J-S62009-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

CHAZ HAWKINS,

                            Appellant                No. 2005 WDA 2014


                  Appeal from the PCRA Order October 8, 2014
               in the Court of Common Pleas of Allegheny County
               Criminal Division at No.: CP-02-CR-0009411-2011


BEFORE: GANTMAN, P.J., JENKINS, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                          FILED DECEMBER 2, 2015

        Appellant, Chaz Hawkins, appeals, pro se, from the order of October 8,

2014, which dismissed, without a hearing, his first counseled petition

brought under the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-

9546. We affirm.

        We take the underlying facts and procedural history in this matter

from this Court’s October 24, 2013 memorandum on direct appeal and our

independent review of the certified record.

             During the trial, victim [Sineada] Goshay testified that
        [Appellant’s brother] entered her house to purchase candy and
        acted suspiciously, and that prior to [him] leaving, two other
        men entered her home with guns. One of the perpetrators
        brandished a shotgun and pointed the gun at [Ronald] Anger,
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
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     the father [of] Goshay’s baby, while the perpetrator with the
     handgun pointed it at their child. The perpetrator with the
     shotgun identified himself by the nickname “Face.” Goshay
     further testified that this individual demanded money and
     rummaged through Anger’s pockets, while Goshay offered them
     other items, including a debit card. Upon recognizing Anger’s
     tattoo, “Face” told Anger that there were going to be
     “repercussions,” and pulled down the mask that had been
     covering his face. Goshay testified that she was able to see the
     profile of the man’s face, and identified [Appellant] as the man
     referred to as “Face.” Goshay admitted that she did not write
     down the perpetrators’ nicknames in her written statement to
     the police, as she was not aware that she needed to do so.
     However, she later explained that she told the police about
     [Appellant’s] nickname. Goshay further testified that she feared
     for her life during the entirety of the incident.

            Anger testified that after the [first] man entered, the other
     two perpetrators entered the home and brandished guns. As
     Anger stated, “[Appellant] holding a shotgun pushed me against
     the wall, put the gun to my stomach, went in my pockets,
     grabbed the money.” Anger explained that the man identified
     himself as “Face” and questioned Anger about his Homewood
     tattoo; while the two spoke, the bandana fell, which allowed
     Anger to see the perpetrator’s face. Anger identified [Appellant]
     as his assailant. [Appellant] and his co-conspirators took
     approximately one hundred to one hundred and fifty dollars from
     the family, and Goshay’s debit card. Anger stated that as the
     men left his house, [Appellant] had his back to the door and
     pointed the gun at them. Anger further testified that on the day
     following the incident, he went to the police station and
     identified [Appellant] from a photo array of potential
     perpetrators.

(Commonwealth       v.   Hawkins,    No.   1885   WDA     2012,   unpublished

memorandum at *2-*3 (Pa. Super. filed October 24, 2013) (quoting Trial

Court Opinion, 2/14/13, at 2-4) (record citations omitted)).

     On May 10, 2012, following a non-jury trial, the trial court found

Appellant guilty of one count of robbery, one count of criminal conspiracy,


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one count of persons not to possess a firearm, one count of simple assault,

and three counts of recklessly endangering another person. On August 15,

2012, the trial court sentenced Appellant to an aggregate term of

incarceration of not less than thirteen nor more than forty years. On August

27, 2012, Appellant filed a post-sentence motion, which the trial court

denied on September 5, 2012.

       On October 24, 2013, this Court affirmed the judgment of sentence

and granted appellate counsel’s request to withdraw pursuant to Anders v.

California, 386 U.S. 738 (1967), and Commonwealth v. Santiago, 978

A.2d 349 (Pa. 2009). (See Hawkins, supra at *1). Appellant did not seek

leave to appeal to the Pennsylvania Supreme Court.

       On June 24, 2014, Appellant, acting pro se, filed the instant timely

PCRA petition.      On July 1, 2014, the PCRA court appointed counsel.           On

August 29, 2014, PCRA counsel submitted a Turner/Finley1 letter.                 On

September 4, 2014, the PCRA court granted PCRA counsel’s request to

withdraw and issued notice of its intent to dismiss the petition pursuant to

Pennsylvania Rule of Criminal Procedure 907(1).             Appellant did not file a

response to the Rule 907 notice.               On October 8, 2014, the PCRA court



____________________________________________


1
  See Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988);
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).




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dismissed Appellant’s PCRA petition.           The instant, timely2 appeal followed.

On December 16, 2014, the PCRA court ordered Appellant to file a concise

statement of errors complained of on appeal.               See Pa.R.A.P. 1925(b).

Appellant filed a timely3 Rule 1925(b) statement on January 13, 2015. On

February 3, 2015, the PCRA court issued an opinion.4                 See Pa.R.A.P.

1925(a).

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

              Did the [PCRA c]ourt err when it denied [Appellant’s PCRA
       p]etition without an evidentiary hearing, as he received
       constitutionally impermissible ineffective assistance of counsel?

(Appellant’s Brief, at 4).

