J-S38030-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA              :    IN THE SUPERIOR COURT OF
                                           :         PENNSYLVANIA
                                           :
              v.                           :
                                           :
                                           :
 ALFONSO BODDIE,                           :
                                           :
                    Appellant              :    No. 3120 EDA 2018

           Appeal from the PCRA Order Entered October 17, 2018
  In the Court of Common Pleas of Philadelphia County Criminal Division at
                     No(s): CP-51-CR-0000248-2015


BEFORE:    OTT, J., DUBOW, J., and COLINS*, J.

MEMORANDUM BY DUBOW, J.:                           FILED OCTOBER 25, 2019

      Appellant, Alfonso Boddie, appeals from the October 17, 2018 Order

dismissing as meritless his first Petition for relief filed pursuant to the Post

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

effectiveness of his trial and appellate counsel. After careful review, we affirm.

      On direct appeal, we summarized the facts underlying Appellant’s

convictions as follows:

      [At Appellant’s bench trial, the victim] testified that in the early
      morning hours of October 25, 2014, at approximately 12:30 a.m.,
      she left her apartment, in the City and County of Philadelphia,
      intending to go to her brother's house in another part of the city.
      She left after an argument with her husband and without any
      money. As she approached the 4400 block of Frankford Ave, she
      encountered a woman who offered to help her find a ride and who,
      a short while later, introduced her to [Appellant] who offered to
      take her to her brother's house.

      [Appellant] appeared to be respectful and to be nonthreatening,
      so [the victim] accompanied [Appellant] up to his apartment,
      where they talked and she drank a beer. At approximately 2:00
____________________________________
* Retired Senior Judge assigned to the Superior Court.
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     a.m. they drove to two separate locations looking to purchase
     more beer. They returned at approximately 3:30 a.m. with a few
     beers and a water bottle containing a pink liquid. She went up to
     [Appellant]'s apartment and drank more beer.

     A short while after returning, [Appellant] became angry when he
     couldn't find the water bottle. Attempting to calm him down[, the
     victim] turned on the radio, to no avail. She testified that at this
     point [Appellant] grabbed her and started pulling her towards the
     bedroom. Stalling for time, she persuaded him to let her go into
     the kitchen to wash her hands where she found a knife which she
     put in her pants and returned to the couch. She testified that
     [Appellant] then pulled her onto the bed, she told him; “No, I don't
     want to do this.” He then started to remove her clothes and “put
     his penis in [her].” She also testified that although she attempted
     to fight [Appellant] off, he got further up on her and started to
     choke her in an attempt to further subdue her.

     She told [Appellant] that she had to go to the bathroom, and
     instead she fled down the stairs. [Appellant], grabbing her by her
     hair, caught her at the top of the stairs, whereupon, she turned
     around and started stabbing him. When [Appellant] loosened his
     grip, she dropped the knife and fled naked out into the street.

     Mr. Thomas Redstone–Brophy testified that he is employed as a
     sexual assault nurse examiner at the Philadelphia Sexual Assault
     Response Center and, that as part of his duties, he examined [the
     victim] that same day, at approximately 12:45 p.m. As part of his
     examination, he took pictures of her neck showing bruising, which
     he testified was consistent with strangulation.

Commonwealth v. Boddie, No. 3734 EDA 2015 (Pa. Super. February 28,

2017) (unpublished memorandum).

     On January 15, 2014, after a bench trial, the trial court found Appellant

guilty of Rape, Indecent Assault, Sexual Assault, and Unlawful Restraint. On

October 15, 2015, the trial court sentenced Appellant to an aggregate term of

7 to 15 years’ incarceration. Appellant filed a timely Post-Sentence Motion,

which the trial court denied on November 25, 2015. On December 3, 2015,


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Appellant timely appealed, and on February 28, 2017, this court affirmed

Appellant’s Judgment of Sentence. Id. Appellant did not seek allocator in the

Supreme Court of Pennsylvania.

       On June 16, 2017, Appellant filed a timely pro se PCRA Petition. The

PCRA court appointed counsel, and on February 20, 2018, Appellant filed an

Amended PCRA Petition, asserting, inter alia, ineffective assistance of counsel.

On October 17, 2018, the PCRA court dismissed Appellant’s Petition as

meritless.1

       Appellant timely appealed. Both Appellant and the PCRA Court complied

with Pa.R.A.P. 1925.

