J-S41023-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

STEWART C. SMITH

                            Appellant                No. 1127 MDA 2016


                   Appeal from the PCRA Order May 12, 2016
               In the Court of Common Pleas of Dauphin County
              Criminal Division at No(s): CP-22-CR-0003032-2013


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

MEMORANDUM BY LAZARUS, J.:                      FILED SEPTEMBER 07, 2017

        Stewart C. Smith appeals from the order, entered in the Court of

Common Pleas of Dauphin County, dismissing his petition filed pursuant to

the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. After

careful review, we affirm.

        On May 6, 2013, Smith was charged with multiple offenses stemming

from the alleged rape of his then-girlfriend, Angela Lewis.    On April 25,

2014, following a two-day jury trial, Smith was convicted of sexual assault,

indecent assault-without consent of other, and simple assault.1 On July 29,


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*
    Retired Senior Judge assigned to the Superior Court.
1
  18 Pa.C.S.A. § 3122; 18 Pa.C.S.A. § 3126; 18 Pa.C.S.A. § 2701,
respectively.
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2014, Smith was sentenced to an aggregate sentence of 7 to 14 years of

state incarceration.

       Smith filed no post-sentence motions; however, Smith did file a notice

of appeal on August 1, 2014. Attorney Walden was permitted to withdraw

and Smith was ordered to file a Pa.R.A.P. 1925(b) statement of errors

complained of on appeal. Smith then filed a motion for new trial nunc pro

tunc on August 27, 2014, which was denied on August 29, 2014.

       On October 9, 2014, the trial court held a Grazier2 hearing, at which

time the Dauphin County Public Defender’s Office took over Smith’s case.

The Public Defender’s Office was granted extra time to file an amended Rule

1925(b) statement, which it filed on November 4, 2014. On November 13,

2014, the trial court issued its 1925(a) opinion. On November 20, 2014, the

Dauphin County Public Defender’s Office filed a notice of discontinuance of

action pursuant to Pa.R.A.P. 1973.

       On December 14, 2014, Smith filed a timely pro se petition pursuant

to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. On

November 23, 2015, Smith filed a supplemental PCRA petition and a

supporting legal memorandum.            On April 18, 2016, the PCRA court found

Smith’s sentence exceeded the statutory maximum and filed a PCRA order

granting Smith a resentencing hearing and giving notice of intent to dismiss


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2
    Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).



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his other PCRA claims. The trial court resentenced Smith to 4½ to 10 years’

imprisonment on May 10, 2016, and the trial court entered the sentencing

order on the docket on May 16, 2016.3 On June 6, 2016, Smith timely filed

a notice of appeal to this Court appealing the PCRA court’s May 12, 2016

Order dismissing the remainder of his PCRA claims.         On June 27, 2017,

Smith timely filed a concise statement of errors complained of on appeal

pursuant to Pa.R.A.P. 1925(b), in which he raises the following issues:

       1. Whether the PCRA court erred by concluding that the trial
       counsel was not ineffective in her failure to prevent and/or
       object to references concerning the Appellant’s prior criminal
       acts and present state prison incarceration?

       2. [W]hether the trial court abused its discretion by not ordering
       an evidentiary hearing concerning the trial counsel’s strategy of
       allowing prior crimes and present incarceration to be introduced
       by the Commonwealth without objecting or seeking a mistrial?

       3. [W]hether the trial court erred in not ordering an evidentiary
       hearing concerning trial counsel’s strategy in not obtaining
       records to impeach the complaining witness and corroborate the
       Appellant’s defense?

Brief of Appellant, at 3.

       Our standard of review of a PCRA court’s denial of a petition for post-

conviction relief is as follows.          We must examine whether the record

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3
   Following his resentencing, Smith filed a post-sentence motion for a new
trial, which the trial court denied on June 7, 2016. Smith timely appealed
the trial court’s May 16, 2016 sentencing order and the June 7, 2016 order
denying his post sentence motion, which finalized the judgment of sentence.
This court affirmed Smith’s judgment of sentence on August 17, 2016.
Commonwealth v. Smith, 2977 MDA 2016 (Pa. Super. August 17, 2017).



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supports the PCRA court’s determination and whether the PCRA court’s

determination is free of legal error. See Commonwealth v. Hall, 867 A.2d

619, 628 (Pa. Super. 2005). The PCRA court’s findings will not be disturbed

unless there is no support for the findings in the certified record.      See

Commonwealth v. Carr, 768 A.2d 1164, 1166 (Pa. Super. 2001).               The

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.    Commonwealth v. Koehler, 36 A.3d 121, 131 (Pa.

2012).

      First, Smith claims that his trial counsel was ineffective for failing to

prevent and/or object to references to his present state prison incarceration

and prior criminal acts. In reviewing ineffective assistance of counsel claims,

we presume that counsel provided effective representation, and thus the

petitioner   bears   the   burden    of    proving   ineffectiveness.     See

Commonwealth v. Ligons, 971 A.2d 1125, 1137 (Pa. 2009). To prevail on

a claim that counsel was ineffective, an appellant must demonstrate the

following:

      (1) the underlying claim is of arguable merit; (2) that counsel
      had no reasonable strategic basis for his or her action or
      inaction; and (3) but for the errors and omissions of counsel,
      there is a reasonable probability that the outcome of the
      proceedings would have been different.

Commonwealth v. Johnson, 868 A.2d 1278, 1281 (Pa. Super. 2005).

