J-S26019-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,            :     IN THE SUPERIOR COURT OF
                                         :          PENNSYLVANIA
                          Appellee       :
                                         :
            v.                           :
                                         :
MELVIN BLAMO,                            :
                                         :
                          Appellant      :     No. 1519 EDA 2013


             Appeal from the PCRA Order Entered April 26, 2013,
            In the Court of Common Pleas of Philadelphia County,
              Criminal Division, at No. CP-51-CR-0704391-2006.


BEFORE: BENDER, P.J.E., SHOGAN and FITZGERALD*, JJ.

MEMORANDUM BY SHOGAN, J.:                         FILED AUGUST 27, 2014

      Appellant, Melvin Blamo, appeals from the denial of his petition filed



9546. We affirm.

      We previously summarized the relevant facts and procedural history of

this appeal as follows:

                                          -
      the checking account of Alhaji Tholley. On June 22, 2006, Co-
      defendant, Appellant, and approximately ten cohorts confronted
      Mr. Tholley at a local park. The men approached Mr. Tholley,
      surrounded him, and brandished firearms. Co-defendant warned
      Mr. Tholley not to appear in court to testify against Co-defendant
      in the theft case. Following this warning, the men beat Mr.

      attempted to intervene. At that point, Mr. Tholley and Mr.
      Dukaray fled. During their flight, one of the assailants drew his
      weapon, opened fire, and shot Mr. Dukaray in the back. Mr.
      Dukaray required hospitalization for his injuries.

____________________
*Former Justice specially assigned to the Superior Court.
J-S26019-14




           Appellant and Co-defendant proceeded to a joint trial on
     May 20, 2009.2 Following jury selection, the Commonwealth
     informed the court that it could not locate Mr. Tholley, and it did
     not expect him to appear at trial.            Consequently, the

                         -
     receiving evidence regarding the Commonweal
     locate Mr. Tholley, the court permitted the introduction of Mr.


     testimony into the record. Mr. Tholley surprised everyone and
     actually appeared at trial to testify in person on May 22, 2009.
     At the conclusion of trial, the jury found Appellant guilty of
     aggravated assault, retaliation against a witness, intimidation of
     a witness, and conspiracy.
           2
            Co-defendant absconded prior to the start of trial,
           and the court tried him in absentia.

            On June 30, 2009, the court sentenced Appellant to an
     aggregate term of one hundred twenty-three (123) to three
     hundred sixty (360) months of imprisonment. Appellant timely
     filed a motion for reconsideration of sentence on July 7, 2009.
     Thereafter, Appellant obtained new counsel. On August 31,
     2009, new counsel filed a supplemental post-sentence motion on

     alleged trial counsel was ineffective for failing to present
     character witnesses. The court subsequently determined the
     ineffectiveness challenge should be deferred to collateral review.

     reconsideration of sentence was denied by operation of law.

           Appellant timely filed a notice of appeal on December 31,
     2009. On January 21, 2010, the court ordered Appellant to file a
     concise statement of matters complained of on appeal, pursuant
     to Pa.R.A.P. 1925(b). Appellant subsequently complied with the




                                     -2-
J-S26019-14



Commonwealth v. Blamo, 29 A.3d 826, 43 EDA 2010 (Pa. Super. 2011)

(unpublished memorandum at 1 3). We affirmed the judgment of sentence

on April 8, 2011.

      Appellant filed a counseled petition pursuant to the PCRA on May 7,

2012, which, after notice, the PCRA court dismissed without a hearing on

April 26, 2013. Appellant filed a timely notice of appeal. The PCRA court

directed Appellant to file a concise statement of the errors complained of on

appeal within twenty-one days of the date of the order pursuant to Pa.R.A.P.

1925(b), or by July 15, 2013. The record certified to us on appeal revealed

that while no such statement was filed or docketed, it appeared that a Rule

1925(b) statement had been served upon the Philadelphia District Attorney

on July 15, 2013. Thus, on July 11, 2014, this Court directed Appellant to

file of record the Rule 1925(b) statement previously served on the

Commonwealth.       The resulting supplemental record was then certified and

transmitted to this Court.

      Appellant raises the following single issue on appeal:


      he was afforded ineffective assistance of trial counsel whose
      decision to forego the presentation of readily available character
      witnesses was objectively unreasonable and prejudiced
      appellant.




