Com. v. Mcdowell, R. ( 2017 )

J-S45026-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT
OF PENNSYLVANIA
Appellee
v.
ROBERT MCDOWELL
Appellant No. 2407 EDA 2016
Appeal from the PCRA Order June 30, 2016
in the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0015492-2008
BEFORE: GANTMAN, P.J., PANELLA, J., and STRASSBURGER, J.*
MEMORANDUM BY STRASSBURGER, J.: FILED OCTOBER 31, 2017
Robert McDowell (Appellant) appeals from the order entered on June
30, 2016, which denied his petition filed pursuant to the Post Conviction Relief
Act (PCRA), 42 Pa.C.S. §§ 9541-9546. We affirm.
On December 20, 2010, a jury convicted Appellant of, inter alia, two
counts of first-degree murder for his role in the shooting deaths of two
individuals.1 This Court affirmed Appellant’s judgment of sentence on
September 9, 2013, and our Supreme Court denied his petition for allowance
of appeal on April 9, 2014.
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* Retired Senior Judge assigned to the Superior Court.
1We adopt the recitation of facts on page 2 of the PCRA court’s opinion as our
own. See PCRA Court Opinion, 10/21/2016, at 2 (quoting Commonwealth
v. McDowell, 87 A.3d 374 (Pa. Super. 2013) (unpublished memorandum at
1)).
J-S45026-17
Appellant timely filed a counseled PCRA petition raising numerous
ineffective-assistance-of-counsel claims for both trial and appellate counsel.
The PCRA court granted a hearing on one claim, specifically that trial counsel
was ineffective by giving Appellant legally incorrect information about his right
to testify. A hearing was held on June 30, 2016, and on the same day, the
PCRA court entered an order denying Appellant PCRA relief. Appellant timely
filed a notice of appeal, and both Appellant and the PCRA court complied with
Pa.R.A.P. 1925.
On appeal, Appellant has set forth eight questions for our review, see
Appellant’s Brief at 11-12, all of which suggest the PCRA court erred in denying
relief on Appellant’s ineffective-assistance-of-counsel claims. We review such
claims mindful of the following.
This Court analyzes PCRA appeals in the light most favorable
to the prevailing party at the PCRA level. Our review is limited to
the findings of the PCRA court and the evidence of record and we
do not disturb a PCRA court’s ruling if it is supported by evidence
of record and is free of legal error. Similarly, we grant great
deference to the factual findings of the PCRA court and will not
disturb those findings unless they have no support in the record.
However, we afford no such deference to its legal conclusions.
Where the petitioner raises questions of law, our standard of
review is de novo and our scope of review is plenary. 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) (quoting
Commonwealth v. Perry, 128 A.3d 1285, 1289 (Pa. Super. 2015)). “It is
well-established that counsel is presumed effective, and the [petitioner] bears
the burden of proving ineffectiveness.” Commonwealth v. Martin, 5 A.3d
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177, 183 (Pa. 2010). To overcome this presumption, Appellant must show
each of the following: “(1) the underlying substantive claim has arguable
merit; (2) counsel whose effectiveness is being challenged did not have a
reasonable basis for his or her actions or failure to act; and (3) the petitioner
suffered prejudice as a result of counsel’s deficient performance.” Id.Appellant’s claim will be denied if he fails to meet any one of these three
prongs. Id.Following a review of the certified record and the briefs for the parties,
we conclude that the opinion of the Honorable Glenn B. Bronson thoroughly
addresses Appellant’s issues and arguments and applies the correct law to
findings of fact that are supported by the record. We discern no abuse of
discretion. Therefore, we adopt the PCRA court’s opinion of October 21, 2016
as our own and affirm the order denying Appellant PCRA relief based upon the
reasons stated therein.2 See PCRA Court Opinion, 10/21/2016, at 4-5
(concluding that Appellant waived his right to be represented by original
counsel and that new counsel was not ineffective in failing to request a
continuance);3 id. at 5-8 (concluding that trial counsel advised Appellant
properly about his right to testify and therefore was not ineffective);4 id. at
____________________________________________
2 The parties shall attach a copy of the PCRA court’s October 21, 2016 opinion
to this memorandum in the event of further proceedings.
3 See Appellant’s Brief at 24-34.
4 See Appellant’s Brief at 35-40.
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8-12 (concluding that trial counsel was not ineffective for failing to request
the trial court recuse itself because there was no meritorious basis for doing
so);5 id. at 12-15 (concluding trial counsel was not ineffective by failing to
object to jury instructions);6 id. at 15-17 (concluding trial counsel was not
ineffective by failing to request a limiting instruction pursuant to Bruton v.
United States, 391 U.S. 23 (1968), because there was no reasonable
probability the outcome of the trial would have been different); 7 id. at 17-20
(concluding that trial counsel was not ineffective by failing to make non-
meritorious objections regarding prosecutorial misconduct);8 id. at 20-21
(concluding that claims of appellate counsel ineffectiveness were without
merit);9 and id. at 21 (concluding that there was no basis for a claim that the
cumulative effect of all other errors resulted in prejudice).10
Order affirmed.
President Judge Gantman joins.
Judge Panella concurs in the result.
____________________________________________
5 See Appellant’s Brief at 41-47.
6 See Appellant’s Brief at 54-60.
7 See Appellant’s Brief at 60-62.
8 See Appellant’s Brief at 47-52.
9 See Appellant’s Brief at 52-54.
10 See Appellant’s Brief at 62-63.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/31/2017
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Circulated 10/12/2017 12:48 PM