Com. v. Darden, M. ( 2021 )


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  • J-S45014-20
    NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.0.P. 65.37
    COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
    : PENNSYLVANIA
    MATTHEW DARDEN A/K/A GEORGE
    DAVIS
    No. 3326 EDA 2019
    Appellant
    Appeal from the PCRA Order Entered November 14, 2019
    In the Court of Common Pleas of Philadelphia County Criminal Division at
    No(s): CP-51-CR-0002495-2015
    BEFORE: BOWES, J., KUNSELMAN, J., and MURRAY, J.
    MEMORANDUM BY BOWES, J.: FILED FEBRUARY 05, 2021
    Matthew Darden a/k/a George Davis appeals from the November 14,
    2019 order denying his petition for relief pursuant to the Post-Conviction Relief
    Act (“PCRA”). We affirm.
    This Court previously authored a comprehensive summary of the factual
    and procedural history of this case. See Commonwealth v. Darden, 
    194 A.3d 712
     (Pa.Super. 2018) (unpublished memorandum at 1-2). In short, a
    jury convicted Appellant of, inter alia, involuntary deviate sexual intercourse
    (“IDSI”) and aggravated indecent assault in connection with multiple sexual
    assaults he committed against his twelve-year-old stepdaughter in the spring
    of 2011. At trial, the victim recounted these events in detail. The victim’s
    brother and her school counselor separately testified that the victim disclosed
    these assaults “two or three years” after they occurred. Id. at 1.
    J-S45014-20
    On January 12, 2017, the trial court sentenced Appellant to an
    aggregate term of thirty-eight to seventy-six years of imprisonment.
    “Although still represented by counsel, [Appellant] filed a pro se notice of
    appeal on January 17, 2017." Id. While Appellant initially sought to represent
    himself on direct appeal, he eventually abandoned those efforts. On July 26,
    2018, this Court affirmed his judgment of sentence. Id. at 3. Appellant did
    not seek allowance of appeal before our Supreme Court.
    On October 15, 2018, Appellant timely filed a pro se PCRA petition.
    Counsel was appointed and an amended PCRA petition was filed asserting
    various claims that Appellant’s trial counsel had rendered ineffective
    assistance of counsel by failing: (1) to file a post-sentence motion challenging
    the weight of the evidence; (2) to file a motion for reconsideration of
    sentence; and (3) to question a juror about a conversation with a courtroom
    employee. See Amended PCRA Petition, 4/7/19, at 7. In response, the
    Commonwealth filed a motion to dismiss, arguing that Appellant’s claims
    lacked merit because he could not establish prejudice.
    On October 24, 2019, the PCRA court issued notice of its intent to
    dismiss Appellant’s petition without a hearing pursuant to Pa.R.Crim.P. 907.
    Upon receiving no response from Appellant, the PCRA court dismissed the
    petition on November 14, 2019. The next day, Appellant filed notice of appeal
    to this Court. Both Appellant and the PCRA court have complied with the
    requirements of Pa.R.A.P. 1925(b).
    Appellant has raised the following questions for our consideration:
    -2-
    J-S45014-20
    I. Whether the court erred in denying [Appellant’s] PCRA petition
    without an evidentiary hearing on the issues raised in the
    amended PCRA petition regarding trial counsel’s ineffectiveness.
    II. Whether the court was in error in not granting relief on the
    issue that [trial] counsel was ineffective for the following reasons:
    a. Counsel was ineffective for failing to file a post[-]verdict
    motion that the verdict was against the weight of the
    evidence.
    b. Counsel was ineffective for failing to file a motion for
    reconsideration of sentence.
    c. Counsel was ineffective for failing to question a juror
    about a conversation the juror had with a courtroom
    employee.
    Appellant’s brief at 8.
    In reviewing these issues, we are mindful of the following legal
    principles:
    Our standard of review in a PCRA appeal requires us to determine
    whether the PCRA court’s findings of fact are supported by the
    record, and whether its conclusions of law are free from legal
    error. The scope of our review is limited to the findings of the
    PCRA court and the evidence of record, which we view in the light
    most favorable to the party who prevailed before the court... .
    The PCRA court’s factual findings and credibility determinations,
    when supported by the record, are binding upon this Court... .
    However, we review the PCRA court’s legal conclusions de novo.
