Com. v. Gray, K.

J-S18023-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee

v.

KEVIN GRAY,

Appellant No. 1453 EDA 2014

Appeal from the PCRA Order entered April 28, 2014,
in the Court of Common Pleas of Philadelphia County,
Criminal Division, at No(s): CP-51-CR-1204181-1997

BEFORE: BENDER, P.J.E., ALLEN, and MUNDY, JJ.

MEMORANDUM BY ALLEN, J.: FILED MARCH 18, 2015

Kevin Gray (“Appellant”) appeals from the order denying his petition

for relief under the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. sections

9541-46. We affirm.

The pertinent facts and procedural history have been summarized as

follows:

On the morning of November 20, 1997, [Clayton
Kimbrough] was standing at the intersection of Broad
Street and Girard Avenue in Philadelphia. He was talking
to a friend. Appellant approached Kimbrough and asked
him for beer money. Kimbrough said he didn’t have
money for beer and told [Appellant] to leave him alone.
Kimbrough testified that [Appellant] became angry and
threatened to “kick his ass.” At this point, [Appellant]
went to his car and retrieved a large garden sickle.
Appellant returned and swung the sickle at Kimbrough’s
neck and chest. Kimbrough hit [Appellant’s] arm as he
swung the sickle, causing him to drop it. Kimbrough then
threw the sickle down a storm drain and again told
[Appellant] to leave him alone.
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Appellant, however, continued his aggression. He lifted
the storm drain cover and climbed down to get the sickle.
As he pulled himself out of the storm drain, [Appellant]
laid the sickle on the ground. Kimbrough kicked the sickle
away from [Appellant] and a struggle ensued. Eventually,
Kimbrough wrestled the sickle from [Appellant] and struck
him in the ribs with it. Kimbrough testified that he feared
for his life, and that [Appellant] appeared to be under the
influence of drugs or alcohol and was not lucid. Kimbrough
threw the sickle to the ground as he heard the sirens from
an approaching police car. Appellant picked up the sickle,
ran around the corner and smashed the windshield and
hood of Kimbrough’s car with it.

Officer [Walton] Richardson, who was the first officer to
arrive at the scene, saw [Appellant] getting into his car.
Appellant’s shirt was bloodied and a sickle was on the front
seat. Officer Richardson testified that [Appellant] did not
appear to be seriously injured. Appellant told the officer
that he had been attacked by a “big black guy.” Officer
Richardson went to the corner and encountered
Kimbrough. Appellant identified Kimbrough as the
assailant. Officer Richardson then took Kimbrough into
custody. After speaking with witnesses, however, the
police released Kimbrough and arrested [Appellant].

At trial, the defense attempted to show that [Appellant]
acted in self defense. Appellant testified that he had
approached Kimbrough about a job opportunity. Appellant
claimed that Kimbrough cursed him and that, as he walked
away, Kimbrough stabbed [him] twice in the back with a
knife. According to [Appellant], Kimbrough then took the
sickle from his ([Appellant’s]) car and attacked him with it.
Appellant claimed that Kimbrough stabbed him twice in the
head with the sickle before throwing it in the storm drain.
At this point, [Appellant] retrieved the sickle. Appellant
testified that Kimbrough disarmed him and stabbed him
two more times. Appellant denied damaging Kimbrough’s
car. Appellant also claimed that he had to be carried to his
car by two people because of the severity of his wounds.

Commonwealth v. Gray, 4 A.3d 200 (Pa. Super. 2010), unpublished

memorandum at 1-3 (citation omitted).

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On August 5, 1998, at the conclusion of a waiver trial, the trial court

convicted Appellant of aggravated assault with a deadly weapon and related

charges. In order to obtain a pre-sentence report and a mental health

evaluation, the trial court deferred sentencing until October 7, 1998. The

trial court released Appellant on bail. On the date for sentencing, Appellant

failed to appear, and the trial court issued a bench warrant for his arrest.

Appellant’s whereabouts were not discovered until 2006 when he was

arrested in Alabama on unrelated charges. Appellant was subsequently

extradited to Pennsylvania. On January 12, 2007, the trial court sentenced

Appellant to an aggregate term of five to ten years of imprisonment.

Appellant filed a timely motion for reconsideration of sentence, which

the trial court denied on January 22, 2007. Appellant did not file a direct

appeal. Following the filing for post-conviction relief, however, Appellant’s

appellate rights were restored nunc pro tunc. Thereafter, Appellant filed a

timely appeal to this Court. On May 24, 2010, this Court rejected

Appellant’s claims and affirmed his judgment of sentence. Gray, supra. On

November 17, 2010, our Supreme Court denied Appellant’s petition for

allowance of appeal. Commonwealth v. Gray, 13 A.2d 475 (Pa. 2010).

