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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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. :
:
CHRISTOPHER K. CATER, :
:
Appellant : No. 2518 EDA 2015
Appeal from the PCRA Order July 21, 2015,
in the Court of Common Pleas of Philadelphia County,
Criminal Division, at No: CP-51-CR-0016587-2008
BEFORE: FORD ELLIOTT, P.J.E., STABILE, and STRASSBURGER,* JJ.
MEMORANDUM BY STRASSBURGER, J.: FILED AUGUST 24, 2016
Christopher K. Cater (Appellant) appeals from the order which
dismissed his petition filed pursuant to the Post Conviction Relief Act (PCRA),
42 Pa.C.S. §§ 9541-9546. We affirm.
A prior panel of this Court set forth the background underlying this
matter as follows.
In the early afternoon of October 27, 2008, brothers
Antonio and Mark Mention, along with their uncle Anthony and
friend Adolphus, were standing in vacant lot on the 2900 block of
Edgley Street in Philadelphia, watching Adolphus work on his
van. While engaged in conversation, Antonio noticed Appellant
and another man driving on to Edgley Street and then back out
due to a street closure. Soon thereafter, Antonio saw Appellant
walk towards the men, carrying a bag. As Appellant
approached, he pulled a sawed-off rifle out of the bag, pointed it
at the men, and began demanding money from Antonio, Anthony
and Mark. When Mark told Appellant that he had no money,
Appellant shot him. After the shooting Adolphus ran into the
house to contact the police. Mark then turned and ran to a
friend’s house. He was subsequently transported to the hospital
*Retired Senior Judge assigned to the Superior Court.
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for treatment of a gunshot wound to his arm and stomach.
Anthony and Antonio grabbed the rifle from Appellant, began
beating him with it and held Appellant until the police arrived.
Following a bench trial, the court found Appellant guilty of three
counts each of aggravated assault and robbery, one count of
possessing an instrument of crime, and one count of carrying a
firearm without a license. On June 4, 2010, the trial court
imposed an aggregate sentence of seven and one-half to fifteen
years’ incarceration.
Commonwealth v. Cater, 37 A.3d 1241 (Pa. Super. 2011) (unpublished
memorandum at 1-2). This Court affirmed Appellant’s judgment of sentence
on October 24, 2011. Id.
On January 13, 2012, Appellant pro se filed a PCRA petition. Counsel
was appointed and, for reasons not apparent from the record, different
counsel entered an appearance on May 30, 2014. On August 26, 2014, an
amended petition was filed. The Commonwealth filed a motion to dismiss,
and the PCRA court issued notice of its intent to dismiss the petition without
a hearing pursuant to Pa.R.Crim.P. 907. On July 21, 2015, the PCRA court
dismissed the petition. This appeal followed.
On appeal, Appellant raises one issue for our consideration: “Where a
petitioner in a PCRA petition raises substantial issues of material fact should
the court grant discovery and an evidentiary hearing?” Appellant’s Brief at
8.
“This Court’s standard of review regarding an order dismissing a PCRA
petition is whether the determination of the PCRA court is supported by
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evidence of record and is free of legal error.” Commonwealth v. Brandon,
51 A.3d 231, 233 (Pa. Super. 2012).
Appellant contends that the PCRA court improperly denied him an
evidentiary hearing and discovery on the claim that his counsel was
ineffective for failing to have the firearm used during the incident in question
tested for fingerprint evidence. Appellant’s Brief at 14. Appellant also
argues that the PCRA court should have granted him a hearing on his claim
that his counsel was ineffective for failing to question Mark Mention about his
providing a false name and address to hospital personnel in order to attack
his credibility. Id. at 15.
“A PCRA petitioner is not entitled to an evidentiary hearing as a matter
of right, but only where the petition presents genuine issues of material fact.
A PCRA court’s decision denying a claim without a hearing may only be
reversed upon a finding of an abuse of discretion.” Commonwealth v.
