J-S75004-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                          IN THE SUPERIOR COURT OF
                                                            PENNSYLVANIA
                            Appellee

                       v.

STEVEN BROOKS

                            Appellant                     No. 2371 EDA 2013


                   Appeal from the PCRA Order July 12, 2013
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0903189-2006


BEFORE: ALLEN, J., LAZARUS, J., and MUNDY, J.

MEMORANDUM BY MUNDY, J.:                               FILED JANUARY 23, 2015

        Appellant, Steven Brooks, appeals from the July 12, 2013 order

dismissing without a hearing his petition filed under the Post Conviction

Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546.1            After careful review, we

affirm.

        The underlying facts are set forth in full in this Court’s memorandum

resolving Appellant’s direct appeal.           See Commonwealth v. Brooks, 981

A.2d 307 (Pa. Super. 2009) (unpublished memorandum at 2-3), appeal

denied, 983 A.2d 725 (Pa. 2009). Briefly, on August 2, 2006, Appellant was

involved in a home invasion. On that day, at 5:45 a.m., Appellant and two

accomplices entered the basement of the victims’ home by breaking in
____________________________________________


1
    The Commonwealth elected not to file a brief in this matter.
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through a locked window.           This window was the only way to access the

basement from outside of the house.              Once inside, Appellant and his two

accomplices, at least one of whom was armed with a gun, used physical

force and threats to take various items and money from the home’s four

occupants, two adults and two minors.              Appellant was arrested after his

fingerprints were discovered on the inside of the broken window in the

basement. On October 24, 2006, the Commonwealth filed an information,

charging Appellant with two counts of robbery, five counts of simple assault,

and one count each of criminal conspiracy, burglary, possession of firearm

prohibited, firearms not to be carried without a license, attempted theft,

carrying firearms in public in Philadelphia, criminal mischief, aggravated

assault, theft by unlawful taking, and receiving stolen property.2

       On February 6, 2008, a jury convicted Appellant of two counts of

robbery, one count of burglary, two counts of simple assault, and one count

of criminal conspiracy.        On March 28, 2008, the trial court imposed an

aggregate term of 15 to 30 years’ imprisonment followed by 20 years’

probation.3 Appellant filed a timely post-sentence motion on April 4, 2008,

____________________________________________


2
  18 Pa.C.S.A. §§ 3701(a), 2701(a), 903(a), 3502(a), 6105(a), 6106(a),
901(a), 6108, 3304(a), 2702(a), 3921(a), and 3925(a), respectively.
3
  Specifically, the trial court sentenced Appellant to ten to twenty years’
imprisonment for each robbery conviction to run concurrent to each other.
Additionally, the trial court imposed a sentence of ten years’ probation
consecutive to confinement on the first robbery count. The trial court
(Footnote Continued Next Page)


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which the trial court denied on July 11, 2008. On that same date, Appellant

filed a timely notice of appeal.           On June 16, 2009, this Court issued a

memorandum decision, affirming the March 28, 2008 judgment of sentence.

Brooks, supra.           On November 4, 2009, our Supreme Court denied

Appellant’s petition for allowance of appeal. Id.

      On February 22, 2010, Appellant filed a timely pro se PCRA petition.

The court appointed counsel who filed an amended PCRA petition on

November 29, 2010. The PCRA court issued a dismissal notice pursuant to

Rule 907 of the Pennsylvania Rules of Criminal Procedure on August 8,

2011.4 Apparently, in an attempt to respond, Appellant filed a second pro se

PCRA petition on October 27, 2011.               On July 12, 2013, the PCRA court




                       _______________________
(Footnote Continued)

imposed a sentence of five to ten years’ imprisonment and ten years’
probation consecutive to confinement for the burglary conviction, both to run
consecutive to the robbery sentences. For the simple assault conviction, the
trial court sentenced Appellant to one to two years’ imprisonment
consecutive to the robbery sentence, but concurrent to the burglary
sentence. N.T., 3/28/08, at 22-25.
4
  The proof of service for the Rule 907 notice indicates that the notice was
served on Appellant and the attorney for the Commonwealth, but not on
Appellant’s court-appointed attorney even though counsel had entered his
appearance for Appellant and filed an amended PCRA petition. See PCRA
Court Rule 907 Notice, 8/8/11, at 1-2; Appellant’s Amended PCRA Petition,
11/29/10.




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dismissed Appellant’s counseled amended PCRA petition without a hearing. 5

On August 11, 2013, Appellant filed a timely notice of appeal.6

       On appeal, Appellant raises the following issue for our review.

