J-S09038-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

TIMOTHY L. COTTLE,

                            Appellant                No. 3033 EDA 2015


                Appeal from the PCRA Order September 11, 2015
              in the Court of Common Pleas of Philadelphia County
                Criminal Division at No.: CP-51-CR-0008459-2009


BEFORE: SHOGAN, J., STABILE, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                             FILED MARCH 15, 2017

        Appellant, Timothy L. Cottle, appeals from the order dismissing his

first petition filed pursuant to the Post Conviction Relief Act (PCRA), 42

Pa.C.S.A. §§ 9541-9546. We affirm.

        We take the relevant facts and procedural history of this case from our

independent review of the certified record.     On February 11, 2011, a jury

convicted Appellant of aggravated assault and simple assault.1             The

conviction stems from Appellant’s June 2009 assault of his first cousin,

Charvelleite Witcher Williams, in the basement of his father’s home. During

the attack, Appellant grabbed Ms. Williams by the neck, threatened to kill

____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
    18 Pa.C.S.A. §§ 2702(a) and 2701(a), respectively.
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her, beat her, and bit her ring finger; she sustained injuries to her face,

teeth, eyes, forehead, and finger as a result. On March 25, 2011, the trial

court sentenced Appellant to a term of not less ten nor more than twenty

years’ imprisonment. This Court affirmed Appellant’s judgment of sentence

on May 16, 2012, and our Supreme Court denied his petition for allowance

of appeal on November 9, 2012. (See Commonwealth v. Cottle, 50 A.3d

243 (Pa. Super. 2012) (unpublished memorandum), appeal denied, 57 A.3d

66 (Pa. 2012)).

       On March 29, 2013, Appellant filed a timely pro se PCRA petition.

Appointed counsel filed an amended petition on February 8, 2015.           The

Commonwealth filed a motion to dismiss the petition, and the PCRA court

issued notice of its intent to dismiss it on August 7, 2015. See Pa.R.Crim.P.

907(1).    The court entered its order dismissing the petition on September

11, 2015. This timely appeal followed.2

       Appellant raises the following questions for our review:

       I. Whether the [PCRA] court erred in not granting relief on the
       PCRA petition alleging counsel was ineffective[?]

       II. Whether the [PCRA] court erred in denying the Appellant’s
       PCRA petition without an evidentiary hearing on the issues raised
       in the amended PCRA petition regarding trial counsel’s
       ineffectiveness[?]

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2
 Appellant filed a concise statement of errors complained of on appeal on
November 5, 2015, although the PCRA court did not order him to file one.
The court entered an opinion on June 7, 2016. See Pa.R.A.P. 1925.



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(Appellant’s Brief, at 8).3

       Appellant’s issues on appeal challenge the effectiveness of trial

counsel.     Specifically, Appellant argues that counsel was ineffective for

failing to hire a handwriting expert to testify regarding Ms. Williams’ diary.

(See Appellant’s Brief, at 16-17). At trial, Ms. Williams testified that some

of the entries in her diary pertaining to Appellant had been altered, and

Appellant claims the implication of this testimony was that he had written

the entries. (See id.; see also N.T. Trial, 2/09/11, at 136-40, 143-47, 167-

68, 173). Appellant also contends that counsel was ineffective for failing to

seek a continuance when the Commonwealth advised that an additional

witness, Kenneth Brown, would testify at trial. (See Appellant’s Brief, at 17-

19). Our standard of review is as follows:

       When reviewing the denial of a PCRA petition, we must
       determine whether the PCRA court’s order is supported by the
       record and free of legal error. Generally, we are bound by a
       PCRA court’s credibility determinations. However, with regard to
       a court’s legal conclusions, we apply a de novo standard.

Commonwealth v. Johnson, 139 A.3d 1257, 1272 (Pa. 2016) (citation and

quotation marks omitted).

       Furthermore,


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3
  We have re-ordered Appellant’s issues for ease of disposition. The first
issue contains two sub-issues, the first challenging counsel’s failure to hire a
handwriting expert, and the second challenging her failure to request a
continuance. (See Appellant’s Brief, at 16-19).



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     In order to be eligible for PCRA relief, the petitioner must prove
     by a preponderance of the evidence that his conviction or
     sentence resulted from one or more of the enumerated
     circumstances found in Section 9543(a)(2), which includes the
     ineffective assistance of counsel. 42 Pa.C.S. § 9543(a)(2)(i).

           It is well-established that counsel is presumed effective,
     and to rebut that presumption, the PCRA petitioner must
     demonstrate that counsel’s performance was deficient and that
     such deficiency prejudiced him. To prevail on an ineffectiveness
     claim, the petitioner has the burden to prove that (1) the
     underlying substantive claim has arguable merit; (2) counsel
     whose effectiveness is being challenged did not have a
     reasonable basis for his or her actions or failure to act; and (3)
     the petitioner suffered prejudice as a result of counsel’s deficient
     performance. The failure to satisfy any one of the prongs will
     cause the entire claim to fail.

Commonwealth v. Benner, 147 A.3d 915, 919–20 (Pa. Super. 2016) (case

citations and quotation marks omitted).

     Regarding the prejudice prong, a petitioner must demonstrate
     that there is a reasonable probability that the outcome of the
     proceedings would have been different but for counsel’s action or
     inaction. . . .