Appellant filed a pro se PCRA petition on February 2, 2011. The PCRA

court appointed counsel, and PCRA counsel subsequently filed an amended

petition raising three claims of ineffective assistance. Specifically, Appellant

alleged that trial counsel was ineffective for: 1) advising Appellant to waive

his right to a jury trial; 2) failing to call an expert witness; and 3) failing to

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investigate witnesses and/or call Marlon Savage as a defense witness. On

July 19, 2013, the Commonwealth filed a motion to dismiss. In response,

PCRA counsel filed a supplemental affidavit.

The PCRA court concluded that only Appellant’s final ineffectiveness

claim necessitated an evidentiary hearing. Thus, Appellant claim that trial

counsel was ineffective for failing to call witnesses, including Mr. Savage,

was the subject of an evidentiary hearing held on October 28, 2013. At this

hearing, Appellant, his mother, and Mr. Savage testified on Appellant’s

behalf. Trial counsel testified for the Commonwealth. By order entered April

28, 2014, the PCRA court dismissed Appellant’s amended PCRA petition.

This timely appeal followed. Both Appellant and the PCRA court have

complied with Pa.R.A.P. 1925.

Appellant raises the following issues:

I. Whether the [PCRA court] was in error in denying
[Appellant’s] PCRA petition without a hearing on the issues
raised in the amended PCRA petition regarding trial
counsel’s ineffectiveness.

II. Whether the [PCRA court] was in error in not granting
relief on the PCRA petition alleging counsel was ineffective.

Appellant’s Brief at 8.

In reviewing the propriety of an order granting or denying PCRA relief,

an appellate court is limited to ascertaining whether the record supports the

determination of the PCRA court and whether the ruling is free of legal error.

Commonwealth v. Johnson, 966 A.2d 523, 532 (Pa. 2009). We pay great

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deference to the findings of the PCRA court, “but its legal determinations are

subject to our plenary review.” Id. Moreover, a PCRA court may decline to

hold a hearing on the petition if the PCRA court determines that 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). Finally, to be entitled to relief under the PCRA, the

petitioner must plead and prove by a preponderance of the evidence that the

conviction or sentence arose from one or more of the errors enumerated in

section 9543(a)(2) of the PCRA. One such error involves the ineffectiveness

of counsel.

To obtain relief under the PCRA premised on a claim that counsel was

ineffective, a petitioner must establish by a preponderance of the evidence

that counsel's ineffectiveness so undermined the truth-determining process

that no reliable adjudication of guilt or innocence could have taken place.

Johnson, 966 A.2d at 532. “Generally, counsel’s performance is presumed

to be constitutionally adequate, and counsel will only be deemed ineffective

upon a sufficient showing by the petitioner.” Id. This requires the petitioner

to demonstrate that: (1) the underlying claim is of arguable merit; (2)

counsel had no reasonable strategic basis for his or her action or inaction;

and (3) petitioner was prejudiced by counsel's act or omission. Id. at 533.

A finding of "prejudice" requires the petitioner to show "that there is a

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reasonable probability that, but for counsel’s unprofessional errors, the

result of the proceeding would have been different." Id.

Counsel will not be deemed ineffective if any reasonable basis exists

for counsel's actions. Commonwealth v. Douglas, 645 A.2d 226, 231 (Pa.

1994). Even if counsel had no reasonable basis for the course of conduct

pursued, however, an appellant is not entitled to relief if he fails to

demonstrate the requisite prejudice which is necessary under Pennsylvania's

ineffectiveness standard. Douglas, 645 A.2d at 232. In assessing a claim

of ineffectiveness, when it is clear that appellant has failed to meet the

prejudice prong, the court may dispose of the claim on that basis alone,

without a determination of whether the first two prongs have been met.

Commonwealth v. Travaglia, 661 A.2d 352, 357 (Pa. 1995). Counsel

cannot be deemed ineffective for failing to pursue a meritless claim.

Commonwealth v. Loner, 836 A.2d 125, 132 (Pa. Super. 2003).

As noted above, the PCRA court dismissed Appellant’s claims that trial

counsel was ineffective for advising him to waive his right to a jury trial and

for failing to call an expert witness without first holding an evidentiary

hearing. We will review each claim separately.

Appellant first claims that trial counsel was ineffective for advising him

to waive his right to a jury trial. According to Appellant, “[a]lthough the

[trial court] colloquied him on giving up this right, . . . his [trial] counsel

gave him improper and bad advice and convinced him to have a waiver trial.