              I.     Did the PCRA court err when it dismissed
                     [Appellant’s] [a]mended [PCRA] [p]etition
                     without a hearing and should [Appellant] be
                     remanded to the PCRA court for an evidentiary
                     hearing as the result of evidence which
                     supported [Appellant]’s averments in his pro se
                     [p]etition, but which, for various reasons, was
                     not available to counsel at the time of the
                     PCRA hearings?

Appellant’s Brief at 3. Appellant seeks a remand for an evidentiary hearing

on his claim that trial counsel was ineffective for failing to present alibi

witnesses at trial.7

       The following principles guide our review of an appeal from the denial

of PCRA relief.
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5
  Appellant’s counsel contacted the PCRA court after no action was taken on
the Rule 907 notice or PCRA petition for nearly two years. This resulted in
the PCRA court formally dismissing the petition.        PCRA Court Order
Dismissing PCRA Petition, 7/12/13, at 1. The reason for the delay is not
clear from the certified record.
6
  The PCRA court did not order Appellant to file a concise statement pursuant
to Pennsylvania Rule of Appellate Procedure 1925(b). On December 11,
2013, the PCRA court filed its Rule 1925(a) opinion providing its reasoning
for dismissing Appellant’s PCRA petition without a hearing.
7
  In his brief, Appellant indicates that he is not pursuing the claims in his
PCRA petition that trial counsel was ineffective for failing to call certain
character witnesses because “character would not have been something to
have been pursued at [the] time of trial by a wise attorney.” Appellant’s
Brief at 8.



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           On appeal from the denial of PCRA relief, our
           standard and scope of review is limited to
           determining whether the PCRA court’s findings are
           supported by the record and without legal error.
           [Our] scope of review is limited to the findings of the
           PCRA court and the evidence of record, viewed in the
           light most favorable to the prevailing party at the
           PCRA court level.      The PCRA court’s credibility
           determinations, when supported by the record, are
           binding on this Court. However, this Court applies a
           de novo standard of review to the PCRA court’s legal
           conclusions.

Commonwealth v. Medina, 92 A.3d 1210, 1214-1215 (Pa. Super. 2014)

(en banc) (internal quotation marks and citations omitted), appeal granted, -

-- A.3d ---, 2014 WL 6991663 (Pa. 2014). Further, in order to be eligible for

PCRA relief, a petitioner must plead and prove by a preponderance of the

evidence that his conviction or sentence arose from one or more of the

errors listed at Section 9543(a)(2) of the PCRA. 42 Pa.C.S.A. § 9543(a)(2).

These errors include ineffectiveness of counsel. Id. § 9543(a)(2)(ii). These

issues must be neither previously litigated nor waived. Id. § 9543(a)(3).

     In this case, Appellant contests the propriety of the PCRA court

dismissal of his PCRA petition without conducting a hearing.

                 [T]he right to an evidentiary hearing on a post-
           conviction petition is not absolute. It is within the
           PCRA court’s discretion to decline to hold a hearing if
           the petitioner’s claim is patently frivolous and has no
           support either in the record or other evidence. It is
           the responsibility of the reviewing court on appeal to
           examine each issue raised in the PCRA petition in
           light of the record certified before it in order to
           determine if the PCRA court erred in its
           determination that there were no genuine issues of


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            material fact in controversy and in denying relief
            without conducting an evidentiary hearing.

Commonwealth v. Wah, 42 A.3d 335, 338 (Pa. Super. 2012), quoting

Commonwealth v. Turetsky, 925 A.2d 876, 882 (Pa. Super. 2007)

(internal citations omitted), appeal denied, 940 A.2d 365 (Pa. 2007); see

also Pa.R.Crim.P. 907.     “The controlling factor … is the status of the

substantive assertions in the petition. Thus, as to ineffectiveness claims in

particular, if the record reflects that the underlying issue is of no arguable

merit or no prejudice resulted, no evidentiary hearing is required.”

Commonwealth v. Baumhammers, 92 A.3d 708, 726-727 (Pa. 2014).

We review a PCRA court’s decision to dismiss without a hearing for abuse of

discretion. Wah, supra.

      Appellant alleges ineffective assistance of trial counsel.        When

reviewing a claim of ineffectiveness, we apply the following test, first

articulated by our Supreme Court in Commonwealth v. Pierce, 527 A.2d

973 (Pa. 1987).

                  When considering such a claim, courts
            presume that counsel was effective, and place upon
            the appellant the burden of proving otherwise.
            Counsel cannot be found ineffective for failure to
            assert a baseless claim.

                   To succeed on a claim that counsel was
            ineffective, Appellant must demonstrate that: (1) the
            claim is of arguable merit; (2) counsel had no
            reasonable strategic basis for his or her action or
            inaction; and (3) counsel’s ineffectiveness prejudiced
            him.