       We review the denial of a post-conviction petition to determine

whether the record supports the PCRA court’s findings and whether its order

is otherwise free of legal error.        See Commonwealth v. Faulk, 21 A.3d
____________________________________________


2
  We note that the docket reflects that the notice appeal was filed on
November 12, 2014. However, our review of the certified record shows that
the envelope is date-stamped November 3, 2014. Thus, Appellant placed his
appeal in the hands of prison authorities for mailing within the thirty-day
period. See Pa.R.A.P. 903(a). Thus, under the “prisoner mailbox rule” the
appeal is timely. See Commonwealth v. Chambers, 35 A.3d 34, 38 (Pa.
Super. 2011), appeal denied, 46 A.3d 715 (Pa. 2012) (citation omitted).
3
  Because the envelope containing the Rule 1925(b) statement is date-
stamped January 8, 2015, it is timely under the prisoner mailbox rule.
4
  In its opinion, the PCRA court asks that this appeal be dismissed based
upon Appellant’s failure to file a Rule 1925(b) statement. (See PCRA Court
Opinion, 2/03/15, at unnumbered page 2). However, as noted above, this
statement is belied by the record. (See also Commonwealth’s Brief, at 11-
12 n.1).



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1196, 1199 (Pa. Super. 2011).       To be eligible for relief pursuant to the

PCRA, Appellant must establish, inter alia, that his conviction or sentence

resulted from one or more of the enumerated errors or defects found in 42

Pa.C.S.A. § 9543(a)(2).     See 42 Pa.C.S.A. § 9543(a)(2).       He must also

establish that the issues raised in the PCRA petition have not been

previously litigated or waived.      See 42 Pa.C.S.A. § 9543(a)(3).          An

allegation of error “is waived if the petitioner could have raised it but failed

to do so before trial, at trial, during unitary review, on appeal or in a prior

state postconviction proceeding.” 42 Pa.C.S.A. § 9544(b). Further,

            . . . a PCRA petitioner is not automatically entitled to an
      evidentiary hearing.    We review the PCRA court’s decision
      dismissing a petition without a hearing for an abuse of
      discretion.

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

Commonwealth v. Miller, 102 A.3d 988, 992 (Pa. Super. 2014) (citations

omitted).




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      In his issue on appeal, Appellant claims he received ineffective

assistance of trial counsel because counsel failed to investigate or call an

alibi witness at trial. (See Appellant’s Brief, at 14). We disagree.

      Counsel is presumed effective, and an appellant bears the burden to

prove otherwise.   See Commonwealth v. McDermitt, 66 A.3d 810, 813

(Pa. Super. 2013). The test for ineffective assistance of counsel is the same

under both the Federal and Pennsylvania Constitutions. See Strickland v.

Washington, 466 U.S. 668, 687 (1984); Commonwealth v. Jones, 815

A.2d 598, 611 (Pa. 2002).     An appellant must demonstrate 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

reasonable probability that the outcome of the proceedings would have been

different. See Commonwealth v. Pierce, 786 A.2d 203, 213 (Pa. 2001),

abrogated on other grounds by Commonwealth v. Grant, 813 A.2d 726

(Pa. 2002). “A failure to satisfy any prong of the test for ineffectiveness will

require rejection of the claim.” Jones, supra at 611 (citation omitted).

      In order to show that trial counsel was ineffective in failing to present

the testimony of a witness, Appellant must demonstrate:

      the existence of and the availability of the witnesses, counsel’s
      actual awareness, or duty to know, of the witnesses, the
      willingness and ability of the witnesses to cooperate and appear
      on the defendant’s behalf and the necessity for the proposed
      testimony in order to avoid prejudice. Moreover, [an a]ppellant


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      must show how the uncalled witnesses’ testimony would have
      been beneficial under the circumstances of the case.

Commonwealth v. Gibson, 951 A.2d 1110, 1133 (Pa. 2008) (quotation

marks and citations omitted).

      Even assuming, arguendo, that Appellant has demonstrated that

counsel was aware of the existence of the witness, his claim must fail

because Appellant has not demonstrated the willingness and ability of the

witness to testify on his behalf. In his Turner/Finley letter, PCRA counsel

stated that he was “unable to communicate” with the proposed alibi witness

and noted that, in correspondence, Appellant informed him that the witness

was unsure if she was willing to cooperate.          (Turner/Finley Letter,

8/29/14, at 7). Appellant did not reply to the Rule 907 notice or provide the

PCRA court with any witness certifications or other documentation from the

alibi witness concerning her willingness to testify. Thus, Appellant has not

shown that trial counsel was ineffective for failing to call an alibi witness.

See Gibson, supra at 1133-34. Therefore, there is no basis to upset the

PCRA court’s finding that Appellant was not entitled to PCRA relief.

      Appellant also claims that the PCRA court erred in dismissing his

petition without an evidentiary hearing. The Pennsylvania Rules of Criminal

Procedure provide the trial court with the discretion to dismiss a PCRA

petition without an evidentiary hearing if it is patently without merit. See

Pa.R.Crim.P. 907.    Because Appellant’s ineffective assistance of counsel




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claim lacks merit, he is not entitled to an evidentiary hearing. See Miller,

supra at 992.

      Accordingly, for the reasons discussed above, we affirm the PCRA

court’s dismissal of Appellant’s PCRA petition without a hearing.

      Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/2/2015




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