Com. v. Concordia, B. ( 2018 )

J-S60019-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
BRAD M. CONCORDIA :
:
Appellant : No. 781 MDA 2018
Appeal from the PCRA Order April 12, 2018
In the Court of Common Pleas of Berks County Criminal Division at
No(s): CP-06-CR-0000037-2016
BEFORE: SHOGAN, J., NICHOLS, J., and STRASSBURGER, J.*
MEMORANDUM BY NICHOLS, J.: FILED DECEMBER 19, 2018
Appellant Brad M. Concordia appeals from the order denying his first
timely petition filed under the Post Conviction Relief Act (PCRA), 42 Pa.C.S.
§§ 9541-9546. Appellant claims that the PCRA court erred in rejecting his
claims based on the ineffective assistance of counsel. We affirm.
This Court summarized the history of this case in a previous
memorandum.
The facts underlying [Appellant]’s conviction are well-known to
the parties and we need not recite them herein. In summary, the
trial court found [Appellant] took a deposit for construction work
from a customer [(the complainant)], but did not intend to
complete the work or return the deposit. Following a waiver trial
on December 14, 2016, the court found [Appellant] guilty of
[home improvement fraud, theft by deception, and receiving
stolen property.1] On December 27, 2016, the trial court
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
1 At trial, Anthony Rearden, Esq. (trial counsel), represented Appellant.
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sentenced [Appellant] to a term of three to 23 months’
imprisonment for home improvement fraud, followed by a
consecutive five years’ probation. . . .
On January 24, 2017, [Appellant] represented by new counsel,
filed a petition for leave to file post-sentence motions nunc pro
tunc, as well as a motion for modification of sentence. On January
25, 2017, the court granted [Appellant] permission to file his post-
sentence motion nunc pro tunc, but denied the motion for
modification.
Commonwealth v. Concordia, 177 MDA 2017, at 2-3 (Pa. Super. filed Sept.
27, 2017) (unpublished mem.) (footnotes omitted). Appellant filed a timely
direct appeal, which this Court affirmed on September 27, 2017. Appellant
did not petition for allowance of appeal to the Pennsylvania Supreme Court.
On November 21, 2017, Appellant filed a timely first counseled PCRA
petition, claiming ineffective assistance of trial counsel. The trial court held
an evidentiary hearing on February 1, 2018. On April 12, 2018, the PCRA
court denied Appellant’s PCRA petition, concluding that Appellant’s
ineffectiveness claims were meritless. See PCRA Ct. Order, 4/12/18, at 4.
On May 10, 2018, Appellant timely appealed. Appellant filed a court-
ordered Pa.R.A.P. 1925(b) statement. The PCRA court filed a memorandum
opinion relying on the reasoning it set forth in its order dismissing Appellant’s
PCRA petition.
Appellant raises the following issue on appeal: “Whether the Appellant
presented sufficient evidence to warrant post-conviction relief based upon
ineffective trial counsel[.]” Appellant’s Brief at 4 (some capitalization
omitted).
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Our standard of review from the denial of a PCRA petition “is limited to
examining whether the PCRA court’s determination is supported by the
evidence of record and whether it is free of legal error.” Commonwealth v.
Ousley, 21 A.3d 1238, 1242 (Pa. Super. 2011) (citation omitted). “The PCRA
court’s credibility determinations, when supported by the record, are binding
on this Court; however, we apply a de novo standard of review to the PCRA
court’s legal conclusions.” Commonwealth v. Mitchell, 105 A.3d 1257,
1265 (Pa. 2014) (internal quotation marks and citation omitted). “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) (citation
omitted).
It is well-settled that to establish a claim of ineffective assistance of
counsel, a defendant “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. Turetsky, 925 A.2d 876, 880 (Pa. Super. 2007) (citation omitted). The
burden is on the defendant to prove all three of the following prongs: “(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. (citation omitted); see also
Commonwealth v. Daniels, 963 A.2d 409, 419 (Pa. 2009) (“A failure to
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satisfy any prong of the ineffectiveness test requires rejection of the claim of
ineffectiveness.” (citation omitted)).
