J-S26019-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
MELVIN BLAMO, :
:
Appellant : No. 1519 EDA 2013
Appeal from the PCRA Order Entered April 26, 2013,
In the Court of Common Pleas of Philadelphia County,
Criminal Division, at No. CP-51-CR-0704391-2006.
BEFORE: BENDER, P.J.E., SHOGAN and FITZGERALD*, JJ.
MEMORANDUM BY SHOGAN, J.: FILED AUGUST 27, 2014
Appellant, Melvin Blamo, appeals from the denial of his petition filed
9546. We affirm.
We previously summarized the relevant facts and procedural history of
this appeal as follows:
-
the checking account of Alhaji Tholley. On June 22, 2006, Co-
defendant, Appellant, and approximately ten cohorts confronted
Mr. Tholley at a local park. The men approached Mr. Tholley,
surrounded him, and brandished firearms. Co-defendant warned
Mr. Tholley not to appear in court to testify against Co-defendant
in the theft case. Following this warning, the men beat Mr.
attempted to intervene. At that point, Mr. Tholley and Mr.
Dukaray fled. During their flight, one of the assailants drew his
weapon, opened fire, and shot Mr. Dukaray in the back. Mr.
Dukaray required hospitalization for his injuries.
____________________
*Former Justice specially assigned to the Superior Court.
J-S26019-14
Appellant and Co-defendant proceeded to a joint trial on
May 20, 2009.2 Following jury selection, the Commonwealth
informed the court that it could not locate Mr. Tholley, and it did
not expect him to appear at trial. Consequently, the
-
receiving evidence regarding the Commonweal
locate Mr. Tholley, the court permitted the introduction of Mr.
testimony into the record. Mr. Tholley surprised everyone and
actually appeared at trial to testify in person on May 22, 2009.
At the conclusion of trial, the jury found Appellant guilty of
aggravated assault, retaliation against a witness, intimidation of
a witness, and conspiracy.
2
Co-defendant absconded prior to the start of trial,
and the court tried him in absentia.
On June 30, 2009, the court sentenced Appellant to an
aggregate term of one hundred twenty-three (123) to three
hundred sixty (360) months of imprisonment. Appellant timely
filed a motion for reconsideration of sentence on July 7, 2009.
Thereafter, Appellant obtained new counsel. On August 31,
2009, new counsel filed a supplemental post-sentence motion on
alleged trial counsel was ineffective for failing to present
character witnesses. The court subsequently determined the
ineffectiveness challenge should be deferred to collateral review.
reconsideration of sentence was denied by operation of law.
Appellant timely filed a notice of appeal on December 31,
2009. On January 21, 2010, the court ordered Appellant to file a
concise statement of matters complained of on appeal, pursuant
to Pa.R.A.P. 1925(b). Appellant subsequently complied with the
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Commonwealth v. Blamo, 29 A.3d 826, 43 EDA 2010 (Pa. Super. 2011)
(unpublished memorandum at 1 3). We affirmed the judgment of sentence
on April 8, 2011.
Appellant filed a counseled petition pursuant to the PCRA on May 7,
2012, which, after notice, the PCRA court dismissed without a hearing on
April 26, 2013. Appellant filed a timely notice of appeal. The PCRA court
directed Appellant to file a concise statement of the errors complained of on
appeal within twenty-one days of the date of the order pursuant to Pa.R.A.P.
1925(b), or by July 15, 2013. The record certified to us on appeal revealed
that while no such statement was filed or docketed, it appeared that a Rule
1925(b) statement had been served upon the Philadelphia District Attorney
on July 15, 2013. Thus, on July 11, 2014, this Court directed Appellant to
file of record the Rule 1925(b) statement previously served on the
Commonwealth. The resulting supplemental record was then certified and
transmitted to this Court.
Appellant raises the following single issue on appeal:
he was afforded ineffective assistance of trial counsel whose
decision to forego the presentation of readily available character
witnesses was objectively unreasonable and prejudiced
appellant.