      However, in order to preserve his claim for appellate review, Smith

must have complied with the trial court’s order that he file a Rule 1925(b)

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statement; any issues not raised in such statement will be deemed waived.

See Commonwealth v. Lord, 719 A.2d 306, 309 (Pa. 1998). When a trial

court orders a Rule 1925(b) statement, the statement must specify the

errors to be addressed on appeal. Commonwealth v. Dowling, 778 A.2d

683 (Pa. Super. 2001). Further, when a court has to guess what issues an

appellant is appealing, that is not enough for meaningful review.         See

Dowling, at 686-87 (“[A] [c]oncise [s]tatement which is too vague to allow

the court to identify the issues raised on appeal is the functional equivalent

of no [c]oncise [s]tatement at all.”) (emphasis added).

      Instantly, Smith’s Rule 1925(b) statement does not specifically identify

the issue of whether his trial counsel was ineffective for failing to prevent

and/or object to references concerning the Appellant’s prior criminal acts

and present state prison incarceration. Rather, Smith vaguely alleges that

the “PCRA Court erred when it . . . concluded trial counsel was [not]

ineffective of [all] claims based upon the facts of this case.” Rule 1925(b)

Statement, 6/27/16, at 1-2.      Although this Court must construe a pro se

PCRA petition with liberality,   Commonwealth v. Garrison, 450 A.2d 65,

66 (Pa. Super. 1982), Smith’s boilerplate assertion that the PCRA Court

erred in concluding trial counsel provided effective assistance with regard to

all claims has not preserved any specific ineffectiveness claims for review.




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See Pa.R.A.P. 125(b)(4)(vii) (“Issues not included in the Statement . . . are

waived.”). Dowling, supra.4

       In Smith’s final claims on appeal, he avers the PCRA court erred in not

ordering an evidentiary hearing concerning:      (1) trial counsel’s strategy of

allowing the Commonwealth to introduce evidence of Smith’s prior crimes

and present incarceration without objecting or seeking mistrial, and (2) trial

counsel’s strategy in not obtaining “records” to impeach the complaining

witness and corroborate Smith’s defense. We disagree.

       The court may order an evidentiary hearing when a petition for post-

conviction relief raises material issues of fact. See Pa.R.Crim.P. 908(A)(2).

However, an evidentiary hearing regarding ineffective assistance of counsel

is unnecessary “if it is clear that: the allegation lacks arguable merit; an

objectively reasonable basis designed to effectuate appellant's interests

existed for counsel's actions or inactions; or appellant was not prejudiced by

the alleged error by counsel[.]” See Commonwealth v. Petras, 534 A.2d

483, 486 (Pa. Super. 1988) (citing Commonwealth v. Clemmons, 479

A.2d 955, 957 (Pa. 1984)).

       In ruling on Smith’s direct appeal, this Court determined that trial

counsel’s strategy of allowing the Commonwealth to introduce evidence of

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4
    Additionally, Smith’s counsel did in fact object to and request a mistrial
following the Commonwealth’s referencing, during closing argument, of
Smith’s prior criminal acts and present state prison incarceration.




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Smith’s prior crimes and present incarceration without objecting or seeking

mistrial was meritless.       Commonwealth v. Smith, 2977 MDA 2016 (Pa.

Super. August 17, 2017). Smith’s second claim couches what is essentially

the same issue he raised on direct appeal in a PCRA petition, and thus, we

find it was previously litigated for purposes of the PCRA.         Accordingly,

Smith’s second claim is not reviewable. See 42 Pa.C.S. § 9543(a)(3).

       Lastly, Smith’s claim that his trial counsel failed to procure “records”5

which would impeach the complainant and/or corroborate his defense is

meritless, as his trial counsel had an objectively reasonable basis for not

procuring such evidence. Generally, where matters of strategy and tactics

are concerned, counsel’s assistance is deemed constitutionally effective if

counsel chose a particular course that had some reasonable basis designed

to affect his client’s interest.      Commonwealth v. Puksar, 951 A.2d 267

(Pa. 2008). Here, Smith’s trial counsel diligently cross-examined the victim,

Angela Lewis, on whether or not she and Smith had previously engaged in

“rougher sex.”        N.T. Trial, 4/24/16, at 135.    Moreover, trial counsel

reiterated Smith’s defense for biting Lewis’ neck during intercourse, that

being, he attempted to emulate suggestive vampire-like behavior.           N.T.

Trial, 4/25/16, at 508. In light of the foregoing, we cannot discern an abuse

of discretion where the trial court found Smith’s trial counsel pursued a

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5
    Smith vaguely avers Facebook content and phone records contain
exculpatory evidence.



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reasonable defense strategy. Thus, Smith was not entitled to an evidentiary

hearing   on   this   issue.       Puksar,     supra;       Petras,    supra.      Cf.

Commonwealth v. Staton, 120 A.3d 277, 289-90 (Pa. 2015) (petitioner

failed to establish that trial counsel performed deficiently for failing to cross-

examine    Commonwealth        witness     with     prior   inconsistent   statement;

trial counsel did   not   ignore    paradoxes       in   witness's    testimony,   but

indirectly impeached witness       by   eliciting   such evidence     from   different

witness and accentuated disparity in testimony in closing argument).

      Order affirmed.

      GANTMAN, P.J., joins the majority.

      PLATT, J., concurs in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/7/2017




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