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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
KEENAN BONDS, :
:
Appellant : No. 2388 EDA 2017
Appeal from the PCRA Order June 30, 2017
in the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0014071-2011
BEFORE: OTT, J., STABILE, J., and MUSMANNO, J.
MEMORANDUM BY MUSMANNO, J.: FILED MAY 29, 2018
Keenan Bonds (“Bonds”) appeals from the Order dismissing his first
Petition for relief filed pursuant to the Post Conviction Relief Act. See 42
Pa.C.S.A. §§ 9541-9546. We affirm.
In its Opinion, the PCRA court set forth the relevant facts as follows:
On July 16, 2011, at approximately 8:20 [p.m.],
[Philadelphia] Police Officer Angel Ortiz [(“Officer Ortiz”)] and []
Officer Milor Celce [(“Officer Celce”)] were on duty in a marked
patrol car driving northbound in the area of 2200 North Broad
Street in Philadelphia. The officers noticed [Bonds] and another
man (later identified as Eugene Colts (“Colts”)) standing outside
a variety store. [Bonds] was urinating on the store’s outer wall.
Officer Celce pulled into a driveway adjacent to the store. As he
was pulling over, he observed a large bulge shaped like a firearm
in [Bonds’s] right pants pocket. He told his partner what he had
seen.
While Officer Celce approached Colts, Officer Ortiz
approached [Bonds] and told him not to reach for his pockets.
[Bonds] ignored the command, continued to reach for his pockets,
and began to walk away. Only after Officer Ortiz put his hands on
[Bonds] and directed him to put his hands on the wall did [Bonds]
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comply. Concerned with the gun-shaped bulge in [Bonds’s]
pocket, Officer Ortiz began to pat down [Bonds’s] waistband area.
[Bonds] again attempted to get away during the frisk. With Officer
Celce’s help, Officer Ortiz was able to handcuff [Bonds]. [Officer
Ortiz] recovered a loaded .38 revolver from [Bonds’s] right
pocket. [Bonds] did not have a license for the firearm and was
ineligible to carry a firearm.
PCRA Court Opinion, 9/6/17, at 1-2.
Following a bench trial, Bonds was convicted of persons not to possess
firearms, firearms not to be carried without a license, and carrying firearms
on public streets or public property in Philadelphia,1 as well as a violation of
the Philadelphia ordinance prohibiting public urination.2 The trial court
deferred sentencing and ordered a pre-sentence investigation report. The trial
court subsequently sentenced Bonds to an aggregate term of 5 to 10 years in
prison.
On February 5, 2013, Bonds filed a Motion for Reconsideration of
Sentence. Following a hearing, the trial court granted Bonds’s Motion, and
re-sentenced him to an aggregate term of 4 to 10 years in prison. This Court
affirmed Bonds’s judgment of sentence on July 17, 2014. See
Commonwealth v. Bonds, 105 A.3d 794 (Pa. Super. 2014) (unpublished
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1 18 Pa.C.S.A. §§ 6105, 6106, 6108.
2 City of Philadelphia Ordinance § 10-609(2).
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memorandum).3
Bonds, pro se, filed the instant timely Petition on October 14, 2014. The
PCRA court appointed Bonds counsel, who filed an Amended PCRA Petition on
his behalf. On May 17, 2017, the PCRA court issued Notice of its intention to
dismiss Bonds’s Petition without a hearing pursuant to Pa.R.Crim.P. 907. The
PCRA court dismissed Bonds’s Petition on June 30, 2017. Bonds filed a timely
Notice of Appeal and a court-ordered Pa.R.A.P. 1925(b) Concise Statement of
matters complained of on appeal.
On appeal, Bonds raises the following questions for our review:
I. Whether the [PCRA] court erred in denying [Bonds’s] PCRA
[P]etition without an evidentiary hearing on the issues raised in
the [A]mended PCRA [P]etition regarding [trial] counsel and/or
appellate counsel’s ineffectiveness[?]
II. Whether the [PCRA] court erred in not granting relief on the
PCRA [P]etition alleging trial counsel and/or appellate counsel was
ineffective[?]
Brief for Appellant at 8 (some capitalization omitted).
Our standard of review of a PCRA court’s [dismissal] of a
petition for post[-]conviction relief is well-settled: We must
examine whether the record supports the PCRA court’s
determination, and whether the PCRA court’s determination is free
of legal error. The PCRA court’s findings will not be disturbed
unless there is no support for the findings in the certified record.
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3 Relevantly, on appeal, Bonds challenged the weight of the evidence
supporting his convictions, and the discretionary aspects of his sentence. This
Court concluded that both of Bonds’s claims were waived, as he had failed to
challenge the weight of the evidence before the trial court, and had failed to
include a Pa.R.A.P. 2119(f) Statement in his brief, respectively. See Bonds,
105 A.3d 794 (unpublished memorandum at 3-4).
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Commonwealth v. Franklin, 990 A.2d 795, 797 (Pa. Super. 2010) (citation
omitted).
