Com. v. Washington, Y. ( 2018 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
YASHEAM WASHINGTON :
:
Appellant : No. 3085 EDA 2017
Appeal from the PCRA Order September 7, 2017
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0012019-2007,
CP-51-CR-0012020-2007
BEFORE: OLSON, J., STABILE, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY OLSON, J.: FILED SEPTEMBER 24, 2018
Appellant, Yasheam Washington, appeals from the September 7, 2017
order dismissing his first petition filed pursuant to the Post-Conviction Relief
Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. We affirm.
Early in the morning on August 23, 2007, Appellant held a knife to Keith
Rogers’ stomach while his confederates robbed him. Rogers immediately went
to police and reported the robbery. Two days later, Appellant and his
confederates assaulted Rogers because he reported the robbery to police.
Appellant proceeded to a bench trial at which he did not testify.
Appellant was convicted of two counts of conspiracy,1 two counts of simple
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1 18 Pa.C.S.A. § 903.
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assault,2 theft by unlawful taking,3 recklessly endangering another person,4
robbery,5 resisting arrest,6 and retaliating against a witness.7 The trial court
sentenced Appellant to 6 to 14 years’ imprisonment. This Court affirmed the
judgment of sentence and our Supreme Court denied allowance of appeal.
Commonwealth v. Washington, 24 A.3d 458 (Pa. Super. 2011)
(unpublished memorandum), appeal denied, 29 A.3d 373 (Pa. 2011).
On March 28, 2012, Appellant filed a pro se PCRA petition. Counsel was
appointed and filed an amended petition. On July 18, 2017, the PCRA court
issued notice of its intent to dismiss the petition without an evidentiary
hearing. See Pa.R.Crim.P. 907. On September 7, 2017, the PCRA court
dismissed the petition. This timely appeal followed.8
Appellant presents one issue for our review:
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2 18 Pa.C.S.A. § 2701(a).
3 18 Pa.C.S.A. § 3921(a).
4 18 Pa.C.S.A. § 2705.
5 18 Pa.C.S.A. § 3701(a)(1)(iv).
6 18 Pa.C.S.A. § 5104.
7 18 Pa.C.S.A. § 4953(a).
8 On October 2, 2017, the PCRA court ordered Appellant to file a concise
statement of errors complained of on appeal (“concise statement”). See
Pa.R.A.P. 1925(b). On October 13, 2017, Appellant filed his concise
statement. On December 8, 2017, the PCRA court issued its Rule 1925(a)
opinion. Appellant’s lone issue was included in his concise statement.
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[Was trial counsel] ineffective in advising [A]ppellant not to testify
at trial thereby vitiating [A]ppellant's Constitutional right to testify
[on] his own behalf at trial?
Appellant’s Brief at 2.
Prior to considering the merits of Appellant’s issue, we must determine
whether he preserved that issue. Madrid v. Alpine Mountain Corp., 24
A.3d 380, 382 (Pa. Super. 2011). A petitioner is required to raise an issue in
the PCRA court in order for the issue to be preserved for appellate review.
Pa.R.A.P. 302(a); Commonwealth v. Roney, 79 A.3d 595, 616 (Pa. 2013).
Appellant’s amended PCRA petition failed to allege that his trial counsel was
ineffective in advising him not to testify at trial. Instead, the only issue raised
in Appellant’s amended PCRA petition was that trial counsel was ineffective for
failing to call Appellant as a witness at trial. See Amended PCRA Petition,
1/12/16, at 1-2. Appellant failed to allege that trial counsel advised him not
to testify at trial.9 See id. Hence, Appellant waived his claim that trial counsel
was ineffective in advising him not to testify at trial.
Moreover, Appellant waived his lone appellate issue because he failed to
ensure that the notes of testimony from the bench trial were included in the
certified record. See Lundy v. Manchel, 865 A.2d 850, 855 (Pa. Super. 2004)
(issue waived for failure to include all necessary documents in the certified
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9 Appellant raised this issue for the first time in his concise statement. “An
issue raised for the first time in a concise statement is waived.” Beemac
Trucking, LLC v. CNG Concepts, LLC, 134 A.3d 1055, 1058 (Pa. Super.
2016) (citation omitted).
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record); cf. Commonwealth v. Magee, 177 A.3d 315, 326 n.13 (Pa. Super.
2017) (citation omitted) (“It is the appellant’s responsibility to ensure that the
certified record contains the facts needed for review.”). Because of this
omission, we are unable to determine if a colloquy occurred in which trial
counsel and/or the trial court properly informed Appellant of his right to testify
on his own behalf.
Even if Appellant preserved his lone appellate issue, he would not be
entitled to relief. “When reviewing the denial of a PCRA petition, our standard
of review is limited to examining whether the PCRA court’s determination is
supported by evidence of record and whether it is free of legal error.”
Commonwealth v. Jordan, 182 A.3d 1046, 1049 (Pa. Super. 2018) (citation
omitted). Appellant’s lone issue relates to his trial counsel’s alleged
ineffectiveness.
“[T]he Sixth Amendment to the United States Constitution and Article I,
[Section] 9 of the Pennsylvania Constitution, [entitle a defendant] to effective
counsel. This right is violated where counsel’s performance so undermined
the truth-determining process that no reliable adjudication of guilt or
innocence could have taken place.” Commonwealth v. Simpson, 112 A.3d
1194, 1197 (Pa. 2015) (cleaned up). “Counsel is presumed to have been
effective.” Commonwealth v. Andrews, 158 A.3d 1260, 1263 (Pa. Super.
2017). To prevail on an ineffective assistance of counsel claim, a “petitioner
must plead and prove that: “(1) his underlying claim is of arguable merit; (2)
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the particular course of conduct pursued by counsel did not have some
reasonable basis designed to effectuate his interests; and, (3) but for
counsel’s ineffectiveness, there is a reasonable probability that the outcome
of the challenged proceeding would have been different.” Commonwealth
v. Johnson, 179 A.3d 1153, 1158 (Pa. Super. 2018) (citation omitted). “A
petitioner’s failure to satisfy any prong of this test is fatal to the claim.”
Commonwealth v. Wholaver, 177 A.3d 136, 144 (Pa. 2018) (citation
omitted).
To show that “counsel was ineffective for failing to advise [a defendant]
of his [right to testify], the [petitioner] must demonstrate either that counsel
interfered with his right to testify, or that counsel gave specific advice so
unreasonable as to vitiate a knowing and intelligent decision to testify on his
own behalf.” Commonwealth v. Smith, 181 A.3d 1168, 1179 (Pa. Super.
2018) (citation omitted). Appellant does not allege that trial counsel
interfered with his right to testify. Hence, he must demonstrate that trial
counsel’s specific advice was so unreasonable as to vitiate a knowing and
intelligent decision not to testify on his own behalf.
Appellant’s amended PCRA petition and appellate brief do not set forth
the specific advice counsel provided that was so unreasonable as to vitiate
his right to knowingly and intelligently waive his right to testify on his own
behalf. It is well-settled that an undeveloped, bald assertion such as that
contained in Appellant’s amended PCRA petition does not entitle a defendant
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to an evidentiary hearing. See Commonwealth v. McDermitt, 66 A.3d 810,
816 (Pa. Super. 2013). Furthermore, Appellant did not attach any documents,
affidavits, or notes of testimony to his amended PCRA petition supporting his
claim that trial counsel provided specific advice that was so unreasonable as
to vitiate his right to knowingly and intelligently waive his right to testify on
his own behalf. Accordingly, Appellant would not be entitled to relief if he
preserved his lone appellate issue.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/24/18
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