Walker, 36 A.3d 1, 17 (Pa. 2011) (citations omitted).
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. Wah, 42 A.3d 335, 338 (Pa. Super. 2012) (citations
omitted).
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With respect to discovery under the PCRA, Pa.R.Crim.P. 902 provides,
in relevant part, that “[e]xcept as provided in paragraph (E)(2) [relating to a
first, counseled petition in a death penalty case], no discovery shall be
permitted at any stage of the proceedings, except upon leave of court after a
showing of exceptional circumstances.” Pa.R .Crim.P. 902(E)(1). “The PCRA
and the criminal rules do not define the term ‘exceptional circumstances.’”
Commonwealth v. Frey, 41 A.3d 605, 611 (Pa. Super. 2012). “Rather, it
is for the trial court, in its discretion, to determine whether a case is
exceptional and discovery is therefore warranted.” Id. (citation omitted).
“The denial of a request for post-conviction discovery is reviewed for an
abuse of discretion. Commonwealth v. Edmiston, 65 A.3d 339, 353 (Pa.
2013) (citation omitted). Mere speculation that exculpatory materials may
exist does not constitute a showing of exceptional circumstances. See
Commonwealth v. Dickerson, 900 A.2d 407, 412 (Pa. Super. 2006).
Moreover, “[d]iscovery in PCRA proceedings cannot be used as an excuse for
engaging in a ‘fishing expedition.’” Edmiston, 65 A.3d at 353 (citation
omitted).
Because Appellant’s claims pertain to the alleged ineffective assistance
of his counsel, we further observe that
a PCRA petitioner will be granted relief only when he proves, by
a preponderance of the evidence, that his conviction or sentence
resulted from the [i]neffective assistance of counsel which, in the
circumstances of the particular case, so undermined the
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truth-determining process that no reliable adjudication of guilt or
innocence could have taken place. …
It is well-established 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.
The PCRA court may deny an ineffectiveness claim if the
petitioner’s evidence fails to meet a single one of these prongs.
Moreover, a PCRA petitioner bears the burden of demonstrating
counsel’s ineffectiveness.
Commonwealth v. Franklin, 990 A.2d 795, 797 (Pa. Super. 2010)
(internal quotation marks and citations omitted).
To satisfy the prejudice prong, it must be demonstrated that,
absent counsel’s conduct, there is a reasonable probability that
the outcome of the proceedings would have been different. If it
has not been 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 decide whether the first and second prongs have been met.
Commonwealth v. Perez, 103 A.3d 344, 348 (Pa. Super. 2014) (citation
omitted).
Regarding counsel’s failure to have the firearm tested for fingerprints,
Appellant argues that he informed his counsel “that he never possessed the
firearm and that its testing for fingerprint evidence would have produced
evidence that would have exonerated him.” Appellant’s Brief at 14.
Appellant argues that this constituted ineffective assistance of counsel
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“which could only have been proven by the holding of an evidentiary hearing
and permitting discovery,” as he needs to ascertain whether the firearm “is
still in the possession of the Commonwealth and whether testing would
demonstrate that said evidence could have changed the outcome of the
trial.” Id.
Appellant’s bald claim that the fingerprint evidence would have
exonerated him amounts to nothing more than mere speculation as to the
prejudice Appellant allegedly suffered and, thus, it is insufficient to meet his
burden under the ineffectiveness test. See Commonwealth v.
Charleston, 94 A.3d 1012, 1026 (Pa. Super. 2014) (“Unsupported
speculation does not establish reasonable probability.”); Commonwealth v.
Pursell, 724 A.2d 293, 311 (Pa. 1999) (“Claims of ineffective assistance of
counsel that are based on speculation and conjecture do not adequately
establish the degree of prejudice necessary.”). Moreover, we fail to see how
he was prejudiced given that such evidence is not exculpatory per se. See
Commonwealth v. Wright, 388 A.2d 1084, 1086 (Pa. Super. 1978)
(“[T]he absence of appellant’s fingerprints is not exculpatory per se and
might be explained [by] any one of many reasons consistent with his
guilt.”). See also Commonwealth v. Heilman, 867 A.2d 542, 547 (Pa.
