Com. v. Vincent, T.

J-S40023-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
TROY VINCENT :
:
Appellant : No. 2410 EDA 2017

Appeal from the PCRA Order June 8, 2017
in the Court of Common Pleas of Philadelphia County
Criminal Division at No.: CP-51-CR-0011466-2011

BEFORE: LAZARUS, J., DUBOW, J., and PLATT*, J.

MEMORANDUM BY PLATT, J.: FILED NOVEMBER 27, 2018

Appellant, Troy Vincent, appeals, pro se, from the order of June 8,

2017, which dismissed without a hearing his first petition brought under the

Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. Appellant

claims he received ineffective assistance of counsel. We affirm.

We take the underlying facts and procedural history in this matter

from our independent review of the certified record. On March 29, 2009,

Appellant shot and killed the victim, Lamont Watts, outside of the Pro

Lounge Bar in Philadelphia, Pennsylvania. (See Trial Court Opinion,

1/23/14, at 2). The testimony at trial demonstrated that the victim was

drinking in the bar and stated to an acquaintance that he was going to hit

Appellant, who was standing outside the bar, in retaliation for Appellant’s

alleged mistreatment of his ex-girlfriend, Angel Townsville. (See N.T. Trial,
____________________________________
* Retired Senior Judge assigned to the Superior Court.
J-S40023-18

12/17/12, at 97-100, 116, 119-120). The victim exited the bar and punched

Appellant, who then drew a gun and fired seven shots, three of which hit the

victim, killing him. (See id. at 20, 27, 33, 119-20). A video camera

recorded the entire incident. The Commonwealth presented the video at

trial. (See id. at 54-72). Appellant fled the jurisdiction immediately after

the incident and was ultimately apprehended on December 15, 2011 in San

Diego, California. (See id. at 80).

A non-jury trial took place on December 17-18, 2012. At trial, the

Commonwealth stated that both it and the defense wished to call Angel

Townsville as a witness because she was an eyewitness to the incident and

could explain the motive of the crime. However, Ms. Townsville was no

longer residing at her previous address and the Commonwealth was unable

to locate her. (See id. at 4-9). Following the close of the Commonwealth’s

case, an on-the-record colloquy took place in which Appellant formally

rejected a plea offered to him by the Commonwealth, stated that he did not

wish to testify at trial, and agreed with defense counsel’s strategy of not

calling any witness on his behalf. (See N.T. Trial, 12/18/12, at 91-99).

At the close of trial, the court found Appellant guilty of murder in the

third degree, and related weapons offenses.1 (See id. at 138).

____________________________________________

1 18 Pa. C.S.A. §§ 2502(c), 6106(a)(1), 6108, and 907(a), respectively.

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On May 29, 2013, the trial court sentenced Appellant to an aggregate

term of incarceration of not less than eighteen nor more than thirty-six

years. Appellant filed a timely appeal. On December 23, 2014, this Court

affirmed the judgment of sentence. (See Commonwealth v. Vincent, 116

A.3d 696 (Pa. Super. 2014)). The Pennsylvania Supreme Court denied leave

to appeal on April 28, 2015. (See Commonwealth v. Vincent, 114 A.3d

1040 (Pa. 2015)).

On April 20, 2016, Appellant, acting pro se, filed the instant, timely

PCRA petition. The PCRA court appointed counsel who subsequently filed a

motion to withdraw as counsel accompanied by a Turner/Finley letter2 on

February 19, 2017. On May 5, 2017, the PCRA court issued notice of its

intent to dismiss the petition pursuant to Pennsylvania Rule of Criminal

Procedure 907(1). Appellant did not file a response to the Rule 907 notice.

