J-A22025-19
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
NAEEM J. GRAY, :
:
Appellant : No. 2591 EDA 2018
Appeal from the Order Entered August 21, 2018
in the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0004210-2013
BEFORE: MURRAY, J., STRASSBURGER, J.* and PELLEGRINI, J.*
MEMORANDUM BY STRASSBURGER, J.: FILED SEPTEMBER 06, 2019
Naeem J. Gray (Appellant) appeals from the August 21, 2018 order
dismissing his petition filed pursuant to the Post Conviction Relief Act
(PCRA), 42 Pa.C.S. §§ 9541-9546. Upon review, we affirm.
The PCRA court provided the following procedural history.1
On March 2, 2013, [Appellant] was arrested and charged
with robbery, burglary, criminal conspiracy to commit robbery
and burglary, two violations of the Uniform Firearms Act
(VUFA)[], possession of an instrument of crime (PIC), and
knowing and intentional possession of a controlled substance[].
On December 12, 2013, a jury found [Appellant] guilty of all
charges. On April 11, 2014, th[e trial] court sentenced
[Appellant] to an aggregate term of 12 to 24 years [of] state
incarceration plus 5 years [of] reporting probation. On April 21,
2014, [Appellant] filed a motion for reconsideration, which was
1A prior panel of this Court detailed the underlying facts of this case. See
Commonwealth v. Gray, 145 A.3d 790 (Pa. Super. 2016) (unpublished
memorandum at 1-4). Given our disposition, we need not recount them
here.
* Retired Senior Judge assigned to the Superior Court.
J-A22025-19
denied by operation of law on August 20, 2014. On September
22, 2014, [Appellant] filed a notice of appeal to the Superior
Court. On April 25, 2016, the Superior Court affirmed
[Appellant’s] judgment of sentence.
On December 30, 2016, [Appellant] filed a pro se PCRA
petition, claiming ineffective assistance of counsel for failure to
view the surveillance video with him in advance of trial so that
he could have produced an alibi witness. On April 18, 2017,
John Cotter, Esquire[,] was appointed as PCRA counsel. On
September 15, 2017, [Attorney] Cotter filed an amended
petition, claiming that trial counsel was ineffective for failing to
call [Appellant] as a witness at trial and failing to call an alibi
witness.
PCRA Court Opinion, 11/26/2018, at 1-2 (unnecessary capitalization
omitted).
Relevant to this appeal, Appellant claimed in his amended PCRA
petition that he was entitled to relief due to counsel’s unreasonable advice
not to testify. Amended PCRA Petition, 9/15/2017, at ¶ 4(a) (“The advice
that counsel gave to [Appellant] as to why he should not testify was so
unreasonable that it vitiated [Appellant’s] knowing and intelligent decision
not to testify on his own.”).
On July 17, 2018, the PCRA court issued notice of its intent to dismiss
Appellant’s PCRA petition without a hearing pursuant to Pa.R.Crim.P. 907.
Appellant did not file a response, and on August 21, 2018, the PCRA court
dismissed Appellant’s PCRA petition as meritless.
-2-
J-A22025-19
This timely-filed notice of appeal followed.2 On appeal, Appellant
claims the PCRA court erred in denying without a hearing his claim that trial
counsel was ineffective for “vitiating [Appellant’s c]onstitutional right to
testify in his own defense at trial[.]” Appellant’s Brief at 2.
We begin with our standard of review.
This Court analyzes PCRA appeals in the light most
favorable to the prevailing party at the PCRA level. Our review
is limited to the findings of the PCRA court and the evidence of
record and we do not disturb a PCRA court’s ruling if it is
supported by evidence of record and is free of legal error.
Similarly, we grant great deference to the factual findings of the
PCRA court and will not disturb those findings unless they have
no support in the record. However, we afford no such deference
to its legal conclusions. Where the petitioner raises questions of
law, our standard of review is de novo and our scope of review is
plenary. Finally, we may affirm a PCRA court’s decision on any
grounds if the record supports it.
