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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
WANDALY PEREZ-HOOD,
Appellant No. 139 MDA 2016
Appeal from the PCRA Order Entered January 7, 2015
In the Court of Common Pleas of Lackawanna County
Criminal Division, at No(s): CP-35-CR-0001695-2006
BEFORE: BENDER, P.J.E., PANELLA, J., and STEVENS, P.J.E.*
MEMORANDUM BY PANELLA, J. FILED AUGUST 19, 2016
Wandaly Perez-Hood (“Appellant”) appeals pro se from the order
denying, without a hearing, her first petition for post-conviction relief filed
pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-
9546. We affirm.
On August 20, 2010, a jury convicted Appellant of first-degree murder,
stemming from her killing her three and one-half year old stepson. Three
days later, the trial court imposed a life sentence. Following the denial of her
post-sentence motion, Appellant filed a timely appeal to this Court. In an
unpublished memorandum filed on February 23, 2013, we affirmed
Appellant’s judgment of sentence, and on August 21, 2012, our Supreme
Court denied her petition for allowance of appeal. See Commonwealth v.
*Former Justice specially assigned to the Superior Court.
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Perez-Hood, 46 A.3d 876 (Pa. Super. 2012), appeal denied, 50 A.3d 125
(Pa. 2012).
Appellant filed a timely pro se PCRA petition, as well as an amended
petition. The PCRA court appointed counsel. Appointed counsel later filed a
“no-merit” letter and petition to withdraw pursuant to Commonwealth v.
Turner, 544 A.2d 927 (Pa. 1988), and Commonwealth v. Finley, 550
A.2d 213 (Pa. Super. 1988) (en banc). The PCRA court granted PCRA
counsel’s petition to withdraw. The PCRA court also issued notice of its intent
to dismiss Appellant’s petition without a hearing. Appellant did not file a
response. Instead, Appellant filed a premature appeal to this Court, which
was perfected once the PCRA court entered its order denying Appellant’s
PCRA petition.1 See Pa.R.A.P. 905(a)(5) (providing that a notice of appeal
filed after the issuance of a Pa.R.A.P. 907 notice but before the entry of an
appealable order shall be treated as filed after such entry). This timely
appeal follows. Both Appellant and the PCRA court have complied with
Pa.R.A.P. 1925.2
Appellant raises the following issues in her pro se brief:
____________________________________________
1
The Commonwealth filed a notice to quash the appeal based on the
premature filing of the notice of appeal. We deny this motion.
2
In a March 30, 2016 letter to this Court, the PCRA court states that it
adopts PCRA counsel’s Turner/Finley letter for Pa.R.A.P. 1925(a) purposes.
We do not condone this practice. See Commonwealth v. Glover, 738 A.2d
460, 461 (Pa. Super. 1999). Nevertheless, in this instance, we decline to
remand for the preparation of a Rule 1925(a) opinion.
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I[.] Whether the [Commonwealth] failed to meet its burden of
proof, and whether the [Commonwealth] medical doctors whose
testimony was erroneous, deceptive, prejudicial and contributed
to a miscarriage of justice?
II[.] Whether all counsel were constitutionally ineffective?
Appellant’s Brief at i (excess capitalization omitted).
This Court’s standard of review regarding an order dismissing a
petition under the PCRA is whether the determination of the PCRA court is
supported by the evidence of record and is free of legal error. See
Commonwealth v. Halley, 870 A.2d 795, 799 n.2 (Pa. 2005). The PCRA
court’s findings will not be disturbed unless there is no support for the
findings in the certified record. See Commonwealth v. Carr, 768 A.2d
1164, 1166 (Pa. Super. 2001). Moreover, a PCRA court may decline to hold
a hearing on the petition if the PCRA court determines that petitioner’s claim
is patently frivolous and is without a trace of support in either the record or
from other evidence. See Commonwealth v. Jordan, 772 A.2d 1011, 1104
(Pa. Super. 2001).
