Com. v. Darden, M.

J-S45014-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.0.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA

MATTHEW DARDEN A/K/A GEORGE
DAVIS
No. 3326 EDA 2019
Appellant

Appeal from the PCRA Order Entered November 14, 2019
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0002495-2015

BEFORE: BOWES, J., KUNSELMAN, J., and MURRAY, J.
MEMORANDUM BY BOWES, J.: FILED FEBRUARY 05, 2021

Matthew Darden a/k/a George Davis appeals from the November 14,
2019 order denying his petition for relief pursuant to the Post-Conviction Relief
Act (“PCRA”). We affirm.

This Court previously authored a comprehensive summary of the factual
and procedural history of this case. See Commonwealth v. Darden, 194
A.3d 712 (Pa.Super. 2018) (unpublished memorandum at 1-2). In short, a
jury convicted Appellant of, inter alia, involuntary deviate sexual intercourse
(“IDSI”) and aggravated indecent assault in connection with multiple sexual
assaults he committed against his twelve-year-old stepdaughter in the spring
of 2011. At trial, the victim recounted these events in detail. The victim’s
brother and her school counselor separately testified that the victim disclosed

these assaults “two or three years” after they occurred. Id. at 1.
J-S45014-20

On January 12, 2017, the trial court sentenced Appellant to an
aggregate term of thirty-eight to seventy-six years of imprisonment.
“Although still represented by counsel, [Appellant] filed a pro se notice of
appeal on January 17, 2017." Id. While Appellant initially sought to represent
himself on direct appeal, he eventually abandoned those efforts. On July 26,
2018, this Court affirmed his judgment of sentence. Id. at 3. Appellant did
not seek allowance of appeal before our Supreme Court.

On October 15, 2018, Appellant timely filed a pro se PCRA petition.
Counsel was appointed and an amended PCRA petition was filed asserting
various claims that Appellant’s trial counsel had rendered ineffective
assistance of counsel by failing: (1) to file a post-sentence motion challenging
the weight of the evidence; (2) to file a motion for reconsideration of
sentence; and (3) to question a juror about a conversation with a courtroom
employee. See Amended PCRA Petition, 4/7/19, at 7. In response, the
Commonwealth filed a motion to dismiss, arguing that Appellant’s claims
lacked merit because he could not establish prejudice.

On October 24, 2019, the PCRA court issued notice of its intent to
dismiss Appellant’s petition without a hearing pursuant to Pa.R.Crim.P. 907.
Upon receiving no response from Appellant, the PCRA court dismissed the
petition on November 14, 2019. The next day, Appellant filed notice of appeal
to this Court. Both Appellant and the PCRA court have complied with the
requirements of Pa.R.A.P. 1925(b).

Appellant has raised the following questions for our consideration:

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J-S45014-20

I. Whether the court erred 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 court was in error in not granting relief on the
issue that [trial] counsel was ineffective for the following reasons:

a. Counsel was ineffective for failing to file a post[-]verdict

motion that the verdict was against the weight of the
evidence.

b. Counsel was ineffective for failing to file a motion for
reconsideration of sentence.

c. Counsel was ineffective for failing to question a juror
about a conversation the juror had with a courtroom
employee.
Appellant’s brief at 8.
In reviewing these issues, we are mindful of the following legal
principles:
Our standard of review in a PCRA appeal requires us to determine
whether the PCRA court’s findings of fact are supported by the
record, and whether its conclusions of law are free from legal
error. The scope of our review is limited to the findings of the
PCRA court and the evidence of record, which we view in the light
most favorable to the party who prevailed before the court... .
The PCRA court’s factual findings and credibility determinations,
when supported by the record, are binding upon this Court... .
However, we review the PCRA court’s legal conclusions de novo.
Commonwealth v. Small, 238 A.3d 1267, 1280 (Pa. 2020) (internal
quotation marks and citations omitted).
The PCRA court authored a cogent opinion pursuant to Pa.R.A.P.

