (citing Jones v. Barnes, 463 U.S.
745 (1983) for proposition that expert appellate advocacy consists of
removal of weaker issues and focus on strong issues; and citing
Commonwealth v. Yocham, 375 A.2d 325 (Pa. 1977) and
Commonwealth Laboy, 333 A.2d 868, 870 (Pa. 1975) in support of the
same view). In finding that this claim lacked merit, the PCRA court stated:

             In the present case, the sole issue to be resolved at the
       suppression hearing was the credibility (of the detective who
       questioned Appellant), who testified that [Appellant] was advised
       of his right to counsel and, having been so informed, voluntarily
       waived this right and gave a recorded statement.              After
       considering the testimony and reviewing the Miranda [v.
       Arizona, 384 U.S. 436 (1966)] rights form signed by [Appellant]
       and listening to [Appellant’s] acknowledgment that his statement
       was     voluntary   on    the   tape-recorded    statement,     the
       determination was made that [Appellant] waived his right to
       counsel. This conclusion is clearly supported by the evidence
       and, therefore, there is no arguable merit to the claim that
       appellate counsel was ineffective for failing to litigate the issue
       on appeal. . . .

(PCRA Ct. Op., 7/14/15, at 11-12). It is settled that, on appeal, we are
bound by a trial court’s factual findings, so long as they are supported by the
record, and must defer to its credibility determinations.                    See
Commonwealth v. Wright, 867 A.2d 1265, 1267 (Pa. Super. 2005),
appeal denied, 879 A.2d 783 (Pa. 2005), cert. denied, 546 U.S. 1104
(2006). Our review of the record, supports the PCRA court’s finding that we
would have had no basis to overturn the trial court’s findings on appeal and,
therefore, appellate counsel was not ineffective for failing to raise this claim.
The PCRA court was correct to deny relief on this basis. See Jones, supra
at 611; Pierce, supra at 213.



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     Accordingly, for the reasons discussed above we find that PCRA court’s

determination is supported by the evidence of record and is free of legal

error. See Ousley, supra at 1242.          Therefore, we affirm the denial of

Appellant’s PCRA petition.

     Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/11/2015




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