On June 8, 2017, the court denied Appellant’s PCRA petition and granted

PCRA counsel’s motion to withdraw. On July 6, 2017, Appellant filed a

timely notice of appeal.3 On August 4, 2017, the PCRA court directed

Appellant to file a concise statement of errors complained of on appeal. See

____________________________________________

2 See Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988);
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).

3“[T]he prisoner mailbox rule provides that a pro se prisoner’s document is
deemed filed on the date he delivers it to prison authorities for mailing.”
Commonwealth v. Chambers, 35 A.3d 34, 38 (Pa. Super. 2011), appeal
denied, 46 A.3d 715 (Pa. 2012) (citation omitted).

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Pa.R.A.P. 1925(b). Appellant filed a timely statement on August 14, 2017.

See id. On October 26, 2017, the court issued an opinion.

On appeal, Appellant raises the following question for our review.

1. Was trial counsel ineffective for not investigating and
presenting evidence establishing that the shooting arose out
of [Appellant’s] relationship with his ex-girlfriend[?]

2. Did the Commonwealth commit a Brady [v. Maryland, 373
U.S. 83 (1963)] violation by failing to provide the defense
with evidence related to [Appellant’s] relationship with his ex-
girlfriend[?]

3. Did the [trial c]ourt impose an illegal sentence in violation of
Alleyne v. United States, [570 U.S. 99 (2013)] and one
which was in excess of the statutory maximum and the
applicable sentence guideline range[?]

4. Was trial counsel ineffective for advising Appellant to reject a
plea offer[?]

5. Was trial counsel ineffective for failing to interview and call
witnesses to testify concerning the relationship between
[Appellant’s] girlfriend and the victim, which prejudiced
[Appellant] because, had they been called to testify, it would
have resulted in a verdict of voluntary manslaughter[?]

6. Whether the [PCRA] court erred in failing to issue an
[o]pinion upon dismissal of the PCRA and, [whether] the
[Superior C]ourt has the authority to consider it[?]

7. Was PCRA counsel ineffective in relying on nothing more than
the quarter sessions file, correspondence, and notes of
testimony[?]

(Appellant’s Brief, at 1-2).

We review the denial of a post-conviction petition to determine

whether the record supports the PCRA court’s findings and whether its order

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is otherwise free of legal error. See Commonwealth v. Faulk, 21 A.3d

1196, 1199 (Pa. Super. 2011). To be eligible for relief pursuant to the

PCRA, Appellant must establish, inter alia, that his conviction or sentence

resulted from one or more of the enumerated errors or defects found in 42

Pa.C.S.A. § 9543(a)(2). See 42 Pa.C.S.A. § 9543(a)(2). He must also

establish that the issues raised in the PCRA petition have not been

previously litigated or waived. See 42 Pa.C.S.A. § 9543(a)(3). An

allegation of error “is waived if the petitioner could have raised it but failed

to do so before trial, at trial, during unitary review, on appeal or in a prior

state post[-]conviction proceeding.” 42 Pa.C.S.A. § 9544(b). Further,

. . . a PCRA petitioner is not automatically entitled to an
evidentiary hearing. We review the PCRA court’s decision
dismissing a petition without a hearing for an abuse of
discretion.

[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 genuine 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) (citations

omitted).

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Preliminarily, we note that on appeal Appellant has waived his fourth

claim, ineffective advice to reject a plea offer. In his brief, Appellant

concedes that there is no merit to the issue as presented in his statement of

the questions involved. (See Appellant’s Brief, at 1, 5). Therefore, we

deem Appellant’s fourth issue abandoned, and we have no need to address

it.

In Appellant’s first and fifth issues, he claims he received ineffective

assistance of counsel. (See id. at 3-4, 6-7). Specifically, Appellant argues

that counsel failed to properly investigate and call witnesses that would have

supported defenses of either heat-of-passion or self-defense. (See id.). We

disagree.

It is well-settled that to obtain relief under the PCRA 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.” Commonwealth v. Johnson, 966 A.2d 523, 532 (Pa.

2009) (quoting 42 Pa.C.S.A. § 9543(a)(2)(ii)). “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.

(citation omitted). 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

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prejudiced by counsel’s act or omission. See id. at 532-33; see also

Strickland v. Washington, 466 U.S. 668, 687 (1984).