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Our standard of review of an order denying PCRA relief is whether the
findings of the PCRA court are supported by the record and are free of legal
error. Commonwealth v. Spotz, 18 A.3d 244, 259 (Pa. 2011);
Commonwealth v. Hernandez, 79 A.3d 649, 651 (Pa. Super. 2013). It is
his conviction or sentence resulted from one or more of the enumerated
determinations, when supported by the record, are binding on this Court.
Spotz, 18 A.3d at 259.
Counsel is presumed effective, and Appellant bears the burden of
provin Commonwealth v. Koehler, 36 A.3d
121, at 132 (Pa. 2012). To rebut that presumption, Appellant must
prejudiced him. Strickland v. Washington, 466 U.S. 668, 687 691
(1984). Our Supreme Court has characterized the Strickland standard as
tripartite. Commonwealth v. Pierce, 527 A.2d 973, 975 (Pa. 1987).
Thus, to prove ineffective assistance of counsel, Appellant must demonstrate
that: (1) the underlying iss
lacked an objective reasonable basis; and (3) Appellant was prejudiced by
Koehler, 36 A.3d at 132. Moreover, counsel
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cannot be deemed ineffective for failing to raise a meritless claim.
Commonwealth v. Harris, 852 A.2d 1168, 1173 (Pa. 2004).
assistance is deemed constitutionally effective if he chose a particular course
that had some reasonable basis designed to eff
Koehler, 36 A.3d at 132 (quoting Commonwealth v. Colavita, 993 A.2d
e
Commonwealth v.
Ly, 980 A.2d 61, 73 (Pa. 2009). A court is not required to analyze the
fails under any necessary element of the Strickland test, the court may
Koehler, 36 A.3d at 132.
present the testimony of witnesses, Appellant must show that:
(1) the witness existed; (2) the witness was available; (3) trial
counsel was informed of the existence of the witness or should
prepared to cooperate and would
have testified on the
ence of the testimony
prejudiced the petitioner. Commonwealth v. Miller, 868 A.2d
578, 581-82 (Pa. Super. 2005) (quotation omitted).
Commonwealth v. Hammond, 953 A.2d 544, 556 (Pa. Super. 2008).
minal
prosecution must be limited to his general reputation for the
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particular trait or traits of character involved in the commission
Commonwealth v. Luther, 317 Pa.
Super. 41, 463 A.2d 1073, 1077 (1983) (citations omitted).
evidence must relate to a period at or about the time the
testimony of witnesses as to the community opinion of the
Id. at 1077-78 (citations omitted) (emphasis in original).
Commonwealth v. Lauro, 819 A.2d 100, 109 (Pa.Super. 2003). Failure to
ineffectiveness. Id.
The PCRA Court has filed a sufficient and complete analysis of the
issue presented on appeal in its Pa.R.A.P. 1925(a) opinion, and we rely upon
it in affirming this case. We supplement that decision in one minor respect.
s character evidence, PCRA petition, 5/7/12, at unnumbered 3,
and he cites this contention as support for his claim that he was prejudiced
Our review of the trial testimony, however, discloses a vigorous defense that
victim. N.T., 5/22/09, at 28 46. Indeed, in his appellate brief, Appellant
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As noted above, the PCRA court has completely addressed the issue
Appellant presented in his petition, and we adopt its reasoning as our own.
Accordingly, we affirm the order denying PCRA relief.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/27/2014
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IN THE COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY
FIRST JUDICIAL DISTRICT OF PENNSYLV ANIA
COMMONWIEALTH OF PENNSYLVANIA
CP·51-CR·0704391·2006
v.
FILED
JUL 18 2013 SUPERIO R COURT
1519 EDA 2013
. Criminal Appeals Unit
MELVIN BLAMOFirst Judicial District of PA
.,...,
r.r~' o.:R.:r. ... J91lOO6 """"', ~ Ill""'" """"'"
OPINION
CHRIS R. WOGAN, •T. 1111111111111111111111111
7043081241
Procedural Posture
The Supennj' loun ser out the facts and proceduraJ his-tOry 0 1 this case as
f'JlIo\\''!l In defendant's dlrecr appeal to that court:
In 2005. Charles Yancy ("Co-defendant") tOok fund, from tbe cheelung
.ceouot of ,~ Ihaij Tholley. On June 22, 2006. Co-defendant, Appellant,
and apprDXlmatdy tcn cohorts confronted f\lr. ThoUey at a local park.