       Appellant raises the following issues for our review:

       1. Whether the court erred in denying [] Appellant’s PCRA
          [P]etition without an evidentiary hearing on the issues raised
          in the [A]mended PCRA Petition regarding trial counsel’s
          ineffectiveness.

       2. Whether the court erred in not granting relief on the PCRA
          [P]etition alleging counsel was ineffective?

Appellant’s Br. at 8.

____________________________________________


1 Our review of the record reveals that the PCRA court did not hold a hearing
on the Amended PCRA Petition. We acknowledge that the PCRA court failed
to provide Appellant the mandatory Pa.R.Crim.P. 907 Notice of its intent to
dismiss the Petition without a hearing. However, Appellant has not challenged
this on appeal and, thus, the issue is waived. See Commonwealth v.
Taylor, 65 A.3d 462, 468 (Pa. Super. 2013) (“The failure to challenge the
absence of a Rule 907 notice constitutes waiver.”)




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      “Our standard of review of a PCRA court’s dismissal of a PCRA petition

is limited to examining whether the PCRA court’s determination is supported

by the record evidence and free of legal error.” Commonwealth v. Root,

179 A.3d 511, 515-16 (Pa. Super. 2018) (citation omitted). This Court grants

great deference to the findings of the PCRA court if the record supports them.

Commonwealth v. Boyd, 923 A.2d 513, 515 (Pa. Super. 2007). We give no

such deference, however, to the court’s legal conclusions. Commonwealth

v. Ford, 44 A.3d 1190, 1194 (Pa. Super. 2012).

      A PCRA petitioner is not automatically entitled to an evidentiary

hearing. Commonwealth v. Jones, 942 A.2d 903, 906 (Pa. Super. 2008).

“[I]f the PCRA court can determine from the record that no genuine issues of

material fact exist, then a hearing is not necessary.” Id. (citation omitted).

“With respect to the PCRA court’s decision to deny a request for an evidentiary

hearing, or to hold a limited evidentiary hearing, such a decision is within the

discretion of the PCRA court and will not be overturned absent an abuse of

discretion.”   Commonwealth v. Mason, 130 A.3d 601, 617 (Pa. 2015).

When the PCRA court denies a petition without an evidentiary hearing, we

“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.

Khalifah, 852 A.2d 1238, 1240 (Pa. Super. 2004) (citation omitted).




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      In his Amended PCRA Petition and in his Brief, Appellant claims that his

trial counsel was ineffective for failing to:   1) seek reconsideration of his

sentence; 2) investigate, interview, and call witnesses to testify at trial; 3)

present character witnesses at sentencing; and 4) “accept” a mistrial.

Amended PCRA Petition, 2/20/18, at 3, ¶ 19; Appellant’s Br. at 16-21, 23-24.

Appellant also claims that appellate counsel was ineffective for failing to

challenge the weight of the evidence. Amended PCRA Petition, 2/10/18, at 3,

¶ 19; Appellant’s Br. at 21-23.

      We presume counsel is effective. Commonwealth v. Cox, 983 A.2d

666, 678 (Pa. 2009). To overcome this presumption, a petitioner must

establish that: (1) the underlying claim has arguable merit; (2) counsel lacked

a reasonable basis for his act or omission; and (3) petitioner suffered actual

prejudice. Commonwealth v. Treiber, 121 A.3d 435, 445 (Pa. 2015). In

order to establish prejudice, a petitioner must demonstrate “that there is a

reasonable probability that, but for counsel’s error or omission, the result of

the proceeding would have been different.” Commonwealth v. Koehler, 36

A.3d 121, 132 (Pa. 2012) (citation omitted). A court will deny the claim if the

petitioner fails to meet any one of these prongs. Commonwealth v. Jarosz,

152 A.3d 344, 350 (Pa. Super. 2016).

      In his first averment, Appellant claims that trial counsel was ineffective

for failing to file a motion seeking reconsideration of his sentence. Amended

PCRA Petition, 2/20/18, at 3, ¶ 19(A). Appellant argues that the sentencing

court erred when it failed to consider the relevant sentencing factors when

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imposing Appellant’s “harsh and unreasonable” sentence, despite the fact that

the sentencing court issued a sentence within the sentencing guidelines. See

Id. at 12-13.

      When asserting that trial counsel is ineffective for failing to file a motion

for reconsideration of sentence, the petitioner must prove actual prejudice.