Our Supreme Court has explained that in analyzing whether trial counsel
had reasonable basis “we do not question whether there were other more
logical courses of action which counsel could have pursued; rather, we must
examine whether counsel’s decisions had any reasonable basis.”
Commonwealth v. Brown, --- A.3d ----, 2018 WL 5046812, *22 (Pa. 2018)
(internal quotation marks and citation omitted). Further, “[w]e will hold that
counsel’s strategy lacked a reasonable basis only if the petitioner proves that
a foregone alternative ‘offered a potential for success substantially greater
than the course actually pursued.’” Id. (citation omitted).
Regarding prejudice, the Court has stated that it “means demonstrating
that there is a reasonable probability that, but for counsel’s error, the outcome
of the proceeding would have been different. Counsel is presumed to have
been effective and the burden of rebutting that presumption rests with the
petitioner.” Commonwealth v. Fletcher, 986 A.2d 759, 772 (Pa. 2009)
(citations and internal quotation marks omitted). We add that “boilerplate
allegations and bald assertions of no reasonable basis and/or ensuing
prejudice cannot satisfy a petitioner’s burden to prove that counsel was
ineffective.” Commonwealth v. Chmiel, 30 A.3d 1111, 1128 (Pa. 2011)
(citation omitted).
In Appellant’s sole issue he raises two claims of trial counsel
ineffectiveness: (1) failure to prepare for trial and (2) failure to present
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Appellant with an Accelerated Rehabilitative Disposition (ARD) offer.
Appellant’s Brief at 13-14.
Ineffectiveness for Failure to Prepare for Trial
Appellant claims that trial counsel failed to prepare for trial for several
reasons: trial counsel (a) failed to investigate character witnesses; (b) failed
to prepare witnesses, including Appellant; (c) failed to investigate Appellant’s
claim that Appellant could not perform the contract due to medical issues; and
(d) failed to advise Appellant of the risks of proceeding to trial. Id. at 13-14,
16.
Character Witnesses
Appellant first claims that trial counsel did not investigate Appellant’s
request for character witnesses. Id. at 13. It is well-established that “failure
to call character witnesses does not constitute per se ineffectiveness.”
Commonwealth v. Treiber, 121 A.3d 435, 463 (Pa. 2015) (citation
omitted). A defendant bears the burden of proving that
(1) the witness existed; (2) the witness was available to testify
for the defense; (3) counsel knew of, or should have known of,
the existence of the witness; (4) the witness was willing to testify
for the defense; and (5) the absence of the testimony of the
witness was so prejudicial as to have denied the defendant a fair
trial.
Id. at 464 (citation omitted).
Instantly, Appellant has not identified a character witness that he would
have called to testify as to Appellant’s character at trial. Further, at the
evidentiary hearing, Appellant did not present the testimony of a character
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witness that was available and willing to testify. See generally N.T. PCRA
Hr’g, 2/1/18. Accordingly, because Appellant has not met his burden of proof,
we agree with the PCRA court’s conclusion that trial counsel was not
ineffective. See Treiber, 121 A.3d at 463-64.
Preparation of Witnesses
Appellant next claims that trial counsel was ineffective for failing to
“prepare[] any witnesses, including Appellant, for trial.” Appellant’s Brief at
13. This statement constitutes the totality of Appellant’s argument as to this
issue. Pennsylvania courts have long held that bald assertions of
ineffectiveness are insufficient to meet the ineffectiveness test. See Chmiel,
30 A.3d at 1128 (Pa. 2011); see also Commonwealth v. Natividad, 938
A.2d 310, 322 (Pa. 2007) (“A PCRA petitioner must exhibit a concerted effort
to develop his ineffectiveness claim and may not rely on boilerplate allegations
of ineffectiveness.” (citation omitted)). Moreover, “undeveloped argument[s],
which fail[] to meaningfully discuss and apply the standard governing the
review of ineffectiveness claims, simply do[] not satisfy [an a]ppellant’s
burden of establishing that he is entitled to any relief.” Commonwealth v.