                                      -3-
J-S26019-14



         Our standard of review of an order denying PCRA relief is whether the

findings of the PCRA court are supported by the record and are free of legal

error.        Commonwealth v. Spotz, 18 A.3d 244, 259 (Pa. 2011);

Commonwealth v. Hernandez, 79 A.3d 649, 651 (Pa. Super. 2013). It is



his conviction or sentence resulted from one or more of the enumerated



determinations, when supported by the record, are binding on this Court.

Spotz, 18 A.3d at 259.

         Counsel is presumed effective, and Appellant bears the burden of

provin                                Commonwealth v. Koehler, 36 A.3d

121, at 132 (Pa. 2012).         To rebut that presumption, Appellant must



prejudiced him.       Strickland v. Washington, 466 U.S. 668, 687 691

(1984). Our Supreme Court has characterized the Strickland standard as

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

Thus, to prove ineffective assistance of counsel, Appellant must demonstrate

that: (1) the underlying iss

lacked an objective reasonable basis; and (3) Appellant was prejudiced by

                               Koehler, 36 A.3d at 132.     Moreover, counsel




                                        -4-
J-S26019-14



cannot be deemed ineffective for failing to raise a meritless claim.

Commonwealth v. Harris, 852 A.2d 1168, 1173 (Pa. 2004).



assistance is deemed constitutionally effective if he chose a particular course

that had some reasonable basis designed to eff

Koehler, 36 A.3d at 132 (quoting Commonwealth v. Colavita, 993 A.2d



                                                                             e

                                                           Commonwealth v.

Ly, 980 A.2d 61, 73 (Pa. 2009).          A court is not required to analyze the



fails under any necessary element of the Strickland test, the court may

                                  Koehler, 36 A.3d at 132.



present the testimony of witnesses, Appellant must show that:

      (1) the witness existed; (2) the witness was available; (3) trial
      counsel was informed of the existence of the witness or should

      prepared   to   cooperate    and    would
                                             have testified on the
                                             ence of the testimony
      prejudiced the petitioner. Commonwealth v. Miller, 868 A.2d
      578, 581-82 (Pa. Super. 2005) (quotation omitted).

Commonwealth v. Hammond, 953 A.2d 544, 556 (Pa. Super. 2008).

                                                              minal
      prosecution must be limited to his general reputation for the



                                         -5-
J-S26019-14



      particular trait or traits of character involved in the commission
                                   Commonwealth v. Luther, 317 Pa.
      Super. 41, 463 A.2d 1073, 1077 (1983) (citations omitted).
             evidence must relate to a period at or about the time the

      testimony of witnesses as to the community opinion of the

      Id. at 1077-78 (citations omitted) (emphasis in original).

Commonwealth v. Lauro, 819 A.2d 100, 109 (Pa.Super. 2003). Failure to



ineffectiveness. Id.

      The PCRA Court has filed a sufficient and complete analysis of the

issue presented on appeal in its Pa.R.A.P. 1925(a) opinion, and we rely upon

it in affirming this case. We supplement that decision in one minor respect.



             s character evidence, PCRA petition, 5/7/12, at unnumbered 3,

and he cites this contention as support for his claim that he was prejudiced



Our review of the trial testimony, however, discloses a vigorous defense that



victim.   N.T., 5/22/09, at 28 46. Indeed, in his appellate brief, Appellant




                                      -6-
J-S26019-14



     As noted above, the PCRA court has completely addressed the issue

Appellant presented in his petition, and we adopt its reasoning as our own.

Accordingly, we affirm the order denying PCRA relief.

