Opinion
J-S36035-18 No. 3850 EDA 2016
08-14-2018
COMMONWEALTH OF PENNSYLVANIA Appellee v. RANDI HOLMES Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the PCRA Order November 17, 2016
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0010141-2011 BEFORE: GANTMAN, P.J., DUBOW, J., and KUNSELMAN, J. MEMORANDUM BY GANTMAN, P.J.:
Appellant, Randi Holmes, appeals from the order entered in the Philadelphia County Court of Common Pleas, which dismissed his first petition for collateral relief filed pursuant to the Post Conviction Relief Act ("PCRA"). We affirm.
In its opinion, the PCRA court fully and correctly set forth the relevant facts and procedural history of this case. Therefore, we have no reason to restate them.
Appellant raises the following issues for our review:
WAS TRIAL COUNSEL INEFFECTIVE FOR FAILING TO CALL [A] WITNESS WHO WOULD HAVE TESTIFIED THAT...APPELLANT NEVER POSSESSED THE FIREARM HE WAS CONVICTED OF POSSESSING AND FOR FAILING TO OBTAIN AND REVIEW DISCOVERY BEFORE TRIAL THAT
REVEALED THAT THERE WERE INCONSISTENCIES AS TO THE APPEARANCE OF THE FIREARM IN QUESTION AND FAILING TO USE THE INCONSISTENCY ON CROSS-EXAMINATION OF THE COMMONWEALTH'S WITNESSES?(Appellant's Brief at 8).
DID THE [PCRA] COURT ERR IN FAILING TO HOLD AN EVIDENTIARY HEARING BEFORE DECIDING...APPELLANT'S PCRA PETITION?
Appellant argues trial counsel was ineffective for failing to call a witness at trial whose testimony would have challenged the arresting officers' testimony about the circumstances of Appellant's arrest. Appellant maintains that trial counsel's failure to utilize discovery to cross-examine the arresting officers' observations of the color of the gun handle was prejudicial to Appellant. Appellant avers that an evidentiary hearing is required for this specific matter. We disagree.
As a prefatory matter, appellate briefs must conform in all material respects to the briefing requirements set forth in the Pennsylvania Rules of Appellate Procedure. Pa.R.A.P. 2101. See also Pa.R.A.P. 2114-2119 (addressing specific requirements of each subsection of brief on appeal). Importantly, where an appellant fails to raise or develop his issues on appeal properly, or where his brief is wholly inadequate to present specific issues for review, this Court will not consider the merits of the claims raised on appeal. Commonwealth v. Knox , 50 A.3d 732 (Pa.Super. 2012), appeal denied, 620 Pa. 721, 69 A.3d 601 (2013) (reiterating failure to cite to legal authority to support argument results in waiver); Butler v. Illes , 747 A.2d 943 (Pa.Super. 2000) (holding appellant waived claim where she failed to set forth adequate argument concerning her claim on appeal; argument lacked meaningful substance and consisted of mere conclusory statements; appellant failed to explain cogently or even tenuously assert how trial court abused its discretion or made error of law). See also Lackner v. Glosser , 892 A.2d 21 (Pa.Super. 2006) (explaining arguments must adhere to rules of appellate procedure and arguments which are not appropriately developed are waived on appeal; arguments not appropriately developed include those where party has failed to cite any authority in support of contention); Estate of Haiko v. McGinley , 799 A.2d 155 (Pa.Super. 2002) (stating appellant must support each question raised by discussion and analysis of pertinent authority; absent reasoned discussion of law in appellate brief, this Court's ability to provide review is hampered, necessitating waiver on appeal).
Further, "to succeed on an allegation of...counsel's ineffectiveness...a post-conviction petitioner must, at a minimum, present argumentation relative to each layer of ineffective assistance, on all three prongs of the ineffectiveness standard...." Commonwealth v. D'Amato , 579 Pa. 490, 500, 856 A.2d 806, 812 (2004) (internal citations omitted). "[A] petitioner does not preserve a...claim of ineffectiveness merely by focusing his attention on whether...counsel was ineffective. Rather, the petitioner must also present argument as to how the second and third prongs of the [ineffectiveness] test are met with regard to the...claim." Commonwealth v. Santiago , 579 Pa. 46, 69, 855 A.2d 682, 696 (2004). "[A]n undeveloped argument, which fails to meaningfully discuss and apply the standard governing the review of ineffectiveness claims, simply does not satisfy [the petitioner's] burden of establishing that he is entitled to any relief." Commonwealth v. Bracey , 568 Pa. 264, 273 n.4, 795 A.2d 935, 940 n.4 (2001). See also Commonwealth v. Chmiel , 612 Pa. 333, 362, 30 A.3d 1111, 1128 (2011) (explaining boilerplate allegations and bald assertions of no reasonable basis and/or ensuing prejudice cannot satisfy petitioner's burden of proving ineffectiveness).
