J-S62012-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                 IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                             Appellee

                        v.

    ERIC SAMUEL BROADWATER

                             Appellant                No. 587 MDA 2017


                  Appeal from the PCRA Order March 23, 2017
                 In the Court of Common Pleas of Fulton County
                Criminal Division at No: CP-29-CR-0000161-2014


BEFORE: STABILE, MOULTON, and STRASSBURGER, * JJ.

MEMORANDUM BY STABILE, J.:                       FILED DECEMBER 15, 2017

        Appellant, Eric Samuel Broadwater, appeals from the March 23, 2017

order entered in the Court of Common Pleas of Fulton County (“PCRA court”)

denying his petition pursuant to the Post Conviction Relief Act (“PCRA”), 42

Pa.C.S.A. §§ 9541-46. Upon review, we affirm.

        Following a jury trial on May 28, 2015, during which Appellant was

represented by Philip Harper, Esq. (“Attorney Harper”), Appellant was

convicted of two counts of rape.1 Appellant was sentenced to an aggregate

period of 72-240 months’ incarceration on September 8, 2015. Appellant did

not file any post-sentence motions or a direct appeal.


____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
1   18 Pa.C.S.A. § 3121(a)(1), (c).
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       On January 26, 2016, Appellant filed a request for new counsel,

asserting that Attorney Harper was ineffective.       On January 29, 2016, the

PCRA court, viewing Appellant’s request as a first PCRA petition, appointed

Michael Palermo, Jr., Esq. (“Attorney Palermo”), to represent Appellant.

Appellant, pro se, filed a PCRA petition on February 8, 2016, which the PCRA

court took no action on, and forwarded the filing to Attorney Palermo. On

April 21, 2016, Attorney Palermo filed a Turner/Finley2 letter seeking

withdrawal. The PCRA court granted Attorney Palermo’s request to withdraw

on April 29, 2016, and issued a Pa.R.Crim.P. 907 notice to Appellant. On May

20, 2016, Appellant filed a response to the PCRA court’s Rule 907 notice. On

June 15, 2016, the PCRA court, upon review of Appellant’s response to the

Rule 907 notice, appointed Shane Kope, Esq., as counsel for Appellant.

       On October 11, 2016, Appellant, through counsel, filed an amended

PCRA petition alleging ineffective assistance of counsel, Attorney Harper, for

failing to file a direct appeal and failing to call character witnesses at the time

of sentencing.     On October 31, 2016, the Commonwealth filed a response to

the PCRA petition. The PCRA court held a hearing on December 13, 2016,

during which Attorney Harper and Appellant testified. On March 23, 2017, the

PCRA court issued an opinion and order denying Appellant’s amended PCRA

petition. Appellant filed a timely notice of Appeal on April 3, 2017. On April


____________________________________________


2Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth v.
Finley, 550 A2d 213 (Pa. Super. 1988) (en banc).


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5, 2017, the PCRA court directed Appellant to file a concise statement of errors

complained of on appeal. Appellant complied on April 26, 2017, and the PCRA

court issued a Pa.R.A.P. 1925(a) opinion on May 4, 2017.

      Appellant raises two issues on appeal, which we repeat verbatim.

      [I.]   Did the [PCRA court] err by denying Appellant’s amended
             PCRA petition when the [PCRA court] concluded that
             [Appellant] never contacted [Attorney Harper] regarding
             [Appellant’s] desire to file an appeal?

      [II.] Did the [PCRA court] err by denying Appellant’s amended
            PCRA petition when the [PCRA court] concluded that the
            [Appellant] failed to adequately inform [Attorney Harper] of
            the character witnesses he wanted to call at sentencing.

Appellant’s Brief at 4.

      Our standard of review of an order denying a PCRA petition is well

established.

      The findings of a post-conviction court, which hears evidence and
      passes on the credibility of witnesses, should be given great
      deference. We will not disturb the findings of the PCRA court if
      they are supported by the record, even where the record could
      support a contrary holding. Commonwealth v. Sullivan, 472 P.
      129, 371 A.2d 468, 476 (Pa. 1977). This 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. See, e.g., Commonwealth v.
      Meadius, 582 Pa. 174, 870 A.2d 802, 805 (PA. 2005).