Commonwealth v. Reaves, 923 A.2d 1119, 1131–32 (Pa. 2007).                      To

demonstrate prejudice, a petitioner must plead and prove that a motion to

reconsider sentence, if filed, would have led to a “different and more favorable

outcome[,]” namely, “if counsel’s objection secured a reduction of his

sentence.” Id.

      Instantly, the PCRA court concluded that Appellant failed to plead and

prove that trial counsel’s failure to file a motion to reconsider sentence

prejudiced Appellant. We agree.

      The trial court noted that it sentenced Appellant “only on the [R]ape

charge to a period of confinement of 7 to 15 years, clearly within the lower

range of the guidelines” and concluded that Appellant’s “sentence was

reasonable under the circumstances and had [Appellant] filed a motion for

reconsideration, the [c]ourt would have denied it.”         PCRA Ct. Op., filed

11/15/18, at 7.       Appellant fails to demonstrate that a motion for




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reconsideration would have secured a reduction in his guideline sentence, and,

thus, Appellant failed to meet the prejudice prong of the ineffectiveness test.2

       Appellant next avers that trial counsel was ineffective when he failed to

investigate, interview, and call witnesses to testify at trial. Id. at 3, ¶ 19(B).

Appellant baldly asserts, without citation to the record or certifications from

trial counsel or any potential witnesses, that trial counsel failed to investigate,

interview, and call on-scene witnesses that would have been beneficial to his

defense, including a “black woman” on the street corner and “[p]aramedics[.]”

Id. at 13.

       Our Supreme Court has explained, “failing to interview a witness is

distinct from failure to call a witness to testify.” Commonwealth v. Dennis,

950 A.2d 945, 960 (Pa. 2008). Moreover, “where there is a limited amount

of evidence of guilt, it is per se unreasonable not to attempt to investigate

and interview known eyewitnesses in connection with defenses that hinge on

the credibility of other witnesses.” Id. (emphasis in original).    However, the

petitioner still has the burden to plead and prove that such an omission is

prejudicial. Id.




____________________________________________


2 Moreover, Appellant’s single-sentence assertion in his Amended PCRA
Petition that “there was no ‘reasonable basis’ for counsel not to file a timely
motion to reconsider the Petitioner’s sentence” fails to meet the second prong
of the ineffectiveness test and is, likewise, fatal to his claim. See Amended
PCRA Pet., 2/20/18, at 13.



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      When a petitioner raises a claim of failure to call a potential witness, the

petitioner must establish that:

      (1) the witness existed; (2) the witness was available to testify
      for the defense; (3) counsel knew of, or should have known of,
      the existence of the witness; (4) the witness was willing to testify
      for the defense; and (5) the absence of the testimony of the
      witness was so prejudicial as to have denied the defendant a fair
      trial.

Commonwealth v. Johnson, 966 A.2d 523, 536 (Pa. 2009). To satisfy the

prejudice prong of this analysis, a defendant “must show how the uncalled

witnesses’ testimony would have been beneficial under the circumstances of

the case.”    Commonwealth v. Gibson, 951 A.2d 1110, 1134 (Pa. 2008)

(citations omitted).

      The trial court concluded that Appellant failed to establish that the

proposed witnesses actually existed or that their testimony would have an

effect on the outcome of the trial. PCRA Ct. Op. at 8. We agree. As stated

above, Appellant did not provide the trial court or this Court with certifications

indicating that the putative witnesses were available and willing to testify, that

counsel knew of their existence, and verifying the substance of their

testimony. Appellant, thus, fails to meet his burden to plead and prove that

trial counsel was ineffective.

      Appellant next contends that trial counsel was ineffective for failing to

present character witnesses at sentencing. Amended PCRA Pet., 2/20/18, at

3, ¶ 19(D).




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      For this claim, Appellant does provide nine potential witness affidavits

attesting to his good reputation in the community and averring that each

witness existed, each witness was available, and each witness was willing to

testify for the defense. See id. at Appendix A. However, aside from a bald

assertion that “counsel did not call any of the character witnesses that

petitioner requested be called at sentencing[,]” Appellant did not plead and

prove that counsel knew or, or should have known of, the existence of the

witnesses. See id. at 16.     Moreover, Appellant, who received a guideline

sentence, fails to plead and prove what, if any, prejudice he suffered because

of trial counsel failing to call the nine character witnesses. Finally, the PCRA

court opined, “given the seriousness of his crime, these statements . . . would

have had no impact on his sentence.” PCRA Ct. Op. at 8. Appellant, once

again, fails to meet his burden to plead and prove that trial counsel was

ineffective.