1925(a), that provides a well-reasoned and complete discussion of the factual

and procedural history of Appellant’s case. Furthermore, the PCRA court has

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J-S45014-20

addressed each of Appellant’s claims with apposite and persuasive citations to
legal authorities and the certified record. We discern no legal errors in the
PCRA court’s analysis and we find that its factual findings and credibility
determinations are fully supported by the contents of the certified record.
Accordingly, we will adopt the reasoning set forth in the PCRA court’s
Rule 1925(a) opinion as our own.! See PCRA Court Opinion, 3/4/20, at 5-7
(determining that trial counsel was not ineffective by not filing a post-sentence
motion challenging the weight of the evidence because the verdict did not
shock the trial court’s conscience); 7-10 (explaining that trial counsel cannot
be ineffective for failing to file a motion for reconsideration of sentence that

lacked merit); 10-11 (indicating that Appellant failed to articulate how trial

1 In its Rule 1925(a) opinion, the trial court suggests in dicta that Appellant’s
trial counsel cannot be held ineffective for failing to file post-sentence motions
due to Appellant’s filing of a premature pro se notice of appeal. See Trial
Court Opinion, 3/4/20, at 8 (‘Counsel cannot be held deficient due to
[Appellant’s] own actions.”). This passing statement is not relevant to the
PCRA court’s legal analysis, which concludes on separate and correct grounds
that Appellant cannot demonstrate that counsel’s alleged oversights would
ultimately entitle him to relief, 7.e., the prejudice prong of the ineffectiveness
standard set forth in Strickland v. Washington, 466 U.S. 668, 687 (1984),
and Commonwealth v. Pierce, 527 A.2d 973, 975 (Pa. 1987).

For the sake of clarity, we note that our Supreme Court has previously held
that a “merely premature” pro se notice of appeal filed by a represented
defendant does not inextricably divest the trial court of jurisdiction to act upon
a timely, counseled post-sentence motion that is subsequently filed. See
Commonwealth v. Cooper, 27 A.3d 994, 1007-08 (Pa. 2011). Thus, we
discern that counsel is not excused from an obligation to file post-sentence
motions merely due to his “unschooled” client’s “ill-advised” filing of a pro se
notice of appeal. Id.

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J-S45014-20

counsel’s failure to question a juror concerning a brief encounter with a
courtroom employee prejudiced him); 11-12 (concluding that no evidentiary
hearing was warranted because there were no “material issues of fact” that,
if decided in Appellant’s favor, would have entitled him to relief).

Order affirmed.

Judgment Entered.

seph D. Seletyn, Esqy
Prothonotary

Date: 2/5/2021
Circulated 01/27/2021 02:51 PM

COURT OF COMMON PLEAS :
FIRST JUDICIAL DISTRICT OF PENNSYLVANIA si ae
CRIMINAL TRIAL DIVISION SED HAR -b AM IQ? 35

COMMONWEALTH OF PENNSYLVANIA
PCRA

Vv.
CP-51-CR-0002495-2015

MATTHEW DARDEN a/k/a
George Davis

OPINION

STATEMENT OF THE CASE

Defendant is appealing the dismissal of his PCRA petition as having no merit. Defendant
complains trial counsel was ineffective for failing to file a post sentence motion challenging the
_ weight of the evidence, failing to file a post sentence motion for reconsideration of sentence and
failing to question a juror regarding a conversation with a court employee. Defendant also

complains the Court erred in not conducting an evidentiary hearing. Defendant’s complaints are

without merit.

PROCEDURAL HISTORY

On September 1, 2016, at the conclusion of his jury trial, Defendant was found guilty on
the charges of Involuntary Deviate Sexual Intercourse (IDS) of a child less than thirteen years of
age, Aggravated Indecent Assault of a child Jess than thirteen years of age, and related offenses.
On January 12, 2017, Defendant was sentenced to an aggregate period of confinement in a state

correctional facility of thirty-eight to seventy-six years.