We will address Bonds’s claims together. In his first claim, Bonds argues
that the PCRA court erred in dismissing his Petition without a hearing because
he raised colorable claims regarding the ineffectiveness of his prior counsel.
Brief for Appellant at 14-16. In his second claim, Bonds challenges the
effectiveness of his trial and appellate counsel. Id. at 16-20.
The PCRA permits relief when a conviction is the result of “[i]neffective
assistance of counsel which, in the circumstances of the particular case, so
undermined the truth-determining process that no reliable adjudication of
guilt or innocence could have taken place.” 42 Pa.C.S.A. § 9543(a)(2)(ii).
It is well-settled that counsel is presumed to have provided
effective representation unless the PCRA petitioner pleads and
proves all of the following: (1) the underlying legal claim is of
arguable merit; (2) counsel’s action or inaction lacked any
objectively reasonable basis designed to effectuate his client’s
interest; and (3) prejudice, to the effect that there was a
reasonable probability of a different outcome if not for counsel’s
error.
Franklin, 990 A.2d at 797 (citations omitted); see also Commonwealth v.
Charleston, 94 A.3d 1012, 1019 (Pa. Super. 2014) (stating that “[a]
defendant raising a claim of ineffective assistance of counsel is required to
show actual prejudice; this is, that counsel’s ineffectiveness was of such a
magnitude that it could have reasonably had an adverse effect on the outcome
of the proceedings.” (citations and some brackets omitted)). Additionally, “as
to ineffectiveness claims in particular, if the record reflects that the underlying
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issue of is no arguable merit or no prejudice resulted, no evidentiary hearing
is required.” Commonwealth v. Baumhammers, 92 A.3d 708, 726-27 (Pa.
2014).
Bonds identifies three arguments regarding the effectiveness of his prior
counsel, which we will address separately. In his first argument, Bonds claims
that trial counsel was ineffective for failing to preserve a challenge to the
weight of the evidence supporting his conviction in a post-sentence motion.
Brief for Appellant at 15. Bonds argues that “[t]he evidence in this matter is
entirely dependent on the testimony of the two police officer[]s involved in
the incident.” Id.; see also id. at 17. Bonds also asserts that Officer Ortiz’s
testimony at trial directly contradicted his own testimony. Id. at 15, 17.
Here, Bonds has failed to show that his underlying claim, a challenge to
the weight of the evidence, is of arguable merit. A successful challenge to the
weight of the evidence would have required Bonds to establish that the
evidence supporting his conviction was “so tenuous, vague and uncertain that
the verdict shocks the conscience of the court.” Commonwealth v. Smith,
146 A.3d 257, 265 (Pa. Super. 2016) (citation omitted). “One of the least
assailable reasons for granting or denying a new trial is the lower court’s
conviction that the verdict was or was not against the weight of the evidence
….” Commonwealth v. Clay, 64 A.3d 1049, 1055 (Pa. 2013).
The PCRA court addressed Bonds’s argument as follows:
[Bonds] claimed counsel should have argued that the
verdict was against the weight of the evidence because [Bonds’s]
testimony was more credible than Officer Ortiz’s. This is not a
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proper ground for granting relief. A fact-finder is free to believe
all, part, or none of the evidence and to determine the credibility
of the witnesses. To be entitled to a new trial, a defendant must
have a stronger foundation than a reassessment of the credibility
of witnesses. Instead, the trial court must determine whether,
notwithstanding all the facts, certain facts are so clearly of greater
weight that to ignore them or to give them equal weight with all
the facts is to deny justice. Although [Bonds] may have
considered his testimony “more believable” than the officers’
testimony, the court did not. Trial counsel cannot be found
ineffective for having failed to make such a baseless argument.
PCRA Court Opinion, 9/6/17, at 4-5 (citations and some quotation marks
omitted); see also Franklin, 990 A.2d at 800 (stating that “counsel cannot
be deemed ineffective for [] failing to raise a claim without merit”). Upon
review, we agree with the trial court’s determination that Bonds’s underlying
claim lacks arguable merit. Additionally, Bonds has not argued or established
that there is a reasonable probability that the outcome of the proceedings
would have been different if counsel had filed a post-sentence motion. See
Franklin, 990 A.2d at 797; see also Charleston, supra. Therefore, we
cannot conclude that trial counsel was ineffective for failing to preserve a
challenge to the weight of the evidence.