           We need not analyze the prongs of an ineffectiveness claim
     in any particular order. Rather, we may discuss first any prong
     that an appellant cannot satisfy under the prevailing law and the
     applicable facts and circumstances of the case. Finally, counsel
     cannot be deemed ineffective for failing to raise a meritless
     claim.

Johnson, supra at 1272 (citations omitted).

     In the first sub-issue, Appellant claims that counsel should have

secured a handwriting expert to testify regarding Ms. Williams’ diary,

because such testimony would have rebutted the implication that Appellant

altered some of the entries.      (See Appellant’s Brief, at 16-17).        This

argument does not merit relief.

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            Where a claim is made of counsel’s ineffectiveness for
     failing to call witnesses, it is the appellant’s burden to show that
     the witness existed and was available; counsel was aware of, or
     had a duty to know of the witness; the witness was willing and
     able to appear; and the proposed testimony was necessary in
     order to avoid prejudice to the appellant. The mere failure to
     obtain an expert rebuttal witness is not ineffectiveness.
     Appellant must demonstrate that an expert witness was
     available who would have offered testimony designed to advance
     appellant’s cause. . . .

Commonwealth v. Treiber, 121 A.3d 435, 454 (Pa. 2015) (citation

omitted).

     Here, Appellant has not even identified a handwriting expert who was

willing and available to appear at trial to testify favorably on his behalf

regarding the diary entries.   (See Appellant’s Brief, at 16-17; Amended

PCRA petition, 2/08/15, at 9-10). Further, Appellant failed to establish that

such testimony would have altered the outcome of his trial where Ms.

Williams testified in detail about the violent attack, which she reported

immediately to police, during which Appellant threatened to kill her,

attempted to break her neck, slammed her head into a utility sink, and bit

her ring finger.   (See N.T. Trial, 2/09/11, at 42-47).      Thus, we reject

Appellant’s claim that counsel was ineffective for failing to call an expert

handwriting witness. See Treiber, supra at 454; Johnson, supra at 1272.

     Appellant next alleges that counsel was ineffective for failing to

request a continuance when the Commonwealth advised that it would call

additional witness, Kenneth Brown.       (See Appellant’s Brief, at 17-19).

Appellant claims that a continuance was necessary in order for counsel to



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prepare adequately for Mr. Brown’s testimony, and that “[t]he failure to

request such a continuance amounts to a complete lack of due diligence in

representing Appellant at trial.” (Id. at 18). This argument does not merit

relief.

          The record reflects that, before trial, defense counsel spoke with Mr.

Brown on the telephone about his recollection of events on the day of the

assault on Ms. Williams. (See N.T. Trial, 2/09/11, at 7-8, 10-11). Although

the Commonwealth did not initially plan to call Mr. Brown as a witness

because it had not made contact with him, it decided to call him after

speaking with him on the evening before trial. (See id. at 8-10). On the

morning of trial, the Commonwealth provided defense counsel with notes of

its conversation with Mr. Brown, and made her aware of the anticipated

substance of his testimony. (See id. at 7, 9). Defense counsel informed the

court that there were discrepancies between what Mr. Brown had reported to

her, and what he reported to the Commonwealth, and requested that the

court preclude his testimony because she had not had sufficient time to

prepare for it.      (See id. at 7-8, 11-12).    The court denied the request,

stated that counsel could question Mr. Brown about any inconsistencies, and

that it was for the jury to determine his credibility.     (See id. at 11-13).

Defense counsel then vigorously cross-examined Mr. Brown regarding the

alleged discrepancies. (See id. at 191-93).

          After review of the record, we discern no prejudice to Appellant as a

result of defense counsel’s decision not to seek a continuance.             See

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Johnson, supra at 1272.          The record demonstrates that counsel did

challenge Mr. Brown’s testimony, the court was not amenable to granting a

continuance request, and that counsel was able to cross-examine Brown

effectively regarding any discrepancies. Thus, Appellant’s claim that counsel

was ineffective for failing to request a continuance lacks merit.

      Finally, we address Appellant’s contention that the PCRA court erred in

denying his petition without holding an evidentiary hearing on his ineffective

assistance of counsel claims. (See Appellant’s Brief, at 14-15). This issue

merits no relief.

      “[T]he right to an evidentiary hearing on a post-conviction petition is

not absolute.”      Commonwealth v. Wah, 42 A.3d 335, 338 (Pa. Super.

2012) (citation omitted). The PCRA court may dismiss a petition without a

hearing when it determines “that there are no genuine issues concerning any

material fact, the defendant is not entitled to post-conviction collateral relief,

and no legitimate purpose would be served by any further proceedings[.]”

Pa.R.Crim.P. 909(B)(2). “[T]o obtain reversal of a PCRA court’s decision to

dismiss a petition without a hearing, an appellant must show that he raised

a genuine issue of fact which, if resolved in his favor, would have entitled

him to relief, or that the court otherwise abused its discretion in denying a

hearing.” Johnson, supra at 1273 (citation omitted).

      Instantly, Appellant has failed to raise any genuine issue of fact that, if

resolved in his favor, would entitle him to relief on his ineffectiveness claims.

We discern no abuse of discretion in the PCRA court’s dismissal of his

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petition without a hearing. See id. Therefore, Appellant’s final issue does

not merit relief. Accordingly, we affirm the order of the PCRA court.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/15/2017




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