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

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

result of the proceeding would have been different[.]” Strickland, supra at

669. 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 a petitioner met the

first two prongs. See Commonwealth v. Travaglia, 661 A.2d 352, 357

(Pa. 1995), cert. denied, 516 U.S. 1121 (1996). “Counsel cannot be

deemed ineffective for failing to pursue a meritless claim.” Commonwealth

v. Loner, 836 A.2d 125, 132 (Pa. Super. 2003) (en banc), appeal denied,

852 A.2d 311 (Pa. 2004) (citation omitted).

Appellant contends that trial counsel was ineffective for failing to call

five witnesses. (See Appellant’s Brief, at 3-4, 6-7). However, our review of

the record demonstrates that Appellant failed to properly preserve this claim

in the PCRA court, and therefore, for the reasons discussed below, it is

waived.

In order to show that trial counsel was ineffective in failing to present

certain witnesses, Appellant must demonstrate

the existence of and the availability of the witnesses, counsel’s
actual awareness, or duty to know, of the witnesses, the
willingness and ability of the witnesses to cooperate and appear
on the defendant’s behalf and the necessity for the proposed

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testimony in order to avoid prejudice. Moreover, Appellant must
show how the uncalled witnesses’ testimony would have been
beneficial under the circumstances of the case.

Commonwealth v. Gibson, 951 A.2d 1110, 1133-34 (Pa. 2008) (citations

and quotation marks omitted). Appellant has not met this standard.

Appellant did not attach any statement or other documentation from

the witnesses to his PCRA petition; in fact, he did not even mention the

names of the witnesses in his petition. Further, Appellant did not provide

any information regarding the substance of their proposed testimony.4

(See Petition for Post-Conviction Relief, 4/20/16, at pages 1-10; PCRA

Memorandum, 4/30/16, at unnumbered pages 1-7). Appellant never states

that trial counsel was aware of the existence of these witnesses. (See id.).

Lastly, Appellant never explains how the testimony of these witnesses would

have proved beneficial to his case. (See id.). Thus, Appellant failed to set

forth in his PCRA petition the ineffectiveness analysis required by

Strickland. See Strickland, supra at 687. Because Appellant did not

____________________________________________

4 While Appellant does append various police statements of Hugh Durant,
Sr., Hakeem Plummer, Edgar Allen, James Best, and Zachary Justice, to his
brief, those documents were not submitted to the PCRA court and are not
contained in the certified record, thus we may not consider them. See
Jahanshahi v. Centura Development Co., Inc., 816 A.2d 1179, 1183
(Pa. Super. 2003); D’Ardenne v. Strawbridge and Clothier, Inc., 712
A.2d 318, 326 (Pa. Super. 1998), appeal denied, 734 A.2d 394 (Pa. 1998).
This Court has continually stated that copying material and attaching it to
the brief does not make it a part of the certified record. See First Union
Nat. Bank v. F.A. Realty Investors Corp., 812 A.2d 719, 724 n.3 (Pa.
Super. 2002); In re M.T., 607 A.2d 271, 275 (Pa. Super. 1992).

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establish any of the three prongs, we must deem counsel’s assistance

constitutionally effective. See Commonwealth v. Rolan, 964 A.2d 398,

406 (Pa. Super. 2008) (holding that where appellant fails to address any of

three prongs of ineffectiveness test, he does not meet his burden of proving

ineffective assistance of counsel, and counsel is deemed constitutionally

effective).

Further, even if this were not the case, the record reflects that, at trial,

Appellant agreed with defense counsel’s strategy of not calling any

witnesses. (See N.T. Trial, 12/18/12, at 98-99). This Court has held that

“[a] defendant who voluntarily waives the right to call witnesses during a

colloquy cannot later claim ineffective assistance and purport that he was

coerced by counsel.” Commonwealth v. Lawson, 762 A.2d 753, 756 (Pa.