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                                       …

                 [T]o demonstrate prejudice, appellant must
            show there is a reasonable probability that, but for
            counsel’s error, the outcome of the proceeding would
            have been different.

Commonwealth v. Michaud, 70 A.3d 862, 867 (Pa. Super. 2013) (internal

quotation marks and citations omitted). “Failure to establish any prong of

the test will defeat an ineffectiveness claim.”           Commonwealth v.

Birdsong, 24 A.3d 319, 329 (Pa. 2011).

      Appellant’s specific claim is that his trial counsel was ineffective for

failing to present three alibi witnesses that could testify to Appellant’s

whereabouts at the time of the home invasion.         Appellant’s Brief at 8-9.

Moreover, Appellant asserts that the PCRA court erred in dismissing his

petition without a hearing because “counsel believes that there are affidavits

or letters that should be seen by the PCRA [c]ourt to make its own

determination as to whether the alibi witnesses would have made a

difference.” Id. at 8.

      An appellant’s burden to show ineffectiveness resulting from trial

counsel’s failure to present witness testimony at trial requires adherence to

the following test.

            A defense counsel’s failure to call a particular witness
            to testify does not constitute ineffectiveness per se.
            Commonwealth v. Cox, 603 Pa. 223, 267, 983
            A.2d 666, 693 (2009) (citation omitted).             “In
            establishing whether defense counsel was ineffective
            for failing to call witnesses, a defendant must prove
            the witnesses existed, the witnesses were ready and

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            willing to testify, and the absence of the witnesses’
            testimony prejudiced petitioner and denied him a fair
            trial.” Id. at 268, 983 A.2d at 693.

Commonwealth v. Johnson, 27 A.3d 244, 247 (Pa. Super. 2011).

      Moreover, our Supreme Court has held that “a defendant who makes a

knowing, voluntary, and intelligent decision concerning trial strategy will not

later be heard to complain that trial counsel was ineffective on the basis of

that decision.” Commonwealth v. Paddy, 800 A.2d 294, 316 (Pa. 2002)

(citation omitted).   Accordingly, “[a] defendant who voluntarily waives the

right to call witnesses during a colloquy cannot later claim ineffective

assistance and purport that he was coerced by counsel.” Commonwealth

v. Lawson, 762 A.2d 753, 756 (Pa. Super. 2000); see also Paddy, supra

at 315; Commonwealth v. Pander, 100 A.3d 626, 642-643 (Pa. Super.

2014) (en banc).

      Appellant declined to present witnesses on his behalf during the

following colloquy with the trial court.

                  THE COURT: You also have a right to testify
            in your case. You have a right to testify. If you
            wish, you have a right to present other witnesses.
            You have a right to present evidence in your own
            defense.

                   Is that clear?

                   [APPELLANT]: Yes.

                 THE COURT: You have a right to present a
            defense, excuse or justification, if you so desire.

                   Do you understand that?

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                 [APPELLANT]: Yes, sir.

                                     …

                  THE COURT: Do you understand that, if you
           wished to give up that right [to testify], the
           Constitution affords you a right of silence at trial, a
           right against self-incrimination.

                 Is that clear to you?

                 [APPELLANT]: Yes.

                  THE COURT: What that means is you may, in
           a sense, say to the Commonwealth, [“]you brought
           these charges; you prove them,[”] and not testify or
           call witnesses.

                 Is that clear to you?

                 [APPELLANT]: Yes.

                 THE COURT: What approach you take is -- as
           I’ve said, and it bears repeating -- your decision and
           yours alone. It’s not [trial counsel’s] decision. It’s
           Steven Brooks’ decision.

                 Do you understand?

                 [APPELLANT]: Yes.

                                     …

                THE COURT:       Are there any other witnesses
           you wish to call?

                 [APPELLANT]: No, sir.

N.T., 2/6/08, at 42-45.

     Thus, from the foregoing colloquy it is clear that Appellant was

thoroughly advised of his right to present a defense and to call witnesses on

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his behalf, and knowingly and voluntarily declined to do so.        Appellant

acknowledged that the approach to trial strategy was Appellant’s decision

alone.   Id.   Appellant stated that he did not wish to testify or introduce

witnesses on his behalf.     Id.   There is no indication in the record, or

argument from Appellant, that this decision was not knowing, voluntary, and

intelligent.   Therefore, Appellant may not now claim trial counsel was

ineffective on this basis.   See Lawson, supra; Paddy, supra; Pander,

supra.

      Based on the foregoing, we conclude that the PCRA court properly

dismissed Appellant’s amended petition without an evidentiary hearing as

the record reflects Appellant’s ineffectiveness claim is of no arguable merit.

See Medina, supra; Baumhammers, supra.                Accordingly, the PCRA

court’s July 12, 2013 order is affirmed.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/23/2015




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