Com. v. Davis, J. ( 2019 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
JARVAY M. DAVIS
Appellant No. 1230 EDA 2018
Appeal from the PCRA Order entered April 17, 2018
In the Court of Common Pleas of Philadelphia County
Criminal Division at No: CP-51-CR-0008720-2009
BEFORE: LAZARUS, J., STABILE, J., and McLAUGHLIN, J.
MEMORANDUM BY STABILE, J.: FILED FEBRUARY 14, 2019
Appellant, Jarvay M. Davis, appeals from the April 17, 2018 order of the
Court of Common Pleas of Philadelphia County denying his petition for
collateral relief under the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A.
§§ 9541-46. Appellant argues that the PCRA court erred in not holding an
evidentiary hearing on his claim of ineffective assistance of counsel. We
disagree. Accordingly, we affirm.
The underlying facts and procedural history are uncontested. Briefly,
on July 19, 2012, Appellant pled guilty to attempted burglary, conspiracy to
commit burglary, and possession of an instrument of crime.1 The trial court
imposed three sentences of one to five years of incarceration, two of which
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1 18 Pa.C.S.A. §§ 901, 3502, 903, and 907, respectively.
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ran concurrently with another sentence Appellant was serving, and one of
which ran consecutively. Appellant did not file a direct appeal.
Appellant filed the underlying PCRA petition, his first, on May 30, 2013.
The PCRA court appointed counsel on February 18, 2014, and counsel filed an
amended petition on August 10, 2014. “The claim presented [in the amended
petition] was stated the same as is stated in the [Pa.R.A.P. 1925(b)]
statement [i.e., plea counsel was ineffective for divulging confidential
information to prosecutor,] followed by a request for an evidentiary hearing
in order to determine what information was relayed to the prosecution and
how it affected the sentence.” PCRA Court Opinion, 6/13/18, at 3 (quotation
marks omitted).2
After issuing a notice to dismiss, the PCRA court, on March 21, 2016,
denied the petition as untimely. On appeal, we disagreed with the PCRA
court’s finding of untimeliness, and remanded to the PCRA court to address
the merits of the petition. See Commonwealth v. Davis, No. 1036 EDA
2016, unpublished memorandum (Pa. Super. March 13, 2017).
After remand, on April 17, 2017, the PCRA court denied Appellant’s
PCRA petition. This appeal followed.
On appeal, Appellant argues that the PCRA court erred in not holding a
hearing on his PCRA petition in which he alleged ineffective assistance of plea
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2 “The amended petition did not include the identification of any evidence in
support of the claim, other than [a] single citation to the plea/sentencing
hearing notes. PCRA Court Opinion, 6/13/18, at 3. Elsewhere, the PCRA court
characterizes the citation to the sentencing transcript as “cryptic.” Id.
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counsel. Specifically, as noted, Appellant claims that plea counsel was
ineffective for sharing with the prosecutor confidential information Appellant
related to plea counsel. For the reasons stated below, we conclude that
Appellant is entitled to no relief.
On review, we must determine whether the record supports the PCRA
court’s findings and whether the court’s ruling is free of legal error.
Commonwealth v. Edmiston, 65 A.3d 339, 345 (Pa. 2013), cert. denied,
571 U.S. 1026 (2013).
Regarding the ineffective assistance of counsel claim, we note that “[i]t
is well-established that counsel is presumed effective and a PCRA petitioner
bears the burden of proving ineffectiveness.” Commonwealth v. Reyes-
Rodriguez, 111 A3d 775, 779-80 (Pa. Super. 2015) (en banc) (citations and
brackets omitted).
To prevail on an [ineffective assistance of counsel] claim, a PCRA
petitioner must plead and prove by a preponderance of the
evidence that (1) the underlying legal claim has arguable merit;
(2) counsel had no reasonable basis for acting or failing to act;
and (3) the petitioner suffered resulting prejudice.
Commonwealth v. Baumhammers, 92 A.3d 708, 719 (Pa.
2014) (citing [Commonwealth v. Pierce, 527 A.2d 973, 975–76
(Pa. 1987)]). A petitioner must prove all three factors of the
“Pierce test,” or the claim fails. Id. In addition, on appeal, a
petitioner must adequately discuss all three factors of the “Pierce
test,” or the appellate court will reject the claim. Commonwealth
v. Fears, [86 A.3d 795, 804 (Pa. 2014)].
Id. at 780.
Finally, we review claims of denial of a request to hold a hearing as
follows:
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The PCRA court has the discretion to dismiss a petition without a
hearing when the court is satisfied “that there are no genuine
issues concerning any material fact, the defendant is not entitled
to post-conviction collateral relief, and no legitimate purpose
would be served by further proceedings.” Commonwealth v.
Paddy, [15 A.3d 431, 442 (Pa. 2011)] (quoting Pa.R.Crim.P.
909(B)(2)). “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 favor,
would have entitled him to relief, or that the court otherwise
abused its discretion in denying a hearing.” Id. (quoting
Commonwealth v. D’Amato, [856 A.2d 806, 820 (Pa. 2004)]).