Bracey, 795 A.2d 935, 940 n.4 (Pa. 2001).
Here, Appellant’s bald assertion that trial counsel failed to prepare
witnesses is insufficient to meet Appellant’s burden of proving ineffectiveness.
See Chmiel, 30 A.3d at 1128; Natividad, 938 A.2d at 322; Bracey, 795
A.2d at 940 n.4. Accordingly, we agree with the trial court’s determination
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that trial counsel was not ineffective in this regard. See Turetsky, 925 A.2d
at 880.
Defense at Trial
Next, Appellant claims that he testified at trial that he could not perform
the contract due to medical issues. Appellant’s Brief at 13. Appellant contends
that it was “medical issues, not the intent to defraud, [that led] to Appellant’s
failure to comply with the contract.” Id. Appellant argues that trial counsel
was ineffective for failing to investigate or corroborate Appellant’s defense.
Id.By way of background, during trial, the following relevant exchange
occurred:
[Trial counsel:] Is there a reason why you -- what prevented you
from starting th[e project]?
[Appellant:] Reasons were, number one, this six-to-eight-week
period was at that time, you know, the approximate starting time
of when we thought we would be able to get to ‘em. Then I started
getting medical problems, medical issues, which I have doctors’
notes and plenty of notifications of that at that time that prevented
me from driving a vehicle and/or working with power tools or
ladders.
***
[Trial counsel:] Yeah, Your Honor. I would like to have this
marked as defense Exhibit 1.
***
[Trial counsel:] [Appellant], I’m going to show you what has been
marked as defense Exhibit No. 1. Can you identify what this is?
[Appellant:] Medical records from previous months of during that
period of time and previous -- and actually current. There is --
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[Trial counsel:] Are those your medical records?
[Appellant:] Yes.
[Trial counsel:] Okay.
[Appellant:] There is also a doctor’s note that was dated back a
month after this contract was signed that showed that I wasn’t
supposed to be driving or working. That’s with the paperwork
also.
[Trial counsel:] Now, did you have any discussion about these
particular health issues that you were having with the
[complainants]?
[Appellant:] I did mention once or twice that I was having some
medical problems. As they stated in their comments up here, they
stated I was going through some medical problems and my father
was at the same time, which didn’t allow me to proceed with my
job as well as I usually do. And at that time, I thought I was
actually having seizures or brain tumors or something like that,
which really had me depressed into a funk. That wasn’t really how
I operate. Usually I’m very on top of things and calling people
back right away. And it really was in my mind that I was in trouble
medically.
[Trial counsel:] But did you explain that in that kind of detail with
the [complainants]?
[Appellant:] No. At that point, I didn’t know what was going on.
I was just worried and scared. But at the same time, the
[complainants] were contacted several times and -- and in that
sense of returning phone calls.
N.T. Trial, 12/14/16, at 54-56. In sum, trial counsel questioned Appellant as
to what prevented him from performing the contract, examined Appellant
regarding his claims of medical issues, and admitted into evidence medical
records in support of Appellant’s defense. See id. at 54-56, 71-76.
Here, Appellant has not explained what additional investigation trial
counsel should have performed or what different course of action he should
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have taken in addressing Appellant’s defense. See Brown, --- A.3d ----, 2018
WL 5046812, at *22. Accordingly, we agree with the trial court’s
determination that trial counsel was not ineffective as to this claim. See
Turetsky, 925 A.2d at 880.
