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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
KENNETH THOMAS
Appellant No. 1579 EDA 2014
Appeal from the PCRA Order of May 2, 2014
In the Court of Common Pleas of Philadelphia County
Criminal Division at No.: CP-51-CR-0904651-2005
BEFORE: DONOHUE, J., WECHT, J., and JENKINS, J.
MEMORANDUM BY WECHT, J.: FILED FEBRUARY 17, 2015
Kenneth Thomas appeals the May 2, 2014 order dismissing his petition
for relief pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.
§§ 9541-46. We affirm.
In an opinion prepared during Thomas’ direct appeal, the court set
forth the relevant factual history of this case as follows:
On June 16, 2005, at about 2:00 a.m., Philadelphia Police Officer
Stephen Johncola received a radio call that directed him to go to
the 500 block of East Allegheny Avenue in Philadelphia to
investigate a report of a shooting. The officer, together with his
partner [] immediately proceeded to that location where he
observed a male, later identified as Keith Raney, lying on the
sidewalk. Mr. Raney[,] who was conscious and had blood on his
shirt, told Officer [Johncola] that he had been shot on E Street
by a man named Kenny who lived on Hurley Street. Mr. Raney
then lost consciousness. He was taken by rescue squad to a
nearby hospital where he subsequently died.
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An autopsy was performed on the body of Mr. Raney on June 17,
2005. It revealed that Mr. Raney died as a result of having been
shot multiple times.
Just prior to the shooting, Mr. Robert Eury was walking to a
Chinese takeout restaurant located near his home. As he was
proceeding to the restaurant he heard a gunshot and then saw
Mr. Raney[,] who had been running, fall to the ground.
[Thomas] immediately drove up in a white car, got out of it, and
approached Mr. Raney who was lying face down on the
pavement. As [Thomas] was standing over Mr. Raney, Mr. Eury
heard three or more gunshots.
Following the shooting, Mr. Eury returned home. The police
came to his residence shortly thereafter and took him to police
headquarters. Once there, Mr. Eury gave [the] police a
statement and had him look at [] photographs. He identified a
photograph depicting [Thomas].
Mr. Shannon Shields also was present in the area where the
shooting occurred. According to Mr. Shields, he was near the
corner of Allegheny Avenue and Hartville Street when he heard
gunfire and then saw Mr. Raney run by him. Mr. Raney was
stumbling and had blood visible on his clothing. Raney
continued running and stumbling for approximately a half of a
block at which time Mr. Shields saw a white car being driven by
[Thomas] drive by, and make a U-turn. Mr. Shields then heard a
gunshot and saw Mr. Raney stumble and fall.
Raney, however, got up again and began stumbling up the
street. Mr. Shields went home after witnessing this incident.
On June 22, 2005, Mr. Shields was interviewed by [the] police.
During the interview, he identified a photograph of [Thomas as
the driver of] the white car [on] the night of the incident.
An arrest warrant was issued for [Thomas] on June 25, 2005.
He was arrested on June 27, 2005. After he was arrested,
[Thomas] supplied the police with [] biographical information
which included the fact that he owned a white 1990 Cutlass
Supreme.
[Thomas] testified in his own defense. He [testified] that he was
at home sleeping when Mr. Raney was shot and killed. He
indicated that he got home at midnight after visiting his
grandmother at the hospital. He further testified that Eury and
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Shields identified him because they were envious of him because
he had a car.
Trial Court Opinion, 3/8/2008, at 2-3.
Following a non-jury trial, Thomas was convicted of third-degree
murder, carrying a concealed firearm without a license, and possessing an
instrument of crime.1 On March 28, 2007, Thomas was sentenced to an
aggregate term of twenty to forty years’ incarceration. Thomas did not file
post-sentence motions, nor did he file a motion for reconsideration of his
sentence. On direct appeal, we affirmed the judgment of sentence on
October 21, 2008. See Commonwealth v. Thomas, No. 1591 EDA 2007,
slip op. at 1, 3 (Pa. Super. Oct. 21, 2008). Thomas did not file a petition
for allowance of appeal with the Pennsylvania Supreme Court.
On February 11, 2009, Thomas filed a timely PCRA petition. Counsel
was appointed to represent Thomas. On February 20, 2013, Thomas’
counsel filed an amended PCRA petition. The PCRA court subsequently
issued a notice of its intent to dismiss Thomas’ petition without a hearing
pursuant to Pa.R.Crim.P. 907. On May 2, 2014, the PCRA court formally
dismissed the petition.
On May 20, 2014, Thomas filed a notice of appeal. On May 27, 2014,
the PCRA court directed Thomas to file a concise statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(b). On May 29, 2014,
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1
See 18 Pa.C.S. §§ 2502(c), 6106, and 907, respectively.
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Thomas timely filed a concise statement. On June 9, 2014, the PCRA court
issued an opinion pursuant to Pa.R.A.P. 1925(a).
Thomas raises the following issues for our consideration:
I. The PCRA court erred by denying PCRA relief because
counsel failed to file a post-sentence motion and preserve
the issue that the verdict for third-degree murder was
against the weight of the evidence because the
Commonwealth could not prove that [Thomas] acted with
malice.