On January 17, 2017, Defendant timely filed a direct appeal to the Superior Court of

Pennsylvania, at 454 EDA 2017, which affirmed his judgment of sentence on July 26, 2018.
On October 15, 2018, Defendant timely filed the instant counseled PCRA Petition pursuant to 42
Pa.C.S.A. §9541, et. Seq. On November 8, 2018, Peter A. Levin, Esq., was appointed to represent
Defendant for the purpose of his PCRA petition. On April 8, 2019, Defendant filed a counseled
amended PCRA petition. On August 8, 2019, the Commonwealth filed a motion to dismiss. On
October 24, 2019, after a hearing and careful review of the record, the Court issued its notice,
pursuant to Rule 907 of the Pennsylvania Rules of Criminal Procedure (Pa. R. Crim. P.), advising
Counsel and Defendant that it intended to dismiss Defendant’s petition within twenty days of
issuance. On November 14, 2019, receiving no response, the Court issued an Order dismissing
Defendant’s PCRA Petition as being without merit.

On November 15, 2019, Defendant timely a filed the instant Notice of Appeal to the
Superior Court of Pennsylvania. On December 18, 2019, this Court filed and served on Defendant
an Order, pursuant to Rule 1925(b) of the Pennsylvania Rules of Appellate Procedure, directing
Defendant to file and serve a Statement of Errors Complained of on Appeal, within 21 days of the
Court’s Order. On January 8, 2020, Defendant timely filed his “Statement of Errors Complained
of on Appeal.” In his statement of errors, Defendant raises four issues, namely:

1. “a) Counsel was ineffective for failing to file a post verdict motion that the verdict was
against the weight of evidence. (See Amended PCRA 4/7/19, p. 11-13)
b) Counsel was ineffective for failing to file a motion for reconsideration of sentence.
(See Amended PCRA 4/7/19, p. 13-16)
c) Counsel was ineffective for failing to question a juror about a conversation he had
with a courtroom employee. (See Amended PCRA 4/7/19, p. 16-17)

2. The PCRA court was in error in failing to grant an evidentiary hearing on the above

issues.”

DISCUSSION OF THE ISSUES RAISED:

The statutory intent of the PCRA Act is to function as an extraordinary proceeding
designed to provide relief to “persons convicted of crimes they did not commit and serving illegal
sentences.” (42 Pa.C.S.A. 9542) Tt is not meant to function as a substitute for or a continuation
of direct appellate rights. Therefore, in pursuing PCRA relief, applicants must establish through
their pleading, sufficient grounds to justify the granting of relief. Consequently, claims of
sneffectiveness are subject to specific pleading and proof requirements under the PCRA act. “Mere
boilerplate assertions...... are inadequate to prove the effective denial of the right to counsel
necessary to warrant PCRA relief. Commonwealth v. Simmons, 804 A.2d 625, 639 (Pa. 2001)

Defendant, in seeking PCRA relief on the grounds of ineffective assistance of counsel must
plead and establish by a “reasonable probability” that the outcome of his trial would have been
different but for counsel’s ineffectiveness. The essence of a claim of ineffective assistance of
counsel is that counsel's unprofessional errors so upset the adversarial balance between defense -
and prosecution that the trial was rendered unfair and the verdict rendered suspect.
Commonwealth v. Wantz, 84 A.3d 324, 331 (Pa. 2014) When the issue of the ineffectiveness of
counsel is raised; “Counsel is presumed to have been effective and the defendant has the burden
of proving otherwise.” Commonwealth v. Tilley, 780 A.2d 649, 652 (Pa. 2001) Our Supreme
Court, in Commonwealth v. Lesko, 15 A.3d 345 (Pa. 2011), reaffirmed its previously enunciated
Strickland/Pierce! test, which established that in order to prevail in his complaint that counsel was

ineffective Defendant must satisfy each prong of a three prong test. That is, he must establish:

a

| Suriektand v. Washington, 466 US. 668, 687, 1048, Ct. 2052, 80 L.Ed.2d 674 (1984); Conunonweatih vy, Pierce,
515 Pa. 153, 527 A.2d 973, 975 (1987)