Commonwealth v. Jones, 912 A.2d 268, 293 (Pa. 2006).                 “It is well

established that counsel is presumed effective, and a [PCRA] petitioner bears

the burden of proving ineffectiveness.”         Commonwealth v. Reyes-

Rodriguez, 111 A.3d 775, 779-80 (Pa. Super. 2015) (en banc) (quoting

Commonwealth v. Ligons, 971 A.2d 1125, 1137 (Pa. 2009) (alteration in

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original) (additional citations omitted)).       “To prevail on an [ineffective

assistance of counsel] claim, a PCRA petitioner must plead and prove by a

preponderance of the evidence that (1) the underlying claim has arguable

merit; (2) counsel had no reasonable basis for acting or failing to act; and (3)

the petitioner suffered resulting prejudice.” Id. at 780 (citations omitted). If

the petitioner fails to meet any of the Pierce3 prongs, the claim fails. Id.

However, the failure to file a requested direct appeal constitutes per se

ineffective assistance of counsel. See Commonwealth v. Lantzy, 736 A.2d

564, 572 (Pa. 1999).

       Appellant’s first argument is that his testimony at the PCRA hearing

establishes that he requested a direct appeal to be filed on his behalf by

Attorney Harper. See N.T. PCRA Hearing, 12/13/16, at 14, 25-26. He further

argues that Attorney Harper’s failure to file a requested direct appeal

constitutes per se ineffective assistance of counsel.        However, Appellant

neglects to note that Attorney Harper provided conflicting testimony on the

matter.    See id. at 40, 44-45.         The PCRA court found Attorney Harper’s

testimony credible and the findings of the PCRA court are supported by the

record. Thus, Appellant’s first claim fails.

       Appellant’s second issue is that Attorney Harper was ineffective for

failing to call character witnesses at the time of sentencing, specifically Alice

Cutchall, Patricia Miller, Dulce Hall, and Dillon Burger.   Appellant argues that
____________________________________________


3   Commonwealth v. Pierce, 527 A.2d 973, 975 (Pa. 1987).


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he credibly testified at the PCRA hearing that he provided Attorney Harper

with the contact information for these four individuals prior to his sentencing

hearing.     However, once again Appellant fails to reconcile this with the

conflicting testimony by Attorney Harper. See N.T. PCRA Hearing, 12/13/16,

at 42.     Attorney Harper testified that he did not receive any contact

information for Dulce Hall or Dillon Burger, and his files indicated that he does

not have their contact information. Id. The PCRA court found Attorney Harper

credible on this point; therefore, the claim fails as to Dulce Hall and Dillon

Burger.

      With regards to Attorney Harper’s decision to not call Alice Cutchall and

Patricia Miller, Attorney Harper testified that

      they were there to show that he had somebody supporting him,
      behind him.        Their characterization of [Appellant] was not
      flattering. It wasn’t bad. It wasn’t flattering. They indicated to
      me in our conversations that he had been irresponsible. He put
      things off. He didn’t take things seriously and that you know, that
      was one of the difficulties that they had had with him throughout
      -- well, his life since he’s been with them and that -- and that it
      was clearly that they were here to show that he had support, not
      to say that he was such a wonderful person, although I think they
      did obviously love him.

Id. at 43.    The PCRA court found Attorney Harper credible, and therefore he

had an objectively reasonable basis for not calling Alice Cutchall and Patricia

Miller.    “Generally, where matters of strategy and tactics are concerned,

counsel’s assistance is deemed constitutionally effective if he chooses a

particular course that had some reasonable basis designed to effectuate his

client’s interests.”   Commonwealth v. Colavita, 993 A.2d 874, 887 (Pa.


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2010) (quoting Commonwealth v. Howard, 719 A.2d 233, 237 (Pa. 1998)).

Thus, Appellant’s claim fails.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/15/2017




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