Super. 2000), appeal denied, 781 A.2d 141 (Pa. 2001); see also,

Commonwealth v. Paddy, 800 A.2d 294, 315-16 (Pa. 2002) (holding that

defendant who acquiesced with strategy not to call witnesses at trial cannot

make claim for ineffective assistance of counsel on that basis). Thus, there

is no basis to upset the PCRA court’s finding that Appellant was not entitled

to PCRA relief on this basis.5

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5 Moreover, the claim is without merit. As the PCRA court explains in its
findings, the issue of Angel Townsville and her role in the incident was
thoroughly explored at trial, and three of the witnesses mentioned by
Appellant, Hakeem Plummer, Hugh Durant, Sr. and Edgar Allen, testified at
trial and were extensively cross-examined by trial counsel. (See N.T.
(Footnote Continued Next Page)

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In his second claim, Appellant argues that the Commonwealth withheld

exculpatory evidence. (See Appellant’s Brief, at 4-5). Specifically,

Appellant claims that “the prosecution withheld material evidence and

interview records of Nicole Mat[t]hews and the “mother” of Edgar Allen,

whom [sic] would give testimony that Angel Town[s]ville had been openly

instigating the conflict between [Appellant] and Watts, the decedent. Ms.

Town[s]ville had been heavily involved in manipulating both men in order to

pit one against the other for her own devi[c]es.” (Appellant’s Brief, at 4)

(record citation omitted). Appellant argues that this constituted a Brady

violation. We disagree.

This Court has explained:

In Brady, the United States Supreme Court held: “[T]he
suppression by the prosecution of evidence favorable to an
accused upon request violates due process where the evidence is
material either to guilt or to punishment, irrespective of the good
faith or bad faith of the prosecution.” Brady, supra at 87. . . .
In sum, there are three necessary components to demonstrate a
Brady violation: “[t]he evidence at issue must be favorable to
the accused, either because it is exculpatory, or because it is
impeaching; that evidence must have been suppressed by the
State, either willfully or inadvertently; and prejudice must have
ensued.” Commonwealth v. Causey, 833 A.2d 165, 170
(Pa.Super. 2003), appeal denied, 577 Pa. 732, 848 A.2d 927
(2004).

Evidence is material if there is a reasonable
probability that, had the evidence been disclosed to
the defense, the result of the proceeding would have
(Footnote Continued) _______________________

Hearing, 5/05/17, at 5-9; N.T. Trial, 12/17/12, at 103-14, 133-45; N.T.
Trial, 12/18/12, at 87-89).

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been different. The question is whether the
favorable evidence could reasonably be taken to put
the whole case in such a different light as to
undermine confidence in the verdict. As Brady and
its progeny dictate, when the failure of the
prosecution to produce material evidence raises a
reasonable probability that the result of the trial
would have been different if the evidence had been
produced, due process has been violated and a new
trial is warranted. Id. (internal citations and
quotation marks omitted).

Commonwealth v. Harris, 884 A.2d 920, 931-32 (Pa. Super. 2005),

appeal denied, 928 A.2d 1289 (Pa. 2007). It is Appellant’s burden to show

the evidence was suppressed or withheld by the prosecution. See

Commonwealth v. Spotz, 18 A.3d 244, 276 (Pa. 2011).

Prior to addressing the merits of this claim, we must first determine if

it is properly before us. The only claims Appellant raised on direct appeal

concerned the weight and sufficiency of the evidence. (See

Commonwealth v. Vincent, No. 1926 EDA 2009, unpublished

memorandum at *1-2 (Pa. Super. filed Dec. 23, 2014)). Thus, because this

claim could have been raised on direct appeal, but was not, it is waived.