Instantly, Appellant's brief and PCRA petition contain no meaningful discussion of the three prongs of the ineffective assistance of counsel test. Appellant baldly asserts he suffered prejudice at trial when trial counsel failed to call a witness to testify at trial and use discovery materials to cross-examine the Commonwealth's witnesses. Absent more, the superficial analysis in Appellant's brief and PCRA petition does not adequately analyze his ineffectiveness claim. See Santiago , supra; Bracey , supra; Chmiel , supra. Further, to the extent Appellant purports to assert trial counsel was ineffective for failing to obtain discovery before trial, Appellant does not discuss this claim in the argument section of his brief. See Butler , supra. Therefore, Appellant waived his claims of trial counsel ineffectiveness for purposes of appellate review.
Moreover, even if Appellant had properly preserved his issues on appeal, he would not be entitled to relief. Our standard of review of the denial of a PCRA petition is limited to examining whether the evidence supports the court's determination and whether the court's decision is free of legal error. Commonwealth v. Ford , 947 A.2d 1251 (Pa.Super. 2008), appeal denied, 598 Pa. 779, 959 A.2d 319 (2008). This Court grants great deference to the findings of the PCRA court if the record contains any support for those findings. Commonwealth v. Boyd , 923 A.2d 513 (Pa.Super. 2007), appeal denied, 593 Pa. 754, 932 A.2d 74 (2007). A petitioner is not entitled to a PCRA hearing as a matter of right; the PCRA court can decline to hold a hearing if there is no genuine issue concerning any material fact, the petitioner is not entitled to PCRA relief, and further proceedings would serve no purpose. Commonwealth v. Hardcastle , 549 Pa. 450, 701 A.2d 541 (1997).
The law presumes counsel has rendered effective assistance. Commonwealth v. Williams , 597 Pa. 109, 950 A.2d 294 (2008). Under the traditional analysis, to prevail on a claim of ineffective assistance of counsel, a petitioner bears the burden to prove his claims by a preponderance of the evidence. Commonwealth v. Turetsky , 925 A.2d 876 (Pa.Super. 2007), appeal denied, 596 Pa. 707, 940 A.2d 365 (2007). The petitioner must demonstrate: (1) the underlying claim is of arguable merit; (2) counsel had no reasonable strategic basis for the asserted 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. Id. See also Commonwealth v. Kimball , 555 Pa. 299, 724 A.2d 326 (1999). "A reasonable probability is a probability that is sufficient to undermine confidence in the outcome of the proceeding." Commonwealth v. Spotz , 624 Pa. 4, 34, 84 A.3d 294, 312 (2014) (quoting Commonwealth v. Ali , 608 Pa. 71, 86-87, 10 A.3d 282, 291 (2010)). "Where it is clear that a petitioner has failed to meet any of the three, distinct prongs of the...test, the claim may be disposed of on that basis alone, without a determination of whether the other two prongs have been met." Commonwealth v. Steele , 599 Pa. 341, 360, 961 A.2d 786, 797 (2008).
After a thorough review of the record, the briefs of the parties, the applicable law, and the well-reasoned opinion of the Honorable Paula Patrick, we conclude Appellant's issues merit no relief, even if he had properly preserved them. The PCRA court opinion comprehensively discusses and properly disposes of the questions presented. ( See PCRA Court Opinion, filed November 28, 2017, at 6-15) (finding: (1) Mr. Collins' testimony would have been cumulative of other testimony presented at trial; at trial, Emmanuel Jones testified Mr. Collins "told the cops that it was his gun"; in light of cumulative nature of Mr. Collins' proposed testimony, trial counsel was not ineffective for failing to call Mr. Collins as witness at trial; Appellant also failed to establish there is reasonable probability that outcome of trial would have differed if counsel had questioned police officers regarding their observations of handle of firearm; record demonstrates trial counsel cross-examined Commonwealth's witnesses on relevant issues; evidence adduced at trial was sufficient to establish Appellant's guilt; more intensive cross-examination of officers regarding color of handle of gun would not have undermined evidence of Appellant's guilt; (2) PCRA court properly dismissed Appellant's PCRA petition without hearing, because record was clear and evidentiary hearing would have served no purpose). The record supports the PCRA court's rationale, and we see no reason to disturb it. See Ford , supra. Accordingly, even if Appellant had properly preserved all his issues on appeal, we would affirm based on the PCRA court opinion.
Order affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 8/14/18
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