“(1) the underlying claim has arguable merit; (2) no reasonable basis existed for counsel's actions
or failure to act; and (3) petitioner suffered prejudice as a result of counsel's error such that there
is a reasonable probability that the result of the proceeding would have been different absent such
error.” Id., at 373 “With regard to the second, i.¢., the reasonable basis prong, we will conclude
that counsel's chosen strategy lacked a reasonable basis only if Appellant proves that an alternative
not chosen offered a potential for success substantially greater than the course actually pursued.”
Conmnonweaith v. Spotz, 18 A.3d 244, 260 (Pa. 2011) (Internal citations and quotations omitted)
When prejudice cannot be presumed, Defendant must plead and prove actual prejudice under
“cnickland” Commonwealth v. Reaves, 923 A.2d 1119, 1127 (2007) “The Strickland test for
prejudice requires a showing of a reasonable probability that the outcome of
the... proceeding. .: would have been different.” Commonweatth v. Daniels, 104 A.3d 267, 296-
97 (Pa. 2014) A reasonable probability is a probability sufficient to undermine confidence in the
outcome.” Commonwealth v. Spotz, Supra.

“A failure to satisfy any prong of the test for ineffectiveness will require rejection of the
claim.” Commonwealth v. Watson, 835 A.2d 786, 793 (Pa. Super. 2003) Furthermore, “a court
is not required to analyze the elements of an ineffectiveness claim in any particular order of
priority; instead, if a claim fails under any necessary element of the Strickland test, the court may
proceed to that element first. Lesko, at 374 (2011) “If it is clear that Appellant has not
demonstrated that counsel's act or omission adversely affected the outcome of the proceedings, the
claim may be dismissed on that basis alone and the court need not first determine whether the first

and second prongs have been met.” Commonwealth y. Albrecht, 554 Pa. 31, 46, 720 A.2d 693,

701 (1998)

I. COUNSEL WAS NOT INEFFECTIVE FOR FAILING TO FILE A POST
VERDICT MOTION THAT THE VERDICT WAS AGAINST THE WEIGHT
OF EVIDENCE.

Defendant, in his first statement of errors, complains trial counsel was “ineffective for
failing to file a post verdict motion that the verdict was against the weight of evidence.”
Defendant’s complaint is both disingenuous and without merit.

“A motion for new trial on the grounds that the verdict is contrary to the weight of the
evidence, concedes that there is sufficient evidence to sustain the verdict... A new trial should not
be granted because of a mere conflict in the testimony or because the judge on the same faets
would have arrived at a different conclusion.” Commonwealth v. Widmer, 744 A.2d 745, 751-52
(Pa, 2000) (internal citations omitted) In Commonwealth. v. Gaskins, 692 A.2d 224, 227 (Pa.
Super. 1997) our Superior Court held that “credibility determinations are made by the fact finder
and that challenges thereto go to the weight, and not the sufficiency, of the evidence.” “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 and that a new trial should be granted
in the interest of justice.” Id., at 753

“The weight of the evidence 1s exclusively for the finder of fact who is free to believe all,
none or some of the evidence and to determine the credibility of the witnesses.” Commonwealth
v, Johnson, 542 Pa. 384, 394, 668 A.2d 97, 101 (1995). “The granting of a new trial is an inherent
power and immemorial right of the trial court and an appellate court will not find fault with the
exercise of such authority in the absence of a clear abuse of discretion.” Clewell v. Pummer, 388
Pa. 592, 598-99 (1957). “Before a trial court may award a new trial on the ground that the verdict
is against the weight of the evidence, it must appear that the verdict was so contrary to the evidence

as to shock one’s sense of justice and make the award of a new trial imperative.” Commonwealth

v. Rossetti, 863 A.2d 1185, 1191 (Pa. Super. 2004), citing Commonweatth v. Hunter, 554 A.2d
550 (Pa. Super. 1989). “Whether a new trial should be granted on such grounds is addressed to
the sound discretion of the trial court.” Commonwealth v. Murray, 597 A.2d 111, 113 Wa. Super.
1991).

