J-S46039-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                            :        PENNSYLVANIA
                                            :
               v.                           :
                                            :
                                            :
 GEORGE MCDUFFIE,                           :
                                            :
                     Appellant.             :   No. 2695 EDA 2017


                  Appeal from the PCRA Order, June 27, 2017,
             in the Court of Common Pleas of Philadelphia County,
             Criminal Division at No(s): CP-51-CR-0109521-2001,
                           CP-51-CR-0109531-2001.


BEFORE: BOWES, J., SHOGAN, J., and KUNSELMAN, J.

MEMORANDUM BY KUNSELMAN, J.:                        FILED OCTOBER 26, 2018

      George McDuffie appeals pro se from the order dismissing his first

petition filed pursuant to the Post Conviction Relief Act (“PCRA”). 42 Pa.C.S.A.

§§ 9541-46.     We affirm.

      The pertinent facts and procedural history have been summarized as

follows:

               On the afternoon of November 6, 2000, two rival groups
           of teenagers were among the onlookers at the filming of a
           rap video: [McDuffie] and several of his friends, and another
           group with whom [McDuffie] was feuding. As the [three-
           member] rival group left at [McDuffie’s] approach, he
           followed, firing five shots at their retreating backs. One of
           his targets was struck in the shoulder, another in the thigh.
           [Another male was not hit by any of the bullets.] The
           victims identified [McDuffie] to police who were present at
           the filming. One month later, on December 9, 2000, officers
           responding to a radio call about a disturbance recognized
           [McDuffie] from a photograph and warrant, and
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          apprehended him as he fled.            He denied having fired at
          anyone.

Commonwealth v. McDuffie, 968 A.2d 793 (Pa. Super. 2009), unpublished

memorandum at 1-2.

       On October 31, 2001, a jury convicted McDuffie on three counts each of

aggravated assault, attempting to cause or causing serious bodily injury with

a deadly weapon, and one count of possession of an instrument of crime. On

December 19, 2001, the trial court imposed an aggregate sentence of fifteen

to thirty years of imprisonment, and a consecutive five-year probationary

term. After the restoration of his appellate rights nunc pro tunc, McDuffie filed

an appeal to this Court and, on January 28, 2009, we affirmed his judgment

of sentence.     McDuffie, supra.        On October 9, 2009, our Supreme Court

denied McDuffie’s petition for allowance of appeal.            Commonwealth v.

McDuffie, 982 A.2d 65 (Pa. 2009).

       On April 12, 2010, McDuffie filed a pro se PCRA petition, and filed an

amended petition on March 10, 2011. The PCRA court appointed counsel,

who, on May 19, 2017, filed a “no-merit” letter and petition to withdraw,

pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and

Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc), based

upon PCRA counsel’s conclusion that McDuffie’s petition was without merit.1

____________________________________________


1 Other than a change of counsel, and several continuances, the reasons for
the over six-year delay in the PCRA proceedings is not clear from our review
of the certified record.


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      On June 5, 2017, the PCRA Court issued Pa.R.Crim.P. 907 notice of

intent to dismiss, as meritless, McDuffie’s petition without a hearing. McDuffie

did not file a response. By order dated June 27, 2017, the PCRA court granted

PCRA counsel’s motion to withdraw, and dismissed McDuffie’s amended PCRA

petition as meritless. This timely pro se appeal followed. Both McDuffie and

the PCRA court have complied with Pa.R.A.P. 1925.

      On appeal, McDuffie claims that the PCRA court erred in dismissing his

amended petition without a hearing because he raised the following five

meritorious claims of ineffective assistance of counsel: 1) the failure to submit

and investigate an alibi defense; 2) the failure to object to the trial court’s use

of an impermissible factor when sentencing him; 3) in withdrawing his pre-

trial decertification motion, and in the failure to seek a transfer to juvenile

court following acquittal of the most serious charge; and 4) the failure to

object to prosecutorial misconduct during his sentencing hearing. In addition,

McDuffie claims that PCRA counsel was ineffective for filing a Turner/Finley

letter and determining that his amended PCRA petition was meritless. See

McDuffie’s Brief at 4.

      As this Court has reiterated:

         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.


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          However, this Court applies a de novo standard of review to
          the PCRA court’s legal conclusions.

Commonwealth v. Medina, 92 A.3d 1210, 1214-15 (Pa. Super. 2014)

(citations omitted).

       Because McDuffie’s claim challenges the stewardship of prior counsel,

we apply the following principles.2 The law presumes counsel has rendered

effective assistance. Commonwealth v. Rivera, 10 A.3d 1276, 1279 (Pa.

Super. 2010). The burden of demonstrating ineffectiveness rests on the PCRA

petitioner. Id. To satisfy this burden, the petitioner must plead and prove by

a preponderance of the evidence that: “(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 reasonably probability that the outcome

of the challenged proceedings would have been different.” Commonwealth

v. Fulton, 830 A.2d 567, 572 (Pa. 2003). Failure to satisfy any prong of the

test will result in rejection of the PCRA petitioner’s ineffective assistance of

counsel claim. Commonwealth v. Jones, 811 A.2d 994, 1002 (Pa. 2002).