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 8/27/2014




                                     -7-
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   IN THE COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY
           FIRST JUDICIAL DISTRICT OF PENNSYLV ANIA


COMMONWIEALTH OF PENNSYLVANIA
                                                                CP·51-CR·0704391·2006


                              v.
                                           FILED
                                            JUL 18 2013         SUPERIO R COURT
                                                                1519 EDA 2013
                    .    Criminal Appeals Unit
           MELVIN BLAMOFirst Judicial District of PA


                                                                                    .,...,
                                                                r.r~' o.:R.:r. ... J91lOO6 """"', ~ Ill""'" """"'"

                                              OPINION

CHRIS R. WOGAN, •T.                                                   1111111111111111111111111
                                                                               7043081241

                                           Procedural Posture

           The Supennj' loun ser out the facts and proceduraJ his-tOry 0 1 this case as

f'JlIo\\''!l   In   defendant's dlrecr appeal to that court:

          In 2005. Charles Yancy ("Co-defendant") tOok fund, from tbe cheelung
          .ceouot of ,~ Ihaij Tholley. On June 22, 2006. Co-defendant, Appellant,
          and apprDXlmatdy tcn cohorts confronted f\lr. ThoUey at a local park.
          The men approached Mr. ThoUey, surrounded him, and brandIShed
          firearms. Co-defendant warned ~1r Tholley not [Q appear ill court 10
          t<sofi' agaInst Codefendant 1fl the theft case. Followmg tillS warnUlg, the
          meo beat Mr. ThoUey. Mr. TholJey's fnend, Amill:a Dukaray,
          unsuccessfully ane;:.mprcd to lflLelvene. 1\r [h;u pOInt, Mr. Tholle) and
          Mr. Dukaray Oed. During dlel1' llighl, one of the assailants drew his
          weapon, opened fire, and shot Mr Dukaray 10 the back. Mr. Dukaray
          required hospltalizaUOll for ius 1l1junes
                  ~prdlant ano Co-defendant proceeded to a lOlot ttlal on Mq 20.
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            2009. 1 PolloWlng jury seleco()n~ the (nnunonweallh lniormcd the court
             fhal it could not locate 1\1 .. 111011eYl and it dJd not expect Jum to appear
            af mal. CnnsequcnrJy, rhe Commonwc:1.lrh a"ked LO introduce lvh.
            'Tholley's tesumony from Appellant's and Co-defendant's prclirrunary
            heMlngs . .A. fter rccclVlflg evtdence regardtng the Commonwealth '5
            efforts tu locate ?vir. Tholley, rJle court pennmed the introductlon of L\fr.
            Thollcy's prcwnin"T heanog resomony. Un M.IY 21, 2009.
            Cnmmon\V~alth WItnesses read Mr. Tholley's prelmunary heanng
            [('st1mony Into rJ1C record. Mr. Tholley sw:pnscd everyone and actually
            appeared ar tr1al to testify in person on May 22, 2009. At the conclUSIOn
            of trial, the jU1T found Appellant guilty of aggravated assault, r""Moon
            a~~l1nSI ;1 WlTflCSS. 1n00000darion of a WltneS~, and con::;plIacy.
                     On June 30. 2009, the co urt sentenced Appellant ro an aggregate
            term of onc hundred rwonty-three (123.1 [Q three hundred SIXty (36m
            months of lInpnsonmem. Appell'lnt timely filed a monnn for
            reconSIderation of sent~nce on Julv -. 2009. Thereafter. J      \ppeUant
            obulJleJ new counsel. On August 31,2009 1 new coun~eJ filed a
            supplemental post-sentence motion on\ppell.nt's behalf In the
            "upplern~ntaJ motlon, new counsel alleged tnal counsel was rneffecovc
            for f::ulmg to present character WHoesse5. '111C court subsequently
            determlllecl rhe meffectlveness challenge should be defcned to
            coU:llcral reVlew. By order entered December', 2009. Appellant'~
            mOtion for rccon::;iderauon of sentenct: was derued by operauon of law.

Sec Commonwealth y, Melvin Blamo, No. 43 FDA 201                       n. Supenor Court 0plOlOn
rtJed>\pril 8, 201 O.

            Defendant's sentence was affinned on direct ~ppeal . as cited above.

            On May 7, 2012, PCR.>\. counsel \X ayne Sachs, EsqulI<. Filed.r "PenDon For

.~nd    Consobdated I\lemorandum Of Law In Support Of .Post-ConVlcDoo Rdief

unJcr 42 PACS. SeeMn 9541, ft. H9." On September 28,2012, the Commonwealrh

fiJeJ   It!'.   !-.100Ull to DtsrJUss, On MarcJl 5,2013, rJus   CClurt     sent defendant a J\ionce

pursuant to Pa.RCrim.P, 907, rhat the issues raJsed             in   his   reM   Petioon were

           Co-defendant absconded pnor to the starr of trtal, and [he court cried h.im in
absenlia.
                                                                                                        2
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 WIthout ment. On Ap[l] 26, ~013, t1u, coun formally dJSllU>5cd defendsnr\ PClL\

Petition.