Prior to imposing sentence, counsel announced his intention to file post sentence motions.
Despite this, Defendant filed his pro se Notice of Appeal five days after the imposition of sentence,
thus depriving counsel the opportunity to timely file a reasoned and considered post sentence
motion. (N.T. 1/12/17, pgs. 20, 21, 26) (Also see counsel’s Motion to Withdraw as Counsel, filed
3/17/2017)

That said, as discussed in its prior {925(a) opinion, at 454 EDA 2017, the evidence at trial
was credible, direct and unequivocal. The complaining witness testified that she had been sexually
violated by the Defendant, her stepfather, twice while she was only twelve years old. She testified
that, on the first occasion, Defendant digitally penetrated her vagina with his finger. (N.T. 8/30/16,
pes. 77, 78, 79, 80) The next physical contact occurred when Defendant told her to lay down on
the bed so he could perform the “root” ritual on her, which she defined as Defendant performing
oral sex on her. (N.T. 8/30/ 16, pg. 81, 83, 84) She also testified that she had been told by
Defendant “Don’t tell your mom, it would break her heart...” (N.T. 8/30/16, pg. 80) The
complainant’s testimony was corroborated by her father, brother and school counselor, each of
whom testified that the complainant subsequently confided in them that she had been assaulted by
Defendant. (N.T. 8/30/16, pgs. 28, 29, 36, 143, 155)

Defendant ignores the record. As the Court explained in its prior 1925(a) opinion, at pg.
6, citing Commonwealth v. Castelhun, 889 A.2d 1228, 1232 (Pa. Super. 2005), “it is well

established that “the uncotroborated testimony of the complaining witness is sufficient to convict

a defendant of sexual offenses.” As discussed above, the complainant’s testimony regarding
Defendant’s abuse was credible, clear and direct. The jury, on the other hand, could have believed
Defendant’s equally direct testimony that no such abuse occurred. The jury, in convicting
Defendant, was not persuaded by his testimony.

That said, in reviewing the record before it, the Court cannot say that the “verdict was so
contrary to the evidence as to shock one's sense of justice and make the award of a new trial
imperative.” The Court finds Defendant was not prejudiced by counsel’s actions, for had counsel
presented a motion challenging the verdict as being against the weight of the evidence, the Court

would have denied it.

I. COUNSEL WAS NOT INEFFECTIVE FOR FAILING TO FILE A POST
TRIAL MOTION TO RECONSIDER SENTENCE.

Defendant, in his second statement of errors, complains trial counsel was “ineffective for
failing to file a motion for reconsideration, of sentence.” Again, Defendant’s complaint is both
disingenuous and without metit.

It is well established that in reviewing sentencing matters, the deciston of the trial court is
accorded “great weight, as it is in the best position to view the defendant's character, displays of
remorse, defiance or indifference, and the overall effect and nature of the crime.” Commonwealth
vy. Canfield, 639 A.2d 46, 50 (Pa. Super. 1994) (internal citation omitted) Further, a sentence
imposed by the séntencing judge will not be disturbed on appeal absent a manifest abuse of
discretion. Commonwealth v. Galletta, 864 A.2d 532, 34 (Pa. Super. 2004), Our Supreme Court
in Commonwealth v. Walls, 926 A.2d 957, 961 (Pa. 2007), citing its decisions in Commonwealth
y. Smith, 543 Pa. 566, 673 A.2d 893, at 895 (Pa. 1996), held an abuse of discretion is more than

a mere error of judgment, and a sentencing court will not have abused its discretion unless “the

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record disclosed that the judgment exercised was manifestly unreasonable, or the result of
partiality, prejudice, bias, or ill-will....... The rationale behind such broad discretion and the
concomitantly deferential standard of appellate review is that the sentencing court is in the best
position to determine the proper penalty for a particular offense based upon an evaluation of the
individual circumstances before it." Furthermore, our Superior Court, in Commonwealth v.
Mastromarino, 2 A.3d 581, 586-5875 (Pa.Super.2010) reiterated that; “Long standing precedent
of this Court recognizes that 42 Pa.C.S.A. §9721, affords the sentencing court’s discretion to
impose its sentence concurrently or consecutively to other sentences being imposed at the same
time or to sentences already imposed.”