We stress that an evidentiary hearing “is not meant to function as
a fishing expedition for any possible evidence that may support
some speculative claim of ineffectiveness.” Commonwealth v.
Jones, [811 A.2d 994, 1003 n.8 (Pa. 2002)] (citation omitted).
In Jones, we declined to remand for an evidentiary hearing when
the appellant merely asserted that counsel did not have a
reasonable basis for his lack of action but made no proffer of
evidence as to counsel’s lack of action.
Commonwealth v. Roney, 79 A.3d 595, 604-05 (Pa. 2013).3
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3 See also Pa.R.Crim.P. 907(1) (Disposition without Hearing), which in
relevant part provides:
[T]he judge shall promptly review the petition, any answer by the
attorney for the Commonwealth, and other matters of record
relating to the defendant’s claim(s). If the judge is satisfied from
this review that there are no genuine issues concerning any
material fact and that the defendant is not entitled to post-
conviction collateral relief, and no purpose would be served by any
further proceedings, the judge shall give notice to the parties of
the intention to dismiss the petition and shall state in the notice
the reasons for the dismissal. The defendant may respond to the
proposed dismissal within 20 days of the date of the notice. The
judge thereafter shall order the petition dismissed, grant leave to
file an amended petition, or direct that the proceedings continue.
Pa.R.Crim.P. 907(1).
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A review of Appellant’s filings, including his appellate brief, reveals that
Appellant mentioned the first prong of the ineffective assistance of counsel
standard in his filings, failing, however, to provide any discussion regarding
the other two prongs (i.e., rational basis and prejudice).4 Under the above
authorities, we must conclude that Appellant’s claim is waived for failure to
plead and prove by a preponderance of the evidence all prongs of the
ineffective assistance of counsel test. See also Commonwealth v. Bracey,
795 A.2d 935, 940 n.4 (Pa. 2001) (failure to meaningfully discuss and apply
the standard governing the review of ineffectiveness claims does not satisfy
petitioner’s burden of establishing he is entitled to relief).
To the extent Appellant addressed the first prong, we note that
Appellant failed to show that his claim has merit by a preponderance of
evidence. Indeed, the Appellant does not even state that he has a claim, let
alone a meritorious one. The entire argument in support to his claim consists
of the following: “Whether or not” plea counsel disclosed confidential
information to the prosecutor raises a material issue of fact, which required a
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4 Similarly, the PCRA court found that Appellant “made no attempt to support
the bald claim of trial counsel’s alleged breach of confidentiality with any
record evidence or references to any that may exist elsewhere[.]” PCRA Court
Opinion, 6/13/18, at 11. This finding is consistent with Appellant’s own
argument: “There is absolutely nothing in the record for the court to make a
determination. . . . The only way to make such a determination would have
been for the court to have held an evidentiary hearing.” Appellant’s Brief at
15.
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hearing. Appellant’s Brief at 15. Having failing to hold a hearing, the PCRA
court’s denial of relief must be reversed. Id.Appellant fundamentally misapprehends what he needs to plead and
prove in his PCRA petition to get an evidentiary hearing and the purpose of a
hearing on a PCRA petition.
In the context of ineffective assistance of counsel claims, it is well-
established that counsel’s effectiveness is presumed, and that petitioner must
plead and prove by a preponderance of the evidence that counsel was not
effective. Failure to do so results in a dismissal of the petition.
To avoid such a result, “counsel must set forth an offer to prove
at an appropriate hearing sufficient facts upon which a reviewing
court can conclude that trial counsel may have, in fact, been
ineffective.” Commonwealth v. Pettus, [424 A.2d 1332, 1335
(Pa. 1981)]. However, “[t]he controlling factor in determining
whether a petition may be dismissed without a hearing is the
status of the substantive assertions in the petition.”
Commonwealth v. Weddington, [522 A.2d 1050, 1052 (Pa.
1987)].
Commonwealth v. Stanley, 632 A.2d 871, 872 (Pa. 1993).
Here, Appellant did not set forth an offer to prove the alleged breach of
confidentiality.5 Indeed, Appellant acknowledged that he needed an
evidentiary hearing to determine whether plea counsel disclosed confidential
information and the impact of the breach, if any. PCRA Court Opinion,
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5As noted above, Appellant acknowledged that the record is devoid of any of
such evidence. “There is absolutely nothing in the record for the court to
make a determination.” Appellant’s Brief at 15.
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6/13/18, at 3; Appellant’s Brief at 15. Petitioner must set forth an offer of
facts supporting his/her claim in the petition, as an evidentiary hearing “is not
meant to function as a fishing expedition for any possible evidence that may
support some speculative claim of ineffectiveness.” Jones, 811 A.2d at 1003
n.8.
In light of the foregoing, we conclude that the PCRA court did not err in
dismissing Appellant’s PCRA petition without holding a hearing.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/14/19
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