See 42 Pa.C.S.A. § 9544(b).6

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6 In the instant matter, Appellant does not mention when he learned about
the alleged Brady violation and does not contend that it constitutes newly
discovered evidence within the meaning of 42 Pa.C.S.A. § 9545(b)(1)(ii) and
(b)(2). We note that the record at trial reveals that the defense was aware
that Commonwealth witness Edgar Allen was related to both Angel
Townsville and Nicole Matthews and cross-examined him regarding the
contention that Ms. Townsville tried to persuade Nicole Matthews to fight
(Footnote Continued Next Page)

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In his third claim, Appellant argued in his statement of the questions

involved that his sentence is illegal because it violated the United States

Supreme Court’s decision in Alleyne, supra. (See Appellant’s Brief, at 1).

However, Appellant abandons this claim in the body of his brief and, instead,

argues that his sentence is illegal because his sentence for carrying a

firearm in Philadelphia and possession of an instrument of crime should have

merged with his sentence for firearms not to be carried without a license.

(See id. at 5). We disagree.

“Whether Appellant’s convictions merge for sentencing is a question

implicating the legality of Appellant’s sentence.” Commonwealth v.

Baldwin, 985 A.2d 830, 833 (Pa. 2009). We have stated:

The issue of whether a sentence is illegal is a question of law;
therefore, our task is to determine whether the trial court erred
as a matter of law and, in doing so, our scope of review is
plenary. Additionally, the trial court’s application of a statute is
a question of law that compels plenary review to determine
whether the court committed an error of law.

Commonwealth v. Williams, 871 A.2d 254, 262 (Pa. Super. 2005)

(citations and quotation marks omitted). Section 9765 of the Judicial Code,

which governs the merger of sentences, provides:

(Footnote Continued) _______________________

Appellant on her behalf. (See N.T. Trial, 12/17/12, at 103-14). Thus,
Appellant does not and cannot claim that he was unaware of Ms. Townsville’s
involvement in the matter and her attempts to induce other individuals to
fight Appellant on her behalf. Therefore, Appellant’s Brady claim is waived
because it could have been raised on direct appeal and was not.

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No crimes shall merge for sentencing purposes unless the crimes
arise from a single criminal act and all of the statutory elements
of one offense are included in the statutory elements of the
other offense. Where crimes merge for sentencing purposes, the
court may sentence the defendant only on the higher graded
offense.

42 Pa.C.S.A. § 9765. When interpreting Section 9765, our Supreme Court

has directed that the courts apply an elements-based test when determining

questions of merger at the time of sentencing:

A plain language interpretation of Section 9765 reveals the
General Assembly’s intent to preclude the courts of this
Commonwealth from merging sentences for two offenses that
are based on a single criminal act unless all of the statutory
elements of one of the offenses are included in the statutory
elements of the other. . . .

Baldwin, supra at 837 (footnote omitted). We have explained:

[T]he threshold question is whether Appellant committed one
solitary criminal act. The answer to this question does not turn
on whether there was a break in the chain of criminal activity.
Rather, the answer turns on whether the actor commits multiple
criminal acts beyond that which is necessary to establish the
bare elements of the additional crime[.] If so, then the
defendant has committed more than one criminal act. This focus
is designed to prevent defendants from receiving a volume
discount on crime[.]

Commonwealth v. Orie, 88 A.3d 983, 1020 (Pa. Super. 2014), appeal

denied, 99 A.3d 925 (Pa. 2014) (quotation marks and citation omitted).

Here, our Supreme Court has specifically held that the charge of

carrying a firearm on the public streets of Philadelphia does not merge with

the charge of carrying a firearm without a license because each of the

statutes contains elements that the other does not. See Baldwin, supra at

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833-34. Moreover, this Court has held that these statutes do not merge

with possession of an instrument of crime for purposes of sentencing. See

Commonwealth v. Kull, 405 A.2d 1300, 1302 (Pa. Super. 1979), overruled

on other grounds by Commonwealth v. Campbell, 505 A.2d 262, 264 (Pa.

Super. 1986), appeal denied, 536 A.2d 1327 (Pa. 1987). Thus, Appellant’s

challenge to the legality of sentence lacks merit and there is no basis to

upset the PCRA court’s finding that Appellant was not entitled to PCRA relief

on this basis.