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In a case such as this, where credibility was at issue, [Appellant] would have

been better served in having a jury trial.” Appellant’s Brief at 17.

This Court has recently reiterated:

When a presumptively-valid waiver is collaterally attacked
under the guise of ineffective assistance of counsel, it must
be analyzed like any other ineffectiveness claim. Such an
inquiry is not resolved by the mere absence of an oral
waiver colloquy; instead, the analysis must focus on the
totality of relevant circumstances. Those circumstances
include the defendant’s knowledge of an experience with
jury trials, his explicit written waiver (if any), and the
content of relevant off-the-record discussions counsel had
with his client.

Commonwealth v. Michaud, 70 A.3d 862, 871 (Pa. Super. 2013)

(citations omitted).

The PCRA court explained its reasons for rejecting Appellant’s

ineffectiveness claim as follows:

This claim has no merit and is belied by the record.

Prior to [Appellant’s] bench trial, this court conducted
an on-the-record colloquy to ascertain whether
[Appellant’s] decision to waive his right to a jury trial was
made knowingly, intelligently and voluntarily. In response
to this court’s questions, [Appellant] stated that he had
fully discussed his case with counsel, that he was satisfied
with counsel’s representation and that he understood all of
his trial rights. [Appellant] also stated that he understood
the maximum possible sentence he faced. The court
further reviewed with [Appellant] the major difference
between jury and waiver trials, and [Appellant] stated that
he understood those differences. Finally, [Appellant]
stated that his decision to [forgo] a jury trial was his own,
and that no one had threatened him or coerced him into
making that decision. It is well settled that a defendant is
bound by the statements which he makes during a
colloquy. See Commonwealth v. Barnes, 687 A.2d

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1163 (Pa. Super. 1996), appeal denied 548 Pa. 613, 693
A.2d 585 (1997).

Based upon [Appellant’s] answers, this court found that
his decision to waive his right to a jury trial was knowingly,
voluntarily and intelligently made. [Appellant] cannot now
claim otherwise. Trial counsel was not ineffective for
advising [Appellant] to waive his right to a jury trial.

PCRA Court Opinion, 7/16/14, at 9.

Our review of the trial court’s colloquy with Appellant regarding the

waiver of his right to a jury trial supports the PCRA court’s conclusions. See

N.T., 8/5/98, at 3-8. Thus, the PCRA court did not error in dismissing this

claim of ineffectiveness without a hearing.

Appellant next claims that trial counsel was ineffective for failing to

“secure an expert to testify that the incident could not have occurred in the

way [Kimbrough] described it.” Appellant’s Brief at 16. According to

Appellant, “[h]ad trial counsel hired an expert, the expert would have been

able to substantiate [his] claim of self defense.” Id.

In order to establish that trial counsel was ineffective for failing to

investigate and/or call a witness at trial, a PCRA petitioner must

demonstrate that:

(1) the witness existed; (2) the witness was available; (3)
trial counsel was informed of the existence of the witness or
should have known of the witness’s existence; (4) the
witness was prepared to cooperate and would have testified
on appellant’s behalf; and (5) the absence of the testimony
prejudiced appellant.

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Commonwealth v. Hall, 867 A.2d 619, 629 (Pa. Super. 2005) (citation

omitted).

The PCRA court explained its reasons for rejecting this ineffectiveness

claim as follows:

[Appellant] claims that trial counsel was ineffective for
failing to secure expert witnesses to bolster his self-
defense claim. When a defendant claims that expert
testimony should have been introduced at trial, the
defendant must articulate what evidence was available and
identify the witness who was willing to offer such evidence.
Commonwealth v. Whitney, 550 Pa. 618, 708 A.2d 471,
477 (1998); Commonwealth v. Williams, 537 Pa. 1, 640
A.2d 1251, 1265 (Pa. 1994). [Appellant] failed to provide
this Court with the names of any proposed expert
witnesses or an offer of proof as to what an expert witness
would have stated at trial. As a result, [Appellant’s] claim
fails.

PCRA Court Opinion, 7/16/14, at 9-10.

Once again, our review of the record supports the PCRA court’s

conclusion. Claims of trial counsel’s ineffectiveness are not self-proving and

therefore cannot be raised in a vacuum. See generally, Commonwealth

v. Pettus, 424 A.2d 1332 (Pa. 1981). Here, the PCRA court correctly

concluded that Appellant failed to establish any of the Hall factors. Thus,

the PCRA properly dismissed Appellant’s speculative claim without first

holding an evidentiary hearing.

