J-S42019-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
PEDRO SILVA
Appellant No. 2649 EDA 2014
Appeal from the PCRA Order September 2, 2014
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0006668-2007
BEFORE: SHOGAN, J., MUNDY, J., and FITZGERALD, J.*
MEMORANDUM BY MUNDY, J.: FILED NOVEMBER 20, 2015
Appellant, Pedro Silva, appeals from the September 2, 2014 order
dismissing his first petition for relief filed pursuant to the Post Conviction
Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. After careful review, we
affirm.
The PCRA court outlined the relevant procedural history of this case as
follows.
On November 2, 2007, [Appellant] was
convicted after a jury trial of possession with intent
to distribute a controlled substance (PWID) and
unauthorized use of a motor vehicle.1 On December
11, 2007, the [trial court] sentenced [Appellant] to a
term of incarceration of two to five years with a
____________________________________________
*
Former Justice specially assigned to the Superior Court.
J-S42019-15
consecutive term of probation of five years for PWID.
No further penalty was imposed on the remaining
charge.
…
Post-sentence motions were denied, and
[Appellant] filed a timely notice of appeal. The
Superior Court affirmed the judgment of sentence in
a memorandum decision on March 4, 2009.
[Commonwealth v. Silva, 927 A.2d 562 (Pa.
Super. 2009) (unpublished memorandum), appeal
denied, 982 A.2d 1228 (Pa. 2008)]. [Appellant] filed
a timely petition for allowance of appeal with the
Supreme Court of Pennsylvania. Allocatur was
denied on October 27, 2009 …. On July 1, 2010,
[Appellant] filed a pro se PCRA petition. Counsel
was appointed on July 20, 2012, and filed an
amended petition on January 27, 2014. The
Commonwealth filed [its] motion to dismiss on April
24, 2014.
… [Appellant] was given notice on July 11,
2014, of [the PCRA] court’s intention to dismiss the
petition pursuant to P[ennsylvania] R[ule of]
Crim[inal] P[rocedure] 907.
1
35 P.S. § 780-113(a)(30) and 18 Pa.C.S.A. § 3928,
respectively.
PCRA Court Opinion, 10/24/14, at 1-2. On August 29, 2014, the PCRA court
convened for a PCRA hearing. Counsel for the Commonwealth indicated that
PCRA counsel was aware Rule 907 notice had been sent, but that PCRA
counsel had been unable to locate Appellant. N.T., 8/29/14, at 3.
Accordingly, the PCRA court noted that “[t]he defendant is unlocatable by
defense counsel and his last address is not good. PCRA dismissed.” Id. at
4. On September 2, 2014, the PCRA court entered an order denying
-2-
J-S42019-15
Appellant’s PCRA petition. On September 18, 2014, Appellant filed a timely
notice of appeal.1
On appeal, Appellant raises the following issues for our consideration.
[I.] Whether the [PCRA court] was in error in
denying [] Appellant’s PCRA petition without an
evidentiary 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
When reviewing PCRA matters, we are mindful of the following
principles.
We consider the record in the light most favorable to
the prevailing party at the PCRA level. This review is
limited to the evidence of record and the factual
findings of the PCRA court. We afford great
deference to the factual findings of the PCRA court
and will not disturb those findings unless they have
no support in the record. Accordingly, as long as a
PCRA court’s ruling is free of legal error and is
supported by record evidence, we will not disturb its
ruling. Nonetheless, where the issue pertains to a
question of law, our standard of review is de novo
and our scope of review is plenary.
____________________________________________
1
The PCRA court did not order Appellant to file a concise statement of
matters complained of on appeal pursuant to Pennsylvania Rule of Appellate
Procedure 1925(b), but the PCRA court filed a Rule 1925(a) opinion on
October 24, 2014.
-3-
J-S42019-15
Commonwealth v. Pander, 100 A.3d 626, 630 (Pa. Super. 2014) (en
banc) (internal quotation marks and citation omitted), appeal denied, 109
A.3d 679 (Pa. 2015). Further, in order to be eligible for PCRA relief, a
petitioner must plead and prove by a preponderance of the evidence that his
conviction or sentence arose from one or more of the errors listed at
Section 9543(a)(2) of the PCRA. 42 Pa.C.S.A. § 9543(a)(2). One such
error, which provides a potential avenue for relief, is ineffective assistance of
counsel. Id. § 9543(a)(2)(ii). The issues raised must be neither previously
litigated nor waived. Id. § 9543(a)(3).
Additionally, with regard to evidentiary hearings at the post-conviction
stage of proceedings, we observe the following.
[T]he right to an evidentiary hearing on a post-
conviction petition is not absolute. It is within the
PCRA court’s discretion to decline to hold a hearing if
the petitioner’s claim is patently frivolous and has no
support either in the record or other evidence. It is
the responsibility of the reviewing court on appeal to
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 issues of material
fact in controversy and in denying relief without
conducting an evidentiary hearing.
Commonwealth v. Miller, 102 A.3d 988, 992 (Pa. Super. 2014) (citation
omitted). “We stress that an evidentiary hearing is not meant to function as
a fishing expedition for any possible evidence that may support some
speculative claim of ineffectiveness.” Commonwealth v. Roney, 79 A.3d
595, 604-605 (Pa. 2013) (internal quotation marks and citation omitted).
-4-
J-S42019-15
“The controlling factor … is the status of the substantive assertions in the
petition. Thus, as to ineffectiveness claims in particular, if the record
reflects that the underlying issue is of no arguable merit or no prejudice
resulted, no evidentiary hearing is required.” Commonwealth v.