       On May 23,2013, defendant filed Ius No~ce of Appeal, represented by \'eaync

Sachs, EsqUire. On June 24, 2013, thiS court ord ered defendant to file a 1925(b.'

Statement ofJ\latters Comp lamed of on'\.ppeal.



                                                   Discussion

       Defenuan[ cialmed In hlS peRA Pefloon that mal counsel. Lawrence \'7e!!'h,

EsquIre, falled to present tesumony of reacWy availahle character witnesses based on

counsel's nusundcrstandtng           or appltcable law.    Oefelldant\ enure claim re:'its on Ius

Inrerpreranon of [he law rhar the Commonwealth rna}' only Closs-exarrune a character

\VltneS!:i. countering testunony of pt(1cefuJ non-vIolent behavior of dctcndam at (he

orne of [he underlying cnme,          Wlth   a sepnrare cnml: comrrutred bv defendant before

the underlYIng   cIIme   and for which he had already been          CQI1VICred   and sentenced

before the undc:r.Iywg offen!'e was commmed. nus readmg amounts to a \lvlndfd.u for

defenJant. b contrary     to   the   truth~deremurung      process at uiaJ, and IS not suppOtl hy

the c",os ctcd by defendam.

      As the Comrnonwcaltll correctly noted, Commonw,alt/] o. Rim, 856 A.2d 03

t.Pa.Suptr 200·n "was concerned Wlth whether (he Judgments                u~ed   to Impe.'\ch were

final at the time o f trial. R56 A.2d         'U   97 .98 (holding u,c of one·day old com1coon,

(0 lIDpeach character WItnesses was llTlpemusslble because: the           COnVlcoons    wele

                                                                                                     3
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    unsenrenced at tune 01 rnal; relYlOg on Commonwealtli            1'.   z.:,pald,    314 A,2d 299        n'a
    19-4), whIch held (f1al   coun~e1   was    Ulcf(ecov~   for   fl::vl.!aLn~    Ius   clien['~    two poor

convictions for volunt-ary manslaughter when the chent had                         ntH   yer been     ~en[enccd     at

toe Dmc of trml)." "[TJhe Commonwcltlth could have used defendant's                                  mo~t   seuuus

pnor judgments to lffipeach tiny character resumony a"                     [(I   hl<; non-YIOlenr and law-

abiding character." As the Commonwealth set' our: "Defendant was scnrenced nn

those ,udgmcnts---gUilty ple:ls TO charge~ of unauthorlzed u~t of d mOlO! vt:hicle.

dtsordedy conduct and dnVlng Wlthout a ucense----on \1ay 30, 200""), about [wo                                J'~'U:s


before ills maim this case'" See Commonwealth                     ~ronun to Dlsmls~,           p. 5. \nd, as

the Commonwealth notes, "fmctic1IuJgmem::; abo mc.::ct the rt:qwrUTII,;Tlh

of.. .Commoll,,',allh r'. N,lIo"" 565 A.2ed "70 Pa.Super I q~9 . . t<qUlr.ling) mat

convictions Introduced to Impeach             !l   character Wltnes~ have been            comrru[[t~d      pnor to

the offense for which rllC defendant IS curn:ntly on tIul Here [he prior Judgment:- 111

question stemmed frum a prosecution that conunenccd with an arre:'.t on Dcccmbet

22.      ~005. ~cveral mon!h~   before the beaung <wd shooong {hat led tu defendant's

Judgments      U1   thts case" Nellom. at 774 (bold emph",,, ndded                      "'WItness    should he

subject to     cro~s-examinacion   only about conVICtiOnS that arose out of offenses

nCCUffUlgpnor 10 the commissJOo of tht :lUegt.d offense ."~ Therefore, 1[ was


1
           Under Rule 405. Methods of ProvlOg Charaerer'

la Reputation c",dencc. In all cases
     t                                        wluch eVldencc of character or a rrrut of
                                              In
characler of a pe"on Is       adrru.'"ble. proof rna)' be made Gy ,esumon)' as to reputauon
                                                                                                                        4
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 reasonable    fi)f   defense ct"ll.lOf:el to (orew, prouuc.mg ch<traner resumony on bl.!hllif of

defendant since 1115 prIor conVlcnons cOllld have heen lnuQduced to Impeach tht:

 WltnCSSCS .   SIT CQmmooy,;talth v          ludd,   wr A.2d 1224. 1232-1233                 P:..Super

200(,: 'Jlprellant':i "mote recent COllV1C[iOns for SJ11lpic
     :                                                                      a~!'iaul[l r('ckJe~s   endangerment.

and dnvmg under the Innuence" .1dmL~~lble. If appellant " presented chat!lcrer

cv;dt.:nn.: to establish th;lt he was a non-vlOlenl pcr:son, the.' Commonwealth would be

aUO\"ed to presenr evidence oflus more recuu pnor ro nvlCtlOl1s''''

        Ncvenheles!), defendant was no[ cnutlcd                   [I)   P( R,\ rtlief on thts lncffecuvenc!'s

chum because he Clll1nOI prove he was prt'Judiced br the absence of character

tesnmony :1T trial. As the COmJllonweaJrh pOU1[cd our, "la)ILhoug- characrer
                                                                 h

restimony I:'; rheoreacalJy .sufficient by lr~elt to cre:1te reas-onable doubt.                    tr   1:. rarely

<:ufficicllt 111 pracoce. 5 U l.g.. CflIJJmOnW, ,";/.1h   tl.   Cull, 688 .A.2J 1 191, 119' (Pa.Super.

199- 'l'lppellam faileJ fO esrabhsh prellHlicc for nuT caUIng character ""tnesses where

evidence estabhshed lu~ gLUh nf cnmes charged) ... " D(::f~ndant cannot demonstrate                                  iH


the PCR.\ level that he was preludJceJ b) ,m)' lack of (har.crcr tesoman), where lbe

Commonwe-<llth presented          te~omony ar tr.l .. u from on(' of the gunshot vicruns, Amara
Dukar:\}' (who persnn}1Uy knuws defenJanl ), tha.t defcnJanr was Involved                               In   the

aitercaoon learung ro d,c shooong, and defendant had a gun (I" T 5/ 2U / 09, p. 9+

On cross-exarrunaOOll of Lhc rcpuratJon w1tness, lOqWry 1~ allowable into specific
instances of conduct probanve of the character mnr Ul quesoon, except that in
crmunal case~ lflqUHy toW allegaoon:.           or
                                        other cnrrunal nu~conduct of lhe accuseJ not
resulting in conviction is oot permissible.
See PR.R.E. 405 (hold emphasis added I.
                                                                                                                      5
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    179    Police statements by hoth "Kurns that defendant conunittcd the             c[lme~   uther

documentary eVldcnce of rhe come, pouce tesumony, JnJ fon:nslC evidence was also

rresclllcd ,Ir rnal :;'cc "Commonweal:1- v. Nmbalf. 724 ,\ 2d 326 (pa. 1999)(prejudice

reC]UlreS a shoWlng         dUl,   but for counseJ':-; faulted aCDon or OrruSSlOl1, there eXists a

[ea~onahle         prt'lhabilit) thaI the outcome;: wouJd havt' been dlffcrt:.nt)fl", citmg

Commonwealth':, 'M otlon to Dism.lss, p. 6.               Dekndllilt did not demomuate chat

there     CXl~tS   a n:asoJlahk pfobahililJ that the outcome would have been dlfferem If

counsel had GlUed character WItnesses con'iidenng rhe eVIdence of guilt presented                    Jt


mal Jhtref0re, ru:; peR..:\           lI1effecovcnc~5   clam1 Joes not cnode hun to post-

con\'1Coon reuef




                                                Conclusion

          Dt:fendant's     reM lI1effecovt:ness claIm is merlciess.       Defendant's sentences

should remain.




                                                   CHRIS R. WOGAN,].




1         Summary rusnussal o[ PCR.\ Pennun approprtate 1f cl:ums are 'Wlthom mel1L
~     CornmonwenJth v. PaYDe, 794 .\,2<1 902, 90G l'a.Supcr. 2002).