       In assessing a claim of ineffectiveness, when it is clear that the

petitioner has failed to meet the prejudice prong, the court may dispose of the


____________________________________________


2 Although McDuffie presents a majority of his arguments as layered claims of
ineffectiveness, there was no need to do so. Generally, claims of trial
counsel’s ineffectiveness must await collateral review. See Commonwealth
v. Grant, 813 A.2d 726 (Pa. 2002).


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claim on that basis alone, without a determination of whether the first two

prongs have been met. Commonwealth v. Travaglia, 661 A.2d 352, 357

(Pa. 1995). Counsel will not be deemed ineffective if any reasonable basis

exists for counsel's actions. Commonwealth v. Douglas, 645 A.2d 226, 231

(Pa. 1994). Even if counsel had no reasonable basis for the course of conduct

pursued, however, a PCRA petitioner is not entitled to relief if he fails to

demonstrate the requisite prejudice which is necessary under Pennsylvania's

ineffectiveness standard. Douglas, 645 A.2d at 232.

      Here, McDuffie first claims that trial counsel was ineffective for failing to

submit and investigate an alibi defense. He avers that trial counsel was aware

of “alibi evidence (video tape of rap music video showing [him] dancing at the

time of the crime).” McDuffie’s Brief at 11. According to McDuffie, “had the

videotape been retrieved and produced/presented to the jury along with

[testimony from him and his witness] there is a reasonable probability that

the outcome of the proceedings would have been different.” Id. at 12.

      McDuffie   cannot   establish prejudice.       Claims of trial counsel’s

ineffectiveness are not self-proving and therefore cannot be raised in a

vacuum. See generally, Commonwealth v. Pettus, 424 A.2d 1332 (Pa.

1981). Within his PCRA petition McDuffie has proffered no evidence that the

rap music video actually exists. Absent such evidence, McDuffie’s ineffective

assistance claim is based on mere speculation. See Commonwealth v. Hall,

867 A.2d 619, 632 (Pa. Super. 2005) (affirming the dismissal of an


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ineffectiveness claim based in part on a video because Hall failed to sufficiently

plead the existence of a video). Moreover, as McDuffie acknowledges, both

he and his witness testified at trial that McDuffie was participating in a music

video when the shooting occurred. McDuffie’s Brief at 12. Therefore, the jury

was made aware of McDuffie’s alibi.          Thus, McDuffie’s first ineffective

assistance claim fails.

      In his second claim, McDuffie argues that trial counsel was ineffective

for failing to object to the trial court’s reliance upon an impermissible factor

when sentencing him. He avers that the trial court relied upon a fact not of

record when it accepted as true the prosecutor’s representation that one of

the shooting victim’s still had a bullet lodged in his back. He then cites the

trial testimony wherein that victim testified that the bullet was extracted. See

McDuffie’s Brief at 14 (citing N.T., 10/31/01, at 209). According to McDuffie,

“had [prior counsel] raised said issue on post-verdict motions and/or on direct

appeal[,] a new sentence would almost have been guaranteed.” McDuffie’s

Brief at 15. We disagree.

      Once again, McDuffie cannot establish prejudice; the record contains no

evidence that the trial court imposed a harsher sentence on him solely

because of its mistaken belief that a bullet remained in one of the victim’s

back. Indeed, in rejecting McDuffie’s challenge to the discretionary aspects

of his sentence on appeal, this Court found numerous reasons supported the

trial court’s sentencing him in the aggravated range:


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             The trial judge here explained that he was aware of
          [McDuffie’s] background as reflected in the pre-sentence
          report, and was sentencing [McDuffie] above the
          aggravated range of the guidelines for three counts of
          second degree felony aggravated assault because
          [McDuffie] was firing at his victims’ backs as they attempted
          to avoid him, because he was firing in a densely populated
          area, and because prior attempts to rehabilitate [McDuffie]
          had failed. The sentence was therefore not, as [McDuffie]
          insists, based solely on the seriousness of the crimes, or on
          a circumstance already factored into the guideline sentence,
          namely the use of a gun. The court declined to accept
          [McDuffie’s] attempted justification of his actions as
          retaliation for the victims’ behavior toward him.

             As to the degree of harm suffered by the victims, the trial
          court noted that the jury had found not “serious bodily
          injury,” but “bodily injury.” The court stated its intention to
          sentence [McDuffie] on the basis of the lesser degree of
          severity, despite its disagreement with the jury’s conclusion.

McDuffie, unpublished memorandum at 4.

      As noted above, McDuffie was sentenced on the basis of the lesser

degree of severity, that is, aggravated assault based upon only bodily injury.