To be eligible for post-conviction relief, a petitioner must plead and
prove by a preponderance of the evidence that his conviction or sentence
resulted from one or more of the enumerated errors or defects in 42
Pa.C.S.A. § 9543(a)(2), and that the issues she raises have not been,
among others, previously litigated. See Commonwealth v. Carpenter, 725
A.2d 154, 160 (Pa. 1999). An issue has been previously litigated if the
highest appellate court in which the petitioner could have had review as a
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matter of right has ruled on the merits of the issue. See id. See also 42
Pa.C.S.A. § 9544(a).
Appellant attacks the sufficiency of the evidence the Commonwealth
presented to prove its case. We rejected such a challenge in affirming her
judgment of sentence on direct appeal. See Perez-Hood, supra. Thus, a
challenge to the sufficiency of the evidence supporting her murder conviction
has been previously litigated.
In addressing Appellant’s second claim that all prior counsel were
constitutionally ineffective, we apply the following principles. Counsel is
presumed to be effective, and Appellant has the burden of proving
otherwise. See Commonwealth v. Pond, 846 A.2d 699, 708 (Pa. Super.
2004).
In order for Appellant to prevail on a claim of ineffective
assistance of counsel, he must show, by a preponderance of the
evidence, ineffective 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. Commonwealth v. Kimball,
555 Pa. 299, 724 A.2d 326, 333 (1999). Appellant must
demonstrate: (1) the underlying claim is of arguable merit; (2)
that counsel had no reasonable strategic basis for his or her
action or inaction; and (3) but for the errors and omissions of
counsel, there is a reasonable probability that the outcome of
the proceedings would have been different. Id. The petitioner
bears the burden of proving all three prongs of the test.
Commonwealth v. Meadows, 567 Pa. 344, 787 A.2d 312,
319-20 (2001).
Commonwealth v. Johnson, 868 A.2d 1278, 1281 (Pa. Super. 2005). In
assessing a claim of ineffectiveness, when it is clear that appellant has failed
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to meet the prejudice prong, the court may dispose of the claim on that
basis alone, without a determination of whether the first two prongs have
been met. See Commonwealth v. Travaglia, 661 A.2d 352, 357 (Pa.
1995). Counsel cannot be deemed ineffective for failing to pursue a
meritless claim. See Commonwealth v. Loner, 836 A.2d 125, 132 (Pa.
Super. 2003) (en banc).
A PCRA petitioner claiming he or she received the ineffective
assistance of counsel must allege sufficient facts from which a court can
determine counsel’s effectiveness. See Pa.R.Crim.P. 902(A)(12);
Commonwealth v. Pettus, 424 A.2d 1332 (Pa. 1981) (stating that a
defendant may not argue ineffectiveness in vacuum).
Here, Appellant asserts—without further discussion—that “[t]rial and
appellate counsel were (layered) ineffective as there was no rational trial
strategy to not challenge the incompetent testimony of the government’s
witnesses awing the jury with big medical terms to overwhelm the obvious
inability of the witnesses to form a reliable opinion to a medical certainty
based on the scientific bases of the medical profession.” Appellant’s Brief at
9.
Ineffectiveness claims are not self-proving. Because Appellant does
not develop her ineffectiveness claims, we need not discuss them further.
To the extent we read Appellant’s claim to be that prior counsel was
ineffective for failing to object to and/or preserve on appeal her allegations
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regarding the testimony from the Commonwealth’s experts and their
conclusions, we note that the mere fact that Appellant now poses new
theories to attack the sufficiency of the evidence supporting her murder
conviction do not entitle her to relief. See Commonwealth v. Wharton,
811 A.2d 978, 984 (Pa. 2002) (explaining that a PCRA petitioner cannot
obtain additional review of previously litigated claims by presenting new
theories of relief including allegations of ineffectiveness). Moreover, our
review of the record establishes that these claims lack arguable merit. A
review of the record demonstrates that trial counsel not only challenged the
Commonwealth’s experts through effective cross-examination, but also
called a defense expert who disagreed with their conclusions as to when the
fatal injuries were inflicted on the victim. Thus, Appellant’s ineffectiveness
claims fail.
Order affirmed. Motion to quash appeal denied.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/19/2016
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Com. v. Perez-Hood, W.
Combined Opinion