Baumhammers, 92 A.3d 708, 726-727 (Pa. 2014). This Court reviews the
decision to dismiss a PCRA petition without conducting an evidentiary
hearing for an abuse of discretion. Miller, supra. Thus, we must first
examine Appellant’s claim of ineffectiveness, for if we determine that
Appellant’s claim is without arguable merit or Appellant has not established
prejudice as a result of counsel’s action or inaction, the PCRA court was not
required to hold an evidentiary hearing. See Baumhammers, supra.
“In order to obtain relief on a claim of ineffectiveness, a PCRA
petitioner must satisfy the performance and prejudice test set forth in
Strickland v. Washington, 466 U.S. 668 (1984).” Commonwealth v.
Reid, 99 A.3d 427, 436 (Pa. Super. 2014). In Pennsylvania, adherence to
the Strickland test requires a PCRA petitioner to establish three prongs.
Id. Specifically, the petitioner must demonstrate “(1) the underlying claim
has arguable merit; (2) no reasonable basis existed for counsel’s actions or
failure to act; and (3) the petitioner suffered prejudice as a result of
counsel’s error[.]” Id. With regard to the third prong, “prejudice [is]
measured by whether there is a reasonable probability that the result of the
proceeding would be different.” Id. Moreover, we presume counsel has
-5-
J-S42019-15
rendered effective assistance. Commonwealth v. Rivera, 108 A.3d 779,
789 (Pa. Super. 2014). “[I]f a claim fails under any required element of the
Strickland test, the court may dismiss the claim on that basis.”
Commonwealth v. Bomar, 104 A.3d 1179, 1188 (Pa. 2014), cert. denied,
--- U.S. ---, 2015 WL 2128333 (2015). “Additionally, counsel cannot be
deemed ineffective for failure to raise a meritless claim.” Rivera, supra.
(citation omitted).
Appellant’s specific claim is that appellate counsel was ineffective for
failing to argue on appeal that the verdict was against the weight of the
evidence. Appellant’s Brief at 17. In support of this claim, Appellant argues
“[t]he Commonwealth’s evidence in this case was contradictory and
inconsistent throughout trial.” Id. He further contends, “the prosecution’s
case was built on mere speculation and pure conjecture. Conflicting
evidence was given throughout the trial.” Id. at 18.
It is well established that it is for the factfinder to determine the
weight given to the evidence produced at trial. Commonwealth v.
Ferguson, 107 A.3d 206, 212 (Pa. Super. 2015) (citation omitted).
Because it is the role of the factfinder to weigh the evidence, an appellant
seeking to challenge the weight of the evidence carries a heavy burden.
If the factfinder returns a guilty verdict, and if a
criminal defendant then files a motion for a new trial
on the basis that the verdict was against the weight
of the evidence, a trial court is not to grant relief
unless the verdict is so contrary to the evidence as
to shock one’s sense of justice.
-6-
J-S42019-15
Id. “A new trial is not warranted because of a mere conflict in the testimony
and must have a stronger foundation than a reassessment of the credibility
of witnesses.” Commonwealth v. Gonzalez, 109 A.3d 711, 723 (Pa.
Super. 2015). “[O]nly where the facts and inferences disclose a palpable
abuse of discretion will the denial of a motion for a new trial based on the
weight of the evidence be upset on appeal.” Commonwealth v. Morales,
91 A.3d 80, 91 (Pa. 2014) (emphasis in original; citation omitted), cert.
denied, 135 S. Ct. 1548 (2015).
Instantly, the PCRA court explained its determination that this claim
did not establish a right to relief as follows.
In the instant [case], the evidence presented at trial
overwhelmingly supported the verdict, thus
[Appellant’s] claim is meritless. Moreover, because
it is a meritless claim, [Appellant] was not prejudiced
by Counsel’s failure to raise it.
…
Officer Ditizio testified that he pulled over
[Appellant] for running a stop sign. He discovered
that [Appellant] was driving with a suspended license
in a vehicle that didn’t belong to him, and whose
owner he could not name. Officer Ditizio issued
citations based on the preceding infractions, which
[Appellant] placed in a billfold. As [Appellant]
walked away, Officer Ditizio witnessed him throw the
billfold into a nearby trashcan. The billfold was later
recovered from the trashcan containing the issued
citations as well as [Appellant]’s identification and
185 pills of Ecstacy. In addition to Officer Ditizio’s
testimony, Detective John Ryan, a narcotics expert
testified that such a quantity of pills was consistent
with possession with intent to distribute, rather than
-7-
J-S42019-15
personal use. Also, the owner of the vehicle that
[Appellant] was driving testified that [Appellant] did
not have permission to drive the car.
In light of the evidence adduced at trial, the
verdict did not “shock one’s sense of justice.”
Consequently, appellate counsel cannot be deemed
ineffective for failing to raise a meritless weight-of-
the-evidence claim.
PCRA Court Opinion, 10/24/14, at 6-8.
Upon review, we agree with the PCRA court’s conclusion that
Appellant’s weight of the evidence claim is meritless. The fact-finder was
free to assess the evidence presented and absent a palpable abuse of
discretion by the trial court we will not disturb this finding on appeal. See,
Morales. Therefore, because the underlying weight of the evidence claim
lacked arguable merit, the PCRA court was not required to hold an
evidentiary hearing. See Baumhammers, supra; Reid, supra.
Based on the foregoing, we conclude the PCRA court correctly
dismissed Appellant’s PCRA petition without an evidentiary hearing. See
Pander, supra. Accordingly, the PCRA court’s September 2, 2014 order is
affirmed.
Order affirmed.
-8-
J-S42019-15
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/20/2015
-9-