Super. 2005) (“In DNA as in other areas, an absence of evidence is not
evidence of absence.”). For these reasons, his ineffectiveness claim fails
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and, consequently, the PCRA court did not abuse its discretion in denying
Appellant a hearing on this claim.
As for Appellant’s discovery request, it is clear that Appellant is
attempting merely to engage in a fishing expedition for potentially
exculpatory evidence. Thus, the PCRA court did not abuse its discretion in
denying Appellant’s request.
With respect to counsel’s failure to attack Mark Mention’s credibility
through cross-examination about his providing a false name and address to
hospital personnel, Appellant’s argument is as follows.
[T]he testimony of the two complaining witnesses were the only
evidence against … Appellant. If one of those two witnesses lied
about basic information such as his name and address when he
was taken to the hospital his credibility could have been called
into question. There is no downside to confronting the witness
on the issue. Proper cross[-]examination could have made a
difference in the outcome of the trial. The failure of counsel to
question him about that constitutes ineffective assistance of
counsel.
Appellant’s Brief at 15.
In addressing this claim, the PCRA court explained that “[d]uring the
sentencing hearing the Commonwealth advised … that Mark Mention gave
his mother’s surname and address to hospital personnel.[1] Clearly, the fact
1
The Commonwealth explained this information prior to sentencing during
argument on Appellant’s motion for a new trial. N.T., 6/4/2010/, at 9-10
(“[T]he medical records were stipulated to. … They clearly show that his
mother’s name is Michelle Mitchell. So that may be something as to why he
had given the name Mark Mitchell and a different address, which was, I
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that he did so is not so earth shattering such that the presentation of this
information at trial would have resulted in a different verdict given the
overwhelming evidence of guilt presented at trial.” PCRA Court Opinion,
12/18/2015, at 6-7 (citation omitted). In light of this conclusion and
Appellant’s unsupported arguments that Mark Mention’s “credibility could
have been called into question” and that the line of questioning “could have
made a difference in the outcome of the trial,” Appellant has failed to
convince us that there is a reasonable probability that the outcome of his
trial would have been different had that line of questioning been pursued.
Commonwealth v. Feliciano, 69 A.3d 1270, 1275 (Pa. Super. 2013) (“It is
an appellant’s burden to persuade this Court that the PCRA court erred and
that relief is due.”) (citation omitted). Indeed, Appellant has not even
alleged that such information would be impeaching, as there are a number
of reasons that could explain why Mark Mention provided his Mother’s
surname and address to the hospital (including that she was his emergency
contact). Thus, this ineffectiveness claim fails, and the PCRA court did not
believe, his mother’s address. At the time she was listed as an emergency
contact.”). Appellant does not dispute that the surname and address Mark
Mention provided were that of his mother.
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abuse its discretion in denying Appellant an evidentiary hearing on this
claim.2
Appellant has failed to establish that he is entitled to relief.
Accordingly, we affirm the order of the PCRA court.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/24/2016
2
Appellant argues that whether counsel had a reasonable basis for his
“fail[ure] to litigate the issues raised in the PCRA petition is a material issue
of fact” and that “[t]he only way to make such a determination would have
been for the court to have held an evidentiary hearing.” Appellant’s Brief at
13. Appellant further argues that because the court declined to hold a
hearing and “made no inquiry into the issue,” its decision was improper. Id.
Because Appellant is not entitled to a hearing as of right and “[t]he PCRA
court may deny an ineffectiveness claim if the petitioner’s evidence fails to
meet a single one of the[ ineffectiveness] prongs,” Franklin, 990 A.2d at
797, Appellant’s claim is meritless.
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Com. v. Cater, C.
Combined Opinion