In Appellant’s sixth issue, he contends that the PCRA court failed to

comply with Pennsylvania Rule of Criminal Procedure 907. (See Appellant’s

Brief, at 7). We disagree.

Pennsylvania Rule of Criminal Procedure provides in pertinent part:

Except as provided in Rule 909 for death penalty cases,

(1) the judge shall promptly review the petition, any
answer by the attorney for the Commonwealth, and other
matters of record relating to the defendant's claim(s). If the
judge is satisfied from this review that there are no genuine
issues concerning any material fact and that the defendant is not
entitled to post-conviction collateral relief, and no purpose would
be served by any further proceedings, the judge shall give notice
to the parties of the intention to dismiss the petition and shall
state in the notice the reasons for the dismissal. The defendant
may respond to the proposed dismissal within 20 days of the
date of the notice. The judge thereafter shall order the petition
dismissed, grant leave to file an amended petition, or direct that
the proceedings continue.

(2) A petition for post-conviction collateral relief may be
granted without a hearing when the petition and answer show
that there is no genuine issue concerning any material fact and
that the defendant is entitled to relief as a matter of law.

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* * *

(4) When the petition is dismissed without a hearing, the
judge promptly shall issue an order to that effect and shall
advise the defendant by certified mail, return receipt requested,
of the right to appeal from the final order disposing of the
petition and of the time limits within which the appeal must be
filed. The order shall be filed and served as provided in Rule 114.

Pa.R.Crim.P. 907(1)(2) and (4).

In the instant matter, the record reflects that the trial court issued a

Rule 907 notice on May 5, 2017. That notice advised Appellant that the

court intended to dismiss the petition without a hearing and that Appellant

had an opportunity to respond within twenty days. (See Rule 907 Notice,

5/05/17, at 1). The notice also informed Appellant that his attorney had

filed a Turner/Finley letter and that the PCRA court had reviewed the case

and accepted the letter. The record also reflects that counsel had served a

copy of the Turner/Finley letter on Appellant. (See Motion to Withdraw as

Counsel, 2/19/17, at 2). Appellant elected not to respond to the Rule 907

notice.

Thus, the record shows that the PCRA court complied with all

requirements of Rule 907. Moreover, by failing to file a response to the

notice, Appellant has waived any challenge to its adequacy. See

Commonwealth v. Boyd, 923 A.2d 513, 514 n.1 (Pa. Super. 2007), appeal

denied, 932 A.2d 74 (Pa. 2007) (holding that failure to object to missing

Rule 907 notice waives issue on appeal); Commonwealth v. Edmiston,

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851 A.2d 883, 889 (Pa. 2004) (“Claims not raised in the PCRA court are

waived and cannot be raised for the first time on appeal to this Court.”)

(citation omitted). Appellant’s sixth issue is both waived and lacking in

merit.

In Appellant’s seventh and final issue, he contends that he received

ineffective PCRA counsel. (See Appellant’s Brief, at 7-8). He specifically

contends that counsel did not consult with him and did an insufficient

investigation of the evidence. (See id.). However, Appellant has waived his

claim of ineffective assistance of PCRA counsel because he did not raise the

claim in the PCRA court in response to a Rule 907 notice. See

Commonwealth v. Smith, 121 A.3d 1049, 1056 (Pa. Super. 2015), appeal

denied, 136 A.3d 981 (Pa. 2016) (holding that defendant waived his right to

raise claims of ineffective assistance of PCRA counsel by not responding to

Rule 907 notice).7

Accordingly, we affirm the PCRA court’s dismissal of Appellant’s PCRA

petition without a hearing.

Order affirmed.

____________________________________________

7 Even if Appellant had properly preserved the claim of ineffectiveness of
PCRA counsel, he would be entitled to no relief as he failed to demonstrate
that any of his underlying PCRA claims warranted relief.

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Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 11/27/18

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