As such, McDuffie cannot establish that the court’s reliance on the mistaken

fact affected the length of the sentences imposed. Thus, this ineffectiveness

claim fails.

      In his third claim, McDuffie claims that trial counsel was ineffective for

both withdrawing his original motion to decertify the charges from adult court,

and for failing to seek to transfer the lesser charges to juvenile court for

sentencing, once he was acquitted of the most serious charge, first-degree

felony aggravated assault, 18 Pa.C.S.A. § 2702(a)(1). According to McDuffie,

counsel’s action and omission “prejudiced him severely” because he would not


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have been tried as an adult, and would have received a sentence in accordance

with the juvenile court’s jurisdiction. McDuffie’s Brief at 16.

      At the time the charges were filed, McDuffie was approximately

seventeen years and four months old. See Turner/Finley Letter, 5/9/17, at

8. Although his original counsel filed a decertification petition, new counsel

subsequently withdrew it.      In order to prove that he was prejudiced by

counsel’s action, McDuffie needed to proffer evidence to demonstrate that his

case would have been transferred had counsel proceeded with the

decertification petition. Fulton, supra. He did not do so. Thus, McDuffie’s

claim of ineffectiveness fails on this basis.

      McDuffie cites this Court’s decision in Commonwealth v. Solomon,

679 A.2d 775 (Pa. Super. 1996), to support his claim that trial counsel was

ineffective for failing to seek to transfer his case for sentencing to the juvenile

court, once he was acquitted of aggravated assault, graded as a first-degree

felony. In Solomon, after he was convicted of involuntary manslaughter, the

seventeen-years-and-eight-months-old Solomon, prior to sentencing, made

an oral motion pursuant to 42 Pa.C.S.A. § 6322(b) of the Juvenile Act to

transfer his case to the juvenile court for sentencing. The trial court denied

the motion without holding a transfer hearing, and Solomon appealed to this

Court. Solomon claimed that, because he was convicted of a crime less than

murder, the trial court was required to hold a hearing to determine whether

he was amenable to treatment in the juvenile system. We disagreed, and


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concluded, that the trial court, in its discretion, could decide the merits of the

transfer petition without first holding a hearing.

      At the time of the Solomon decision, Section 6322(b) applied only to

cases where the juvenile was acquitted of murder.             The Pennsylvania

Legislature amended this section of the Juvenile Act in 1995, to permit transfer

to juvenile court only when the juvenile was convicted of a misdemeanor and

the Commonwealth agreed to the transfer. 42 Pa.C.S.A. § 6322(e). Here,

McDuffie’s aggravated assault convictions were second-degree felonies, rather

than misdemeanors. Thus, McDuffie’s case was ineligible for transfer. As we

have previously held, trial counsel cannot be deemed ineffective for failing to

pursue this meritless claim. Commonwealth v. Loner, 836 A.2d 125, 132

(Pa. Super. 2003) (en banc).

      McDuffie’s fourth claim of trial counsel’s ineffectiveness requires little

discussion. According to McDuffie, trial counsel did not object to an instance

of prosecutorial misconduct at sentencing when the prosecutor “intentionally,

knowingly and willingly misled” the trial court in its erroneous belief that one

of the victims still had a bullet lodged in his back. McDuffie’s Brief at 17. As

noted above, the record is devoid of any evidence that the prosecutor

intentionally misrepresented this fact.     Nevertheless, as we have already

concluded, McDuffie has not proven that any such mistake of fact adversely

affected the trial court’s sentencing choice.




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       Finally, McDuffie also asserts that PCRA counsel was ineffective for

failing to file an amended petition, rather than a Turner/Finley letter.

McDuffie had the opportunity to raise this claim in response to the PCRA

court’s Rule 907 notice of intent to dismiss his petition. See Commonwealth

v. Pitts, 981 A.2d 875, 879-80 n.3 (Pa. 2009). Because he did not do so, 3

his claim of PCRA counsel’s ineffectiveness is inappropriately being raised for

the first time on appeal. See Pa.R.A.P. 302(a). Nevertheless, because we

have concluded that all of McDuffie’s trial counsel ineffectiveness claims fail,

even if preserved, McDuffie’s further claim regarding PCRA counsel’s

ineffectiveness would have had no merit.

       In sum, none of the ineffectiveness claims raised by McDuffie entitles

him to relief. We therefore affirm the PCRA Court’s order denying his amended

PCRA petition.

       Order affirmed.




____________________________________________


3 McDuffie attached to his brief a copy of a letter dated June 18, 2017, in which
he appears to object to PCRA counsel’s Turner/Finley letter. This letter bears
no time-stamp and does not appear in the certified record. Thus, we cannot
consider it. See Commonwealth v. Garvin, 50 A.3d 694, 700 n.8 (Pa.
Super. 2012) (reiterating that, “for purposes of appellate review, what is not
in the certified record does not exist.”)


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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/26/18




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