Risks of Jury Trial
Appellant further claims that trial counsel never advised Appellant of the
risks of proceeding to trial. Appellant’s Brief at 16. Appellant argues that he
was not advised of the charges against him, the Sentencing Guidelines or the
possible maximum sentence, or that some of Appellant’s prior clients would
be testifying against him. Id. at 17. Therefore, Appellant maintains, “he was
unable to make informed decisions regarding pleas and lacked the ability to
know the risk he was taking by proceeding to trial.” Id. at 16.
The evidence of record belies Appellant’s claims. On November 4, 2016,
Appellant signed a written jury trial waiver colloquy. In relevant part,
Appellant answered “Yes” to the following questions:
21. Do you understand that you also have the right to choose
whether you want to be tried by a jury or by a [j]udge sitting
without a jury?
22. Do you understand that if you choose to have a jury trial, the
[j]udge will send for a panel of thirty or forty prospective jurors
all drawn at random by the County from a Statewide Jury
information system, which consists of a list of individuals from the
Department of Transportation and may also contain a list of names
from the County voter registration list or any other list in which in
the opinion of the jury selection commission will provide a number
of names of prospective jurors which is equal or greater than the
number of names contained in the voter registration list?
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23. Do you understand that the prospective jurors will come down
to the courtroom and that you, your attorney, the District
Attorney, and the [j]udge will then proceed to pick a jury of twelve
people from this group of thirty or forty prospective jurors?
24. Do you understand that you have an absolute right to
personally participate in selecting a jury?
***
34. Do you understand that the jurors will listen to evidence in
the case and then they will go in a separate room all by
themselves, discuss the case, and then vote on whether to find
you guilty or not guilty?
35. Do you understand that, if you are tried by a jury, you cannot
be convicted unless all twelve jurors are convinced beyond a
reasonable doubt that you are guilty? This is because a jury
verdict is required by law to be unanimous which means that all
twelve jurors must agree on the verdict, thus if all twelve vote
“guilty,” the verdict is ”guilty” and if all twelve vote “not guilty”
the verdict is “not guilty.”
***
37. Do you understand that instead of a jury trial you can choose
to be tried by a [j]udge sitting without a jury in which case you
will have all the same rights you would have with a jury trial
except that the [j]udge sitting alone will decide whether or not
you are guilty? . . .
Jury Trial Waiver Colloquy, 11/4/16, at 3-4. Further, the written jury trial
waiver colloquy also included the offenses Appellant was charged with,
whether it was a felony or a misdemeanor, and the possible maximum
sentences and fines, which Appellant acknowledged that he understood. Id.
at 5.
Also on November 4, 2016, the trial court conducted an oral colloquy
where Appellant waived his right to a jury trial. See generally N.T. Colloquy,
11/24/16. During that colloquy, Appellant acknowledged that he
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“reviewed[ed] each and every one of the 39 paragraphs” in the written waiver-
of-jury-trial colloquy and that he understood everything contained therein.
Id. at 3. At the conclusion of the colloquy, the trial court found that
Appellant’s waiver of his right to a jury trial was knowing, voluntary, and
intelligent. Id. at 5.
Regarding the witnesses the Commonwealth intended to call at trial,
trial counsel testified at the PCRA hearing as follows:
[Commonwealth:] Do you recall if the Commonwealth gave you
notice that they were going to be presenting additional witnesses
for [Pa.R.E.] 404(b) evidence prior to trial?
[Trial counsel:] Yes, they did.
***
[Commonwealth:] [Trial counsel, I’m] showing you what’s been
marked as Commonwealth’s exhibit number 2. Do you recognize
that document?
[Trial counsel:] Yes. This was a letter from [the Commonwealth]
in regard to, you know, what we had discussed in regard to
[Appellant]’s case as far as a plea bargain or, you know, some
other resolution.
[Commonwealth:] And is there information in that letter that
indicates that the Commonwealth intended to present additional
witnesses pursuant to Rule 404(b)?
