Com. v. Ruth, M. ( 2018 )

J-S17012-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT
OF
PENNSYLVANIA
Appellee
v.
MICHAEL DAVID RUTH,
Appellant No. 411 EDA 2017
Appeal from the PCRA Order Entered January 23, 2017
In the Court of Common Pleas of Montgomery County
Criminal Division at No(s): CP-46-CR-0008965-2011
BEFORE: BENDER, P.J.E., LAZARUS, J., and KUNSELMAN, J.
MEMORANDUM BY BENDER, P.J.E.: FILED MAY 29, 2018
Appellant, Michael David Ruth, appeals from the post-conviction court’s
January 23, 2017 order denying his first petition under the Post Conviction
Relief Act, 42 Pa.C.S. §§ 9541-9546. After careful review, we affirm.
The PCRA court briefly summarized the facts and procedural history of
Appellant’s case, which we need not reproduce herein. See PCRA Court
Opinion (PCO), 3/29/17, at 1-2. On appeal, Appellant presents the following
four claims of ineffective assistance of his trial counsel:
Did the [PCRA] [c]ourt err in denying Appellant’s [p]etition for
[p]ost-[c]onviction [r]elief where it:
a) Found that [t]rial [c]ounsel was not ineffective for failing
to call any [c]haracter [w]itnesses to testify [to]
Appellant’s reputation for truthfulness and honesty
and/or his reputation as a peaceful and law abiding
person?
J-S17012-18
b) Found that [t]rial [c]ounsel was not ineffective for calling
a [d]efense [w]itness who had previously suffered a
conviction for a crimen falsi offense; along with a
conviction for the offense of [p]ossession [w]ith the
[i]ntent to [d]eliver a [c]ontrolled [s]ubstance, a crime
substantially similar to that for which Appellant was being
tried?
c) Found that [t]rial [c]ounsel was not ineffective for calling
a [d]efense [e]xpert [w]itness, who was wholly
unfamiliar with the facts and circumstances of Appellant’s
case, to refute the Commonwealth’s [e]xpert [w]itness?
d) Found that [t]rial [c]ounsel was not ineffective for
allowing [l]ead [t]rial [c]ounsel, Gregory R. Noonan, … to
make the trial strategy decisions for Appellant, at a time
that [Noonan] was abusing controlled substances?
Appellant’s Brief at 5.
First, “[t]his Court’s standard of review from the grant or denial of post-
conviction relief is limited to examining whether the lower court’s
determination is supported by the evidence of record and whether it is free of
legal error.” Commonwealth v. Morales, 701 A.2d 516, 520 (Pa. 1997)
(citing Commonwealth v. Travaglia, 661 A.2d 352, 356 n.4 (Pa. 1995)).
Where, as here, a petitioner claims that he received ineffective assistance of
counsel, our Supreme Court has directed that the following standards apply:
[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 truth-
determining process that no reliable adjudication of guilt or
innocence could have taken place.” 42 Pa.C.S. § 9543(a)(2)(ii).
“Counsel is presumed effective, and to rebut that presumption,
the PCRA petitioner must demonstrate that counsel’s performance
was deficient and that such deficiency prejudiced him.”
[Commonwealth v.] Colavita, 606 Pa. [1,] 21, 993 A.2d [874,]
886 [(Pa. 2010)] (citing Strickland[ v. Washington, 104 S.Ct.
-2-
J-S17012-18
2053 (1984)]). In Pennsylvania, we have refined the Strickland
performance and prejudice test into a three-part inquiry. See
[Commonwealth v.] Pierce, [515 Pa. 153, 527 A.2d 973 (Pa.
1987)]. Thus, to prove counsel ineffective, the petitioner must
show that: (1) his underlying claim is of arguable merit; (2)
counsel had no reasonable basis for his action or inaction; and (3)
the petitioner suffered actual prejudice as a result.
Commonwealth v. Ali, 608 Pa. 71, 86, 10 A.3d 282, 291 (2010).
“If a petitioner fails to prove any of these prongs, his claim fails.”
Commonwealth v. Simpson, [620] Pa. [60, 73], 66 A.3d 253,
260 (2013) (citation omitted). Generally, counsel’s assistance is
deemed constitutionally effective if he chose a particular course of
conduct that had some reasonable basis designed to effectuate his
client’s interests. See Ali, supra. Where matters of strategy and
tactics are concerned, “[a] finding that a chosen strategy lacked
a reasonable basis is not warranted unless it can be concluded
that an alternative not chosen offered a potential for success
substantially greater than the course actually pursued.” Colavita,
606 Pa. at 21, 993 A.2d at 887 (quotation and quotation marks
omitted). To demonstrate prejudice, the petitioner must show
that “there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceedings would have
been different.” Commonwealth v. King, 618 Pa. 405, 57 A.3d
607, 613 (2012) (quotation, quotation marks, and citation
omitted). “‘[A] reasonable probability is a probability that is
sufficient to undermine confidence in the outcome of the
proceeding.’” Ali, 608 Pa. at 86–87, 10 A.3d at 291 (quoting
Commonwealth v. Collins, 598 Pa. 397, 957 A.2d 237, 244
(2008) (citing Strickland, 466 U.S. at 694, 104 S.Ct. 2052)).
Commonwealth v. Spotz, 84 A.3d 294, 311-12 (Pa. 2014).
In assessing the merits of Appellant’s above-stated ineffectiveness
claims, we have examined the certified record, the briefs of the parties, and
the applicable law. Additionally, we have reviewed the thorough and well-
crafted opinion of the Honorable Gary S. Silow of the Court of Common Pleas
of Montgomery County. We conclude that Judge Silow’s extensive, well-
reasoned opinion accurately disposes of the issues presented by Appellant,
and we discern no error in Judge Silow’s decision to reject Appellant’s
-3-
J-S17012-18
ineffectiveness claims.1 See PCO at 2-11. Accordingly, we adopt Judge
Silow’s opinion as our own and affirm the order denying Appellant’s PCRA
petition on the grounds set forth therein.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/29/18
____________________________________________
1 This is especially true where Appellant fails to present any meaningful
discussion of the prejudice he suffered from counsel’s alleged ineffectiveness.
For instance, in Appellant’s first issue, his entire prejudice argument consists
of the following:
Finally, it is clear that Appellant suffered prejudice, as a
result of Attorney [Vincent A.] Cirillo’s error, in failing to call any
[c]haracter [w]itnesses on Appellant’s behalf[,] as there was at
least a reasonable probability of a different outcome at trial, had
the jury been instructed on the weight and effect to be given
character evidence, pursuant to Pa. SSJI (Crim)3.06.
Appellant’s Brief at 21. Appellant reiterates similar, boilerplate prejudice
arguments for each of his other three issues. See id. at 24, 27, 32-33.
-4-