The men approached Mr. ThoUey, surrounded him, and brandIShed
firearms. Co-defendant warned ~1r Tholley not [Q appear ill court 10
t\pril 8, 201 O.
Defendant's sentence was affinned on direct ~ppeal . as cited above.
On May 7, 2012, PCR.>\. counsel \X ayne Sachs, EsqulI<. Filed.r "PenDon For
.~nd Consobdated I\lemorandum Of Law In Support Of .Post-ConVlcDoo Rdief
unJcr 42 PACS. SeeMn 9541, ft. H9." On September 28,2012, the Commonwealrh
fiJeJ It!'. !-.100Ull to DtsrJUss, On MarcJl 5,2013, rJus CClurt sent defendant a J\ionce
pursuant to Pa.RCrim.P, 907, rhat the issues raJsed in his reM Petioon were
Co-defendant absconded pnor to the starr of trtal, and [he court cried h.im in
absenlia.
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WIthout ment. On Ap[l] 26, ~013, t1u, coun formally dJSllU>5cd defendsnr\ PClL\
Petition.
On May 23,2013, defendant filed Ius No~ce of Appeal, represented by \'eaync
Sachs, EsqUire. On June 24, 2013, thiS court ord ered defendant to file a 1925(b.'
Statement ofJ\latters Comp lamed of on'\.ppeal.
Discussion
Defenuan[ cialmed In hlS peRA Pefloon that mal counsel. Lawrence \'7e!!'h,
EsquIre, falled to present tesumony of reacWy availahle character witnesses based on
counsel's nusundcrstandtng or appltcable law. Oefelldant\ enure claim re:'its on Ius
Inrerpreranon of [he law rhar the Commonwealth rna}' only Closs-exarrune a character
\VltneS!:i. countering testunony of pt(1cefuJ non-vIolent behavior of dctcndam at (he
orne of [he underlying cnme, Wlth a sepnrare cnml: comrrutred bv defendant before
the underlYIng cIIme and for which he had already been CQI1VICred and sentenced
before the undc:r.Iywg offen!'e was commmed. nus readmg amounts to a \lvlndfd.u for
defenJant. b contrary to the truth~deremurung process at uiaJ, and IS not suppOtl hy
the c",os ctcd by defendam.
As the Comrnonwcaltll correctly noted, Commonw,alt/] o. Rim, 856 A.2d 03
t.Pa.Suptr 200·n "was concerned Wlth whether (he Judgments u~ed to Impe.'\ch were
final at the time o f trial. R56 A.2d 'U 97 .98 (holding u,c of one·day old com1coon,
(0 lIDpeach character WItnesses was llTlpemusslble because: the COnVlcoons wele
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unsenrenced at tune 01 rnal; relYlOg on Commonwealtli 1'. z.:,pald, 314 A,2d 299 n'a
19-4), whIch held (f1al coun~e1 was Ulcf(ecov~ for fl::vl.!aLn~ Ius clien['~ two poor
convictions for volunt-ary manslaughter when the chent had ntH yer been ~en[enccd at
toe Dmc of trml)." "[TJhe Commonwcltlth could have used defendant's mo~t seuuus
pnor judgments to lffipeach tiny character resumony a" [(I hl<; non-YIOlenr and law-
abiding character." As the Commonwealth set' our: "Defendant was scnrenced nn
those ,udgmcnts---gUilty ple:ls TO charge~ of unauthorlzed u~t of d mOlO! vt:hicle.
dtsordedy conduct and dnVlng Wlthout a ucense----on \1ay 30, 200""), about [wo J'~'U:s
before ills maim this case'" See Commonwealth ~ronun to Dlsmls~, p. 5. \nd, as
the Commonwealth notes, "fmctic1IuJgmem::; abo mc.::ct the rt:qwrUTII,;Tlh
of.. .Commoll,,',allh r'. N,lIo"" 565 A.2ed "70 Pa.Super I q~9 . . t