[Trial counsel:] Yes. There are a number of people listed here.[2]
____________________________________________
2 The Commonwealth’s letter provided, in relevant part:
Please be advised that pursuant to Pennsylvania Rules of
Evidence, 404(b) pertaining to the introduction of evidence at trial
of other crimes, wrongs or acts, the Commonwealth may
introduce testimony from its witnesses, including Grace May
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[Commonwealth:] Did you have an opportunity to discuss that
potential 404(b) evidence or those witnesses with [Appellant]?
[Trial counsel:] I did discuss that with [Appellant] and, you know,
that was a significant factor for me to, again, continue to urge him
to take the plea of 2 years[’] probation, however, at the last
moment he decided not to.
[Commonwealth:] So in spite of your advice to take the plea, it
was [Appellant]’s decision to go to trial in this case?
[Trial counsel:] Yes, it was.
N.T. PCRA Hr’g, 2/1/18, at 19-20.
In its order, following the hearing, the PCRA court found that Appellant
and trial counsel had discussed the differences between a bench trial and a
jury trial, that Appellant had been charged with a felony, and that Appellant’s
prior customers could be called by the Commonwealth to present evidence of
prior dealings. PCRA Ct. Order, 4/12/18, at 2. The PCRA court added that
“[h]aving the opportunity to observe [Appellant], we find that his statements
made to the contrary were palpably false.” Id.
____________________________________________
Craze, Christopher Lincoln, and Ruth Marrero, concerning the prior
instance of fraudulent practice by [Appellant]. All three of the
aforementioned witnesses had contracted with [Appellant] to
perform home improvement at their respective properties . . . .
[Appellant] failed to perform the work as contracted and was
subsequently charged by the West Reading Police for theft and
home improvement fraud and related offenses for his failure to
complete the work. [Appellant] only returned the funds paid by
each victim upon the filing of charges[,] which were later
dismissed pursuant to an agreement with the District Attorney’s
office.
N.T. PCRA Hr’g, 2/1/18, at 28.
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Accordingly, we conclude the PCRA court’s conclusions are supported by
the record and there is no merit to Appellant’s claims of ineffectiveness in this
regard. See Mitchell, 105 A.3d at 1265; Turetsky, 925 A.2d at 880.
Ineffectiveness for Failure to Communicate ARD Offer
Finally, Appellant argues that trial counsel did not present him with an
ARD offer. Appellant’s Brief at 14. Appellant claims he has been prejudiced
because had he been notified of the ARD offer and what the program involved,
he would have accepted that offer. Id. at 15.
By way of further background, during the PCRA hearing the following
relevant exchange occurred:
[PCRA counsel:] During the course of the time the case was being
litigated there were plea offers that were made back and forth
between and discussions held about nontrial disposition. At any
time did [trial counsel] discuss with you the ARD program?
[Appellant:] He had discussed that it was offered.
[PCRA counsel:] So [trial counsel] informed you that it was
offered. Did he explain to you the benefits of the ARD programs?
[Appellant:] No.
***
[Commonwealth:] Yes. Okay. So you knew about before going
to trial you could have taken an ARD offer instead of going to trial
in this case?
[Appellant:] I knew there was an offer, yes.
N.T. PCRA Hr’g, 2/1/18, at 10-11. Moreover, trial counsel testified that
although he didn’t have the files of the case, “I would have thought, you know,
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I would have discussed that with [Appellant] and would have suggested that
[Appellant] accept that[.]” Id. at 18.
The PCRA court concluded that Appellant and trial counsel “discussed
that[] the Commonwealth made an offer of ARD.” PCRA Ct. Order, 4/12/18,
at 2. The PCRA court added that it observed Appellant testify at the PCRA
hearing and found his testimony to be incredible. Id.
Accordingly, we conclude that the record belies Appellant’s claim that
trial counsel did not communicate an ARD offer to Appellant. Therefore, we
hold that the trial court did not err in its determination that trial counsel was
not ineffective. See Mitchell, 105 A.3d at 1265; Turetsky, 925 A.2d at 880.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/19/2018
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