J-S68040-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
ANDRE HENRY
Appellant No. 73 EDA 2015
Appeal from the PCRA Order December 2, 2014
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0012688-2007
BEFORE: BENDER, P.J.E., DONOHUE, J., and MUNDY, J.
MEMORANDUM BY MUNDY, J.: FILED DECEMBER 08, 2015
Appellant, Andre Henry, appeals from the December 2, 2014 order
dismissing, without a hearing, his 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 has summarized the relevant facts and procedural
history as follows.
On October 31, 2005, while in custody on an
unrelated matter, [Appellant] was arrested and
charged with two counts of first degree murder in
connection with a [sic] drug related shooting deaths
of Sean Young and Jamallian Malloy in 1996.
On August 3, 2009, [Appellant] filed pre-trial
motions, including a [m]otion to [s]uppress, before
the Honorable Carolyn Engel Temin. Judge Temin
held the matters under advisement pending the
testimony presented at trial. Judge Temin ultimately
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denied [Appellant]’s motions and, on August 6,
2009, found [Appellant] guilty of two counts of first
degree murder.
[Appellant] appealed, claiming the trial court
erred in denying his motion to suppress recorded
conversations he had with another inmate as well as
statements he later made to police. On February 8,
2011, the Superior Court affirmed [Appellant]’s
judgment of sentence. [Commonwealth v. Henry,
24 A.3d 447 (Pa. Super. 2011), appeal denied 26
A.3d 482 (Pa. 2011).] The Superior Court
specifically rejected [Appellant]’s claim with regard
to the recorded conversations with the other inmate
and deemed the other suppression claim waived
because appellate counsel failed to cite relevant
portions of the trial transcript. On August 2, 2011,
the Pennsylvania Supreme Court denied allocator.
On June 8, 2012, [Appellant] filed a pro se
PCRA petition. The court appointed counsel to
represent [Appellant]. PCRA counsel thereafter filed
an amended PCRA petition on his client’s behalf,
alleging ineffective assistance of trial counsel.1 The
Commonwealth filed a [m]otion to [d]ismiss.
1
In his amended petition, PCRA counsel noted
discrepancies in the transcripts from [Appellant]’s
trial and [m]otion to [s]uppress. As a result, he
could not ascertain whether trial counsel actually
litigated a [m]otion to [s]uppress. Trial counsel did,
in fact, litigate a [m]otion to [s]uppress on the
record, which the trial court denied.
PCRA Court Opinion, 2/17/15, at 1-2 (footnote in original, citations omitted).
On October 28, 2014, the PCRA court notified Appellant pursuant to
Pennsylvania Rule of Criminal Procedure 907 of its intent to dismiss
Appellant’s petition without a hearing on the basis that Appellant’s petition
had no merit. Appellant did not file a response, and on December 2, 2014,
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the PCRA court dismissed Appellant’s PCRA petition. On December 29,
2014, Appellant filed a timely appeal.1
On appeal, Appellant raises the following issue for our review.
I. Did the Honorable PCRA Court err when it
dismissed [Appellant]’s Amended PCRA Petition
without granting a [h]earing even though the
Amended Petition properly pled and where
[Appellant] would have been able to prove that he
was entitled to relief?
Appellant’s Brief at 3.
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.
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
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1
Appellant and the PCRA court have complied with Pennsylvania Rule of
Appellate Procedure 1925.
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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),
cert. denied, Roney v. Pennsylvania, 135 S. Ct 56 (2014).. “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
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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. 2014) (parallel citation omitted). 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. (citation omitted). 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 rendered effective assistance.
Commonwealth v. Rivera, 108 A.3d 779, 789 (Pa. 2014). “[I]f a claim
fails under any required element of the Strickland test, the court may
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dismiss the claim on that basis.” Commonwealth v. Bomar, 104 A.3d
1179, 1188 (Pa. 2014), cert. denied, Bomar v. Pennsylvania, 136 S. Ct.
49 (2015). “Additionally, counsel cannot be deemed ineffective for failure to
raise a meritless claim.” Rivera, supra. (citation omitted).
Appellant’s claim is that appellate counsel was ineffective for failing to
cite to specific portions of the record when advancing Appellant’s direct
appeal claim that the trial court erred in failing to grant his motion to
suppress his statements given to police. Appellant’s Brief at 10-11.
Appellant also argues that trial counsel was ineffective because he “did not
actually pursue the [m]otion when it should have been pursued or pursued
the [m]otion in a haphazard fashion that is not clearly reflected by the
record[.]” Id. at 11.
In reviewing Appellant’s claim we note that our Supreme Court has
previously held that, “in cases where appellate counsel is alleged to be
ineffective for failing to raise a claim of trial counsel’s ineffectiveness … the
inability of the petitioner to prove each prong of the Pierce test in respect to
trial counsel’s purported ineffectiveness alone will be fatal to his layered
ineffectiveness claim.” Commonwealth v. Mallory, 941 A.2d 686, 699
n.15 (Pa. 2008) (citation omitted), cert. denied, Pennsylvania v. Mallory,
555 U.S. 884 (2008).
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Instantly, a review of the record belies Appellant’s assertion that trial
counsel failed to pursue Appellant’s motion to suppress. Specifically, after
the Commonwealth rested at trial, the following occurred.
The Court: … I will decide the motion now. Does
anybody wish to make argument on the motion?
The motion was to suppress the taped
conversations as well as the formal statements made
by [Appellant].
I believe that’s all that was included in your
motion?
[Defense Counsel]: … My client would like to
testify before you do the motion.
The Court: On the motion?
[Defense Counsel]: With respect to the motion
itself.
The Court: Very well. I’ll permit that. He can testify
from where he’s sitting. It’s not a problem.
N.T., 8/5/09, at 91-92.
The transcript continues for 20 pages, wherein the trial court heard
argument on Appellant’s motion to suppress, before ultimately denying said
motion and allowing the statements into evidence. Id. at 111. Accordingly,
trial counsel was not ineffective for failing to litigate Appellant’s motion to
suppress, as such claim is meritless. Mallory, supra. Furthermore, to the
extent Appellant attempts to argue appellate counsel was ineffective for
failing to raise this claim on direct appeal, this claim is also belied by the
record. Appellant solely argued in his direct appeal that the trial court erred
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in failing to grant Appellant’s motion to suppress.2 Henry, supra
(unpublished memorandum).
Upon review, we agree with the PCRA court’s conclusion that
Appellant’s ineffective assistance of counsel claim for failing to adequately
pursue his motion to suppress is meritless, and thus fails under the
Strickland test. Bomar, supra. Therefore, 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 December 2, 2014 order is
affirmed.
Order affirmed.
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2
Additionally, we note that the PCRA court opinion comprehensively
discusses the basis for denying Appellant’s motion to suppress after hearing
testimony from Appellant himself in regards to said motion. PCRA Court
Opinion, 2/17/15, at 4-5. Accordingly, any claim by Appellant that appellate
counsel was ineffective for failing to cite to specific portions of the record in
support of Appellant’s direct appeal claim would warrant no relief as
Appellant’s claim that the trial court erred in denying his motion to suppress
is meritless. Bomar, surpa.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/8/2015
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