It has long been recognized that failure to seek reconsideration of sentence does not rise to
the level of per se ineffectiveness of counsel. Whether trial counsel “can be deemed ineffective,
then, depends upon whether appellee has proven that a motion to reconsider sentence, if filed...,
would have led to-a different and more favorable outcome at.. sentencing. In this context, the
only way the proceeding would have been more favorable would be if counsel's objection secured
a reduction in the sentence.” Commonwealth v. Reaves, 923 A.2d 1119, 1131-32 (Pa. 2007)
Thus, Defendant must establish actual prejudice resulting from counsel’s failure to file such a
motion, That is, he must establish that there was a “reasonable probability” that such a motion
would have resulted in a reduction of his sentence.

As noted above, Defendant’s filing of his pro se Notice of Appeal five days after the
imposition of sentence, effectively deprived counsel of the ability to timely file a reasoned and
considered motion for reconsideration of sentence. Counsel cannot be held deficient due to

Defendant’s own actions.

That said, it was agreed by counsel that Defendant’s prior record score (PRS) was 5. (N.T.,
1/12/17, pg. 12) It was also agreed that the offense gravity scores (OGS) on the charge of IDSI on
4 child and unlawful contact with a minor was 14, with a guidelines recommendation of 192
months to statutory limits + 12 months. On the charge of aggravated indecent assault of a child,
the OGS is 12, with a guideline sentence of 84 to 102 months + 12. On each of the charges of
corrupting the morals of a minor and endangering the welfare of a child, the OGS is 6 with a
guideline sentence of 21 to 27 months, + 6. (N.T., 1/12/17, pg. 12, 13) Tt was also agreed by
counsel that Defendant was determined to be a Sexually Violent Predator (SVP). (N.T., 1/12/17,
pgs. 9-11, 28)

After reviewing Defendant’s PSI, sexual assessment evaluation and listening to argument
of counsel, the Court found Defendant was likely to reoffend. (N T., 1/12/17, pg. 27) In imposing
sentence, the Court noted for the record that “I'm going to impose a guideline sentence,”
whereupon the Court imposed the following consecutive periods of incarceration in a state
correctional facility as follows; 1) on the charge of IDSI with a child, 16 to 32 years; 2) on the
charge of unlawful contact with a minor, 10 to 20 years; 3) on the charge of aggravated indecent
assault of a child, 8 to 16 years; 4) on the charge of endangering the welfare of a child, 2 to 4 years;
and 5) on the charge of corruption of a minor 2 to 4 years. In short, the court imposed an aggregate
sentence of 38 to 76 years of confinement. (N.T., 1/12/17, pgs. 27, 28)

Prior to imposing sentence, Defendant requested that his sentence be within the guidelines.
(N.T., 1/12/17, pg. 17) Each sentence imposed is clearly within the guidelines, as requested.
However, Defendant’s prior record score of 5 belies his extensive criminal history. (N.T., 1/12/17,
pgs. 13, 14) In light of this and the likelihood of Defendant reoffending, the Court felt it was

appropriate that his sentences run consecutively to each other. Nevertheless, Defendant’s sentence
was reasonable under the circumstances and had Defendant filed a motion for reconsideration, the

Court would have denied it.

WL. COUNSEL WAS NOT INEFFECTIVE FOR FAILING TO QUESTION A
JUROR.

Defendant, in his third statement of errors, complains trial counsel was “ineffective for
failing to question a juror about a conversation he had with a courtroom employee.” Defendant’s
complaint is without merit.