Commonwealth v. Benner, 147 A.3d 915, 919 (Pa. Super. 2016) (quoting
Commonwealth v. Perry, 128 A.3d 1285, 1289 (Pa. Super. 2015)).
“To establish ineffectiveness of counsel, a PCRA petitioner must show
the underlying claim has arguable merit, counsel’s actions lacked any
reasonable basis, and counsel’s actions prejudiced the petitioner.”
Commonwealth v. Jones, 71 A.3d 1061, 1063 (Pa. Super. 2013) (citations
omitted). “A failure to satisfy any prong of the ineffectiveness test requires
2 The PCRA court did not order Appellant to file a Pa.R.A.P. 1925(b)
statement, and none was filed. The PCRA court filed a Pa.R.A.P. 1925(a)
opinion.
-3-
J-A22025-19
rejection of the claim of ineffectiveness.” Commonwealth v. Daniels, 963
A.2d 409, 419 (Pa. 2009).
Claims alleging ineffectiveness of counsel premised on
allegations that trial counsel’s actions interfered with an
accused’s right to testify require a defendant to prove either that
counsel interfered with his right to testify, or that counsel gave
specific advice so unreasonable as to vitiate a knowing and
intelligent decision to testify on his own behalf.
Commonwealth v. Miller, 987 A.2d 638, 660 (Pa. 2009) (citation and
quotation marks omitted). However, “[a] defendant will not be afforded
relief where he voluntarily waives the right to take the stand during a
colloquy with the court, but later claims that he was prompted by counsel to
lie or give certain answers.” Commonwealth v. Lawson, 762 A.2d 753,
756 (Pa. Super. 2000).
Finally, with respect to PCRA evidentiary hearings,
[i]t is well settled that “[t]here is no absolute right to an
evidentiary hearing on a PCRA petition, and if the PCRA court
can determine from the record that no genuine issues of material
fact exist, then a hearing is not necessary.” Commonwealth v.
Jones, 942 A.2d 903, 906 (Pa. Super. 2008). “[T]o obtain
reversal of a PCRA court’s decision to dismiss a petition without
a hearing, an appellant must show that he raised a genuine issue
of fact which, if resolved in his favor, would have entitled him to
relief, or that the court otherwise abused its discretion in
denying a hearing.” Commonwealth v. Hanible, [] 30 A.3d
426, 452 ([Pa. ]2011).
Commonwealth v. Maddrey, 205 A.3d 323, 328 (Pa. Super. 2019).
Here, the PCRA court dismissed Appellant’s ineffective-assistance-of-
counsel claim as undeveloped and unsupported by the facts. PCRA Court
Opinion, 11/26/2018, at 4-5. Additionally, the PCRA court found this claim
-4-
J-A22025-19
also failed because Appellant knowingly, intelligently, and voluntarily waived
his right to testify during his jury trial. Id. at 6-7.
Upon review, we find that the PCRA court’s findings are supported by
the record and are free of legal error. Critically, Appellant never elucidates
counsel’s allegedly unreasonable advice or how it vitiated Appellant’s waiver
of his right to testify. See Miller, supra. As such, the PCRA court did not
err in dismissing Appellant’s PCRA petition without a hearing as Appellant
failed to present any issue of material fact in support of his bald claim of
ineffective assistance of counsel. See Maddrey, supra. Moreover, the trial
court’s colloquy demonstrates that Appellant knowingly, intelligently, and
voluntarily waived his right to testify. See N.T., 12/12/2013, at 125-27
(Appellant affirming that he spoke with counsel about the advantages and
disadvantages of testifying, that he was satisfied with counsel’s
representation, and that he was making the decision not to testify of his own
free will). Accordingly, the PCRA court did not err in dismissing Appellant’s
PCRA petition.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/6/19
-5-