      Appellant next contends that trial counsel was ineffective for failing “to

accept a mistrial when one was offered by the [c]ourt after the [Assistant

District Attorney (“ADA”)] introduced prior bad acts to the judge.” Amended

PCRA Pet., 2/20/18, at 19. Appellant avers that he did not understand the

ramifications of the ADA advising the court of a prior conviction prior to trial.

Id. at 20. This claim is meritless.

      Our review of the record reveals that at the start of the bench trial, the

ADA advised the court that Appellant might be subject to a second strike rule

due to a prior conviction in 1982.     N.T. Trial, 6/26/15, at 9.    Appellant’s

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counsel objected and requested that the trial court recuse itself. Id. The trial

court colloquied Appellant explaining the significance of his counsel’s

objections, and offered to declare a mistrial. Id. at 9-11. After Appellant and

his counsel engaged in discussion off the record, Appellant’s counsel informed

the court that Appellant wished to “waive the issue” and continue with the

scheduled trial. Id. at 12. The trial court stated for the record, “It doesn’t

matter. It really had no impact on – this case stands by itself. I mean, he

either did this or he didn’t do it. The fact that – what’s that, over thirty years

ago? Yeah, so what?” Id. at 12.

      The PCRA court concluded that Appellant failed to “establish that he was

prejudiced by agreeing to proceed to trial.” PCRA Ct. Op. at 13. We agree.

      In his Amended PCRA Petition, Appellant proffered nothing to the PCRA

court to refute his on-record agreement to proceed to trial and fails to explain

how or why he was prejudiced by his counsel’s actions.         Appellant merely

states, “it is clear from the above that counsel’s actions were deficient and

that Petitioner was prejudiced by counsel’s performance in this case.”

Amended PCRA Pet., 2/20/18, at 20.            Without demonstrating prejudice,

Appellant fails to meet his burden to plead and prove that trial counsel was

ineffective.

      Finally, Appellant asserts that appellate counsel was ineffective when he

filed a Post-Sentence Motion asserting that the verdict was against the weight

of the evidence but did not pursue the claim on appeal. Amended PCRA Pet.

at 17-18.

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      A claim of appellate counsel ineffectiveness involves concerns unique to

appellate practice.    Commonwealth v. Lambert, 797 A.2d 232, 244 (Pa.

2001).      “Arguably meritorious claims may be omitted in favor of pursuing

claims which, in the exercise of appellate counsel's objectively reasonable

professional judgment, offer a greater prospect of securing relief.”          Id.

(citation omitted). The process of focusing on arguments that are most likely

to prevail is not “evidence of incompetence,” but, rather, “is the hallmark of

effective appellate advocacy.” Id. (citation omitted).

      It is well-settled that “[t]he weight of the evidence is exclusively for the

finder of fact [,] who is free to believe all, none or some of the evidence and

to determine the credibility of the witnesses.” Commonwealth v. Talbert,

129 A.3d 536, 545 (Pa. Super. 2015) (citation omitted).          “In order for a

defendant to prevail on a challenge to the weight of the evidence, the evidence

must be so tenuous, vague and uncertain that the verdict shocks the

conscience of the court. Id. at 546 (citation and internal quotation marks

omitted).

      The PCRA court concluded that Appellant’s underlying claim lacked

arguable merit:     “[t]he complainant’s testimony was clear and convincing;

establishing the elements of the charge of rape. After a careful review of the

record, the Court finds that, had appellate counsel challenged the complaint’s

credibility on appeal, there is little likelihood that he would have prevailed.”

PCRA Ct. Op. at 11.      Our review of the record supports the PCRA court’s

findings.

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      Moreover, Appellant fails to demonstrate, or even address, whether

appellate counsel’s decision not to pursue this claim on appeal lacked a

reasonable basis. Accordingly, this ineffectiveness claim fails.

      In conclusion, we have examined each claim of ineffective assistance of

counsel raised in the Amended PCRA Petition and have determined that there

were no genuine issue of material fact in controversy. Accordingly, the PCRA

court did not abuse its discretion when it denied PCRA relief without

conducting an evidentiary hearing. See Khalifah, 852 A.2d at 1240.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/25/19




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