It has long been recognized that ex parte “contact among jurors, parties, and witnesses is
viewed with disfavor.” Commonwealth v. Brown, 786 A.2d 961, 972 (Pa. 2001) (internal citations
omitted) However, in the event of improper or inadvertent contact between a juror and a witness
there is no per se rule requiring a mistrial. Commonwealth v. Mosley, 535 Pa, 549, 637 A.2d 246
(1993) Additionally, “only those ex parte communications between a court and jury which are
likely to prejudice a party will require reversal.” Commonwealth v. Bradley, 501 Pa. 25, 27, 459
A.2d 733, 734 (1983) “It is within the discretion of the trial court to determine whether a defendant
has been prejudiced by misconduct or impropriety to the extent that a mistrial is warranted.”
Brown, Supra., at 972 (Internal citations omitted)

Prior to the commencement of trial, the Court advised counsel, outside of the hearing of
the jury that; “Last night my tipstaff was riding on the train and one of the jurors was talking to
him about court in general, nothing [about] the case.” (N.T., 8/30/16, pg. 4) After being sworn
in, the Court’s Tipstaff testified as follows:

“I got on the train to go home. I caught the train at Jefferson. It was a little packed.
There was still a couple seats left. It went into Suburban Station which was very heavily
packed. He just came up and sat right next to me, didn't say nothing. I didn't look at
him. I was looking out the window. And he turned around to me and he said, "You

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work at the courthouse." And I said yes. And he said, "I thought I recognized you." I
didn't say nothing. He then, after a few minutes we started moving out of 30th Street
Station, he asked about the job. And I said, "Well, it is interesting in the beginning and
at the end it is like water off the duck's back. You get used to it." And that is about as
far as I can remember.” (N.T., 8/30/16, pg. 5)

When specifically asked if the case had been discussed, the Tipstaff responded; “No.” (N.T.,
8/30/16, pe. 6) |

Considering that the jury had not yet been sworn in and no testimony had been taken, the
Court concluded that this encounter was brief and coincidental, having no bearing on the trial.
Furthermore, counsel, when asked if it “is still necessary to bring out the juror,” responded; “No,
not based on that.” (N.T., 8/30/16, pg. 6)

Defendant has utterly failed to address his burden of establishing how he was prejudiced
by this encounter. The Court finds Defendant was not prejudiced by counsel’s failure to question

the juror involved.’

IV. DEFENDANT WAS NOT ENTITILED TO AN EVIDENTIARY HEARING.

Defendant complains that the Court “was in error in failing to grant an evidentiary hearing
on the above issues.” Defendant’s complaint is without merit.

There is no absolute right to an evidentiary hearing under the PCRA. Commonwealth v.
Hardcastle, 701 Ad 541, 542 (Pa. 1997); In accord, Commonweatth v. Keaton, 45 A3d 1050,
1094 (Pa, 2012). A “PCRA court has discretion to dismiss a petition without a hearing when the
court is satisfied that there are no genuine issues of material fact, the petitioner is not entitled to
post-conviction collateral relief, and no legitimate purpose would be served by further
proceedings...To 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

1]

favor, would have entitled him to relief, or that the court otherwise abused its discretion in denying
ahearing.” Commonwealth v. Blakeney, 108 A.3d 739, 750 (Pa. 2014) (Internal citations omitted)
That is, to justify a hearing, Defendant must prove that there is a genuine issue of material fact
which could entitle him to relief. Commonwealth v. Clark, 961 A.2d 80, 84 (Pa. 2008);
Commonwealth vy, D’Amato, 856 A.2d 806, 820 (Pa, 2004); Pa.R.Crim.P. 908(A)(2).

As discussed above, the Court finds Defendant has failed to “raise a genuine issue of fact
which, if resolved in his favor, would have entitled him to relief.” Defendant has not met, nor

even altempted to address, his burden under Strickland/Pierce.

CONCLUSION

In conclusion, upon careful review of the record before it, the Court finds that
Defendant has failed to meet his burden in establishing that trial counsel failed to render effective
representation in failing to file post-trial motions or in failing to question a juror. The Court also

finds that Defendant has failed to raise any material issues necessitating an evidentiary hearing.

BY THE COURT:
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foA\ 3 Of
March 2, 2020 CD an Npbencntnn

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HON. CHARLES J. CONTINGHANS Tl

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