II. The PCRA court erred by denying PCRA relief because
counsel was ineffective for failing to file a post-sentence
motion for reconsideration of sentence and this issue was
waived for appellate review pursuant to Pa.R.A.P. 302(a).
III. The PCRA court erred by failing to grant an evidentiary
hearing even though there were material facts in dispute.
Brief for Thomas at 3.
Our “standard of review for an order denying post-conviction relief is
limited to whether the record supports the post-conviction court’s
determination, and whether that decision is free of legal error.”
Commonwealth v. Allen, 732 A.2d 582, 586 (Pa. 1999). The PCRA court’s
findings “will not be disturbed unless there is no support for the findings in
the certified record.” Commonwealth v. Johnson, 945 A.2d 185, 188
(Pa. Super. 2008).
Both of Thomas’ substantive claims implicate trial counsel’s
effectiveness. “[T]rial counsel is presumed to be effective and the burden to
show otherwise lies with the [Appellant].” Commonwealth v. Singley, 868
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A.2d 403, 411 (Pa. 2005) (citing Commonwealth v. Jones, 683 A.2d 1181,
1188 (Pa. 1996)). The test for ineffectiveness of counsel is as follows:
[T]he appellant must overcome the presumption of competence
by showing 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 challenged proceeding would
have been different.
Commonwealth v. Bomar, 826 A.2d 831, 855 (Pa. 2003) (citing
Commonwealth v. Kimball, 724 A.2d 326, 333 (Pa. 1999)). Failure to
satisfy any prong of the above test will result in the rejection of the
underlying claim. Commonwealth v. Jones, 811 A.2d 994, 1002 (Pa.
2002). If an appellant is unable to demonstrate prejudice, the other two
elements need not be addressed. Commonwealth v. Albrecht, 720 A.2d
693, 701 (Pa. 1998). Additionally, a PCRA appellant must set forth and
individually discuss substantively each prong of the ineffective assistance of
counsel test. See Commonwealth v. Jones, 876 A.2d 380, 386 (Pa.
2005); Commonwealth v. Wharton, 811 A.2d 978, 988 (Pa. 2002)
(“Claims of ineffective assistance of counsel are not self-proving. . . .”).
In his brief, Thomas sets forth all of the applicable legal standards that
apply to claims of ineffective assistance of counsel, including the three-part
test set forth above. See Brief for Thomas at 12. However, Thomas does
not address each of the three prongs meaningfully in discussing either of his
two substantive claims. Consequently, both of the issues are waived. See
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Commonwealth v. Steele, 961 A.2d 786, 797 (Pa. 2008) (“[U]ndeveloped
claims, based on boilerplate allegations, cannot satisfy [the appellant’s]
burden of establishing ineffectiveness.”) (citing Jones, 876 A.2d at 386;
Commonwealth v. Bracey, 795 A.2d 935, 940 n.4 (Pa. 2001)).
In his argument that counsel was ineffective for failing to file a post-
sentence motion raising a challenge to the weight of the evidence, Thomas
addresses at length the standards applicable to a weight challenge, and
argues that the verdict in fact was against the weight of the evidence.
Thomas also notes that he requested counsel to file the motion, and that
counsel failed to do so. See Brief for Thomas at 15-21. Thus, Thomas
adequately has addressed the arguable merit prong. However, Thomas
makes only passing references to the prejudice prong, id. at 21-22, and he
presents no discussion whatsoever addressing the reasonable basis prong.
Consequently, we must deem this issue to be waived. See Steele, supra.
Thomas also fails to execute the three-prong ineffectiveness test in his
argument that trial counsel was ineffective for failing to file a motion to
reconsider his sentence. Once again, Thomas addresses the merits of his
underlying claim extensively, see Brief for Thomas at 23-27, but addresses
only two of the three prongs of the test. The entirety of his discussion of the
three prongs consists of the following statement: “Pursuant to the standard
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set forth in Strickland/Pierce,[2 Thomas] has met his burden to prove that
he has raised a meritorious claim and that he was prejudiced by his
counsels’ failure to file a post-sentence motion.” Brief for Thomas at 27.
Such boilerplate assertions are insufficient to overcome the burden of
demonstrating that counsel was ineffective. See Steele, supra. Moreover,
Thomas does not address the reasonable basis prong at all. Again, we must
deem this issue to be waived in light of Thomas’ briefing failures.
In his last issue, Thomas argues that the PCRA court erred by not
holding an evidentiary hearing. See Brief for Thomas at 27-30. As a
general matter, “a PCRA court may decline to hold a hearing on the petition
if the PCRA court determines that a petitioner’s claim is patently frivolous
and is without a trace of support in either the record or from other
evidence.” Commonwealth v. Jordan, 772 A.2d 1011, 1014 (Pa. Super.
2001). Because Thomas has failed to demonstrate that his claims are
meritorious, the PCRA court did not err in declining to hold an evidentiary
hearing.
Order affirmed.
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2
Strickland v. Washington, 466 U.S. 668 (1984); Commonwealth
v. Pierce, 527 A.2d 973 (Pa. 1987).
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/17/2015
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