In his second argument, Bonds contends that trial counsel was
ineffective for failing to file a motion to suppress evidence seized at the time
of his arrest. Brief for Appellant at 17; see also id. at 15. Bonds argues that
the police officers “lacked reasonable suspicion to stop and frisk [Bonds]
because the original confrontation was for public urination (a violation of city
ordinance).” Id. at 17.
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Here, in his one-paragraph discussion of his second argument, Bonds
failed to cite to any relevant case law in support of his claims. See Pa.R.A.P.
2119(a) (requiring that each point in an argument contain “such discussion
and citation of authorities as are deemed pertinent.”); see also
Commonwealth v. Johnson, 985 A.2d 915, 924 (Pa. 2009) (stating that
“where an appellate brief fails to provide any discussion of a claim with citation
to relevant authority or fails to develop the issue in any other meaningful
fashion capable of review, that claim is waived.”). Accordingly, Bonds’s
second argument is waived.4
In his third argument, Bonds claims that his direct appeal counsel was
ineffective for failing to file a Pa.R.A.P. 2119(f) Statement in his appellate
brief, thereby waiving his discretionary aspects of sentencing claim. Brief for
Appellant at 15, 18-19. Bonds asserts that he raised a “colorable claim” that
he received an excessive sentence, and counsel’s failure to comply with Rule
2119(f) denied Bonds the opportunity to challenge the discretionary aspects
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4 Even if Bonds had properly developed this argument, we would conclude that
it is without merit, for the reasons set forth by the PCRA court in its Opinion.
See PCRA Court Opinion, 9/6/17, at 5-6.
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of his sentence on appeal. Id. at 19-20.5
Here, beyond a bald assertion that his sentence was “unreasonable and
excessive,” Bonds has failed to explain why he believes the trial court abused
its discretion in imposing its sentence. See Commonwealth v. Robinson,
931 A.2d 15, 26 (Pa. Super. 2007) (stating that “a sentence will not be
disturbed on appeal absent a manifest abuse of discretion.”); see also
Commonwealth v. Zeigler, 112 A.3d 656, 662 (Pa. Super. 2015) (stating
that “a bald excessiveness claim does not raise a substantial question.”).
Additionally, the PCRA court addressed Bonds’s third argument as
follows:
[T]he court acted well within its discretion when it sentenced
[Bonds] within the guidelines to a mitigated term of incarceration
on each of the three firearms charges and ordered that all terms
of incarceration run concurrent to one another. The court imposed
no further penalty as to [Bonds’s] public urination. The court also
accounted for [Bonds’s] rehabilitative needs and any mitigating
circumstances set forth in his presentence report. See
Commonwealth v. Fullin, 892 A.2d 843, 849-50 (Pa. Super.
2006) (“Where the sentencing judge had the benefit of a pre-
sentence report, it will be presumed that [she] was aware of
relevant information regarding appellant’s character and weighed
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5 We observe that Bonds did not present this argument in his pro se PCRA
Petition, his counseled Amended PCRA Petition, or his Concise Statement. See
Commonwealth v. Hansley, 24 A.3d 410, 415 (Pa. Super. 2011) (stating
that generally, “issues not raised in a Rule 1925(b) statement will be deemed
waived for review.”). Instead, the third argument identified in the Amended
PCRA Petition and Concise Statement simply states that “[a]ppellate counsel
was ineffective in representation[.]” Amended PCRA Petition, 8/30/16, at 3;
see also Concise Statement, 8/11/17, at 1. However, Bonds raised his third
argument in his Brief in Support of Amended PCRA Petition, and the PCRA
court considered the merits of his claim in its Opinion. Thus, we decline to
deem this argument waived.
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those considerations along with the statutory mitigating factors.”)
(internal quotation omitted). Finally, the court considered
[Bonds’s] familial support, the Commonwealth’s sentencing
memorandum, arguments by counsel, and [Bonds’s] allocution.
Therefore, even if counsel had included a Rule 2119(f) statement
in his appellate brief, [Bonds’s] underlying claim would have failed
to raise a substantial question and would have been unsuccessful
on appeal. The court did not abuse its discretion in dismissing
[Bonds’s] PCRA [P]etition where he did not demonstrate that he
was prejudiced by counsel’s failure to preserve the sentencing
claim.
PCRA Court Opinion, 9/6/17, at 7. We agree with the PCRA court’s
determination that Bonds has not established that he was prejudiced by his
direct appeal counsel’s failure to include a Rule 2119(f) statement in his brief.
Because the record reflects that Bonds’s arguments lack arguable merit,
and Bonds failed to establish that he suffered actual prejudice, we conclude
that the PCRA court did not err in dismissing Bonds’s Petition without a
hearing. See Baumhammers, supra. We therefore affirm the PCRA court’s
Order dismissing Bonds’s Petition.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/29/18
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