As noted above, the PCRA court did hold an evidentiary hearing

regarding Appellant’s claim regarding trial counsel’s failure to investigate

and/or call witnesses in his defense at the waiver trial. Because Appellant

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only identified Mr. Savage as a potential defense witness, Appellant’s claim

regarding any other potential witnesses fails. See Pettus, supra; Hall,

supra. Nevertheless, the PCRA court explained:

[At the PCRA hearing, this] court had ample opportunity
to consider the demeanor of each witness and assess the
credibility of their testimony.

The court found [trial counsel’s] testimony on this issue
credible. [He] testified about his experience as a criminal
defense attorney. [Trial counsel] testified that it is his
general practice to investigate, interview and present
potential witnesses if they possess information helpful to
the defense. Although he did not recall any specific
conversations with [Appellant] about potential defense
witnesses, [trial counsel] was certain that he did not call
any defense witnesses either because [Appellant] did not
provide him with the names of witnesses or, if the names
were provided, the proposed testimony of those witnesses
would not have supported [Appellant’s] self-defense claim.

The court, as it did at trial, found [Appellant’s]
testimony completely self-serving and unworthy of belief.
[Appellant’s] version of events was contradicted by
[Kimbrough] and [a] police officer at trial. At the
evidentiary hearing, [Appellant] reiterated that same
version of events. He claimed that he acted in self-
defense, that he was gravely wounded and that he was “in
and out of consciousness” when the police arrived. These
claims were not believable. Nor was his claim that he had
provided defense counsel with the names of eyewitnesses
who would have supported his self-defense claim.

***

Finally, the court found the testimony of [Appellant’s]
mother neither persuasive nor credible. Although [she]
testified that her son had mentioned names of several
witnesses to [trial counsel] sometime after [Appellant’s]
arrest, she did not provide the court with any details about
those alleged conversations. Trial counsel had no
recollection of any such conversation. This conflict in
testimony, [Appellant’s mother’s] failure to come forward

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earlier with this “information” and her understandable but
obvious bias make her an unreliable witness.

PCRA Court Opinion, 7/16/14, at 10-12.

This Court “must defer to the credibility determinations made by the

[PCRA] court that observed a witness’s demeanor first hand.”

Commonwealth v Todd, 820 A.2d 707, 712 (Pa. Super. 2003). Given this

deference, our review of the record supports the PCRA court’s conclusions.

As a matter of credibility, the PCRA court believed trial counsel’s version of

the contested facts. We cannot disturb this determination. See

Commonwealth v. Harmon, 738 A.2d 1023, 1025 (Pa. Super. 1999)

(explaining that when a PCRA court’s determination of credibility is

supported by the record, it cannot be disturbed on appeal).

The PCRA court also found Mr. Savage’s testimony unworthy of belief,

and explained:

With regard to Mr. Savage, the court found his
testimony incredible and inconsistent with the evidence
presented at both [Appellant’s] trial and/or evidentiary
hearing. Savage testified at the PCRA hearing that he saw
[Kimbrough] and [Appellant] in a heated argument, after
which [Kimbrough] stabbed [Appellant]. [Appellant], on
the other hand, testified at trial that there was no
argument, and that the stabbing was unprovoked. Savage
assisted [Appellant] to his car, and then went back to his
vending stand. He made it very clear that he lost sight of
[Appellant] for several minutes as he tended to customers.
When he next saw [Appellant], [Appellant] was lying on a
sewer grate. [Kimbrough] was standing over [Appellant]
and cut him with the sickle. Savage did not know how the
sickle was introduced into the altercation. We know from
[Appellant’s] trial testimony that the sickle belonged to
him. Savage didn’t see [Appellant] on top of

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[Kimbrough’s] car, trying to break his windshield. Yet
[Appellant] admitted that he attacked [Kimbrough’s] car
after he was injured. To the extent that Savage’s
testimony would have supported [Appellant’s] self-defense
claim, its inherent conflict with other credible evidence and
its conflict with some of [Appellant’s] own testimony,
would have prevented it from affecting the verdict.

PCRA Court Opinion, 7/16/14, at 11-12. Because the PCRA court’s

credibility determinations regarding Mr. Savage are supported by our review

of his PCRA hearing testimony, this ineffectiveness claim also fails. Harmon,

supra.

In sum, our review of the record supports the trial court’s conclusions

that all of Appellant’s ineffectiveness claims are meritless. We therefore

affirm the PCRA court’s order denying Appellant post-conviction relief.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 3/18/2015

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