    Commonwealth v. Small, 
    238 A.3d 1267
    , 1280 (Pa. 2020) (internal
    quotation marks and citations omitted).
    The PCRA court authored a cogent opinion pursuant to Pa.R.A.P.
    1925(a), that provides a well-reasoned and complete discussion of the factual
    and procedural history of Appellant’s case. Furthermore, the PCRA court has
    -3-
    J-S45014-20
    addressed each of Appellant’s claims with apposite and persuasive citations to
    legal authorities and the certified record. We discern no legal errors in the
    PCRA court’s analysis and we find that its factual findings and credibility
    determinations are fully supported by the contents of the certified record.
    Accordingly, we will adopt the reasoning set forth in the PCRA court’s
    Rule 1925(a) opinion as our own.! See PCRA Court Opinion, 3/4/20, at 5-7
    (determining that trial counsel was not ineffective by not filing a post-sentence
    motion challenging the weight of the evidence because the verdict did not
    shock the trial court’s conscience); 7-10 (explaining that trial counsel cannot
    be ineffective for failing to file a motion for reconsideration of sentence that
    lacked merit); 10-11 (indicating that Appellant failed to articulate how trial
    1 In its Rule 1925(a) opinion, the trial court suggests in dicta that Appellant’s
    trial counsel cannot be held ineffective for failing to file post-sentence motions
    due to Appellant’s filing of a premature pro se notice of appeal. See Trial
    Court Opinion, 3/4/20, at 8 (‘Counsel cannot be held deficient due to
    [Appellant’s] own actions.”). This passing statement is not relevant to the
    PCRA court’s legal analysis, which concludes on separate and correct grounds
    that Appellant cannot demonstrate that counsel’s alleged oversights would
    ultimately entitle him to relief, 7.e., the prejudice prong of the ineffectiveness
    standard set forth in Strickland v. Washington, 
    466 U.S. 668
    , 687 (1984),
    and Commonwealth v. Pierce, 
    527 A.2d 973
    , 975 (Pa. 1987).
    For the sake of clarity, we note that our Supreme Court has previously held
    that a “merely premature” pro se notice of appeal filed by a represented
    defendant does not inextricably divest the trial court of jurisdiction to act upon
    a timely, counseled post-sentence motion that is subsequently filed. See
    Commonwealth v. Cooper, 
    27 A.3d 994
    , 1007-08 (Pa. 2011). Thus, we
    discern that counsel is not excused from an obligation to file post-sentence
    motions merely due to his “unschooled” client’s “ill-advised” filing of a pro se
    notice of appeal. 
    Id.
    -4-
    J-S45014-20
    counsel’s failure to question a juror concerning a brief encounter with a
    courtroom employee prejudiced him); 11-12 (concluding that no evidentiary
    hearing was warranted because there were no “material issues of fact” that,
    if decided in Appellant’s favor, would have entitled him to relief).
    Order affirmed.
    Judgment Entered.
    seph D. Seletyn, Esqy
    Prothonotary
    Date: 2/5/2021
    Circulated 01/27/2021 02:51 PM
    COURT OF COMMON PLEAS :
    FIRST JUDICIAL DISTRICT OF PENNSYLVANIA si ae
    CRIMINAL TRIAL DIVISION SED HAR -b AM IQ? 35
    COMMONWEALTH OF PENNSYLVANIA
    PCRA
    Vv.
    CP-51-CR-0002495-2015
    MATTHEW DARDEN a/k/a
    George Davis
    OPINION
    STATEMENT OF THE CASE
    Defendant is appealing the dismissal of his PCRA petition as having no merit. Defendant
    complains trial counsel was ineffective for failing to file a post sentence motion challenging the
    _ weight of the evidence, failing to file a post sentence motion for reconsideration of sentence and
    failing to question a juror regarding a conversation with a court employee. Defendant also
    complains the Court erred in not conducting an evidentiary hearing. Defendant’s complaints are
    without merit.
    PROCEDURAL HISTORY
    On September 1, 2016, at the conclusion of his jury trial, Defendant was found guilty on
    the charges of Involuntary Deviate Sexual Intercourse (IDS) of a child less than thirteen years of
    age, Aggravated Indecent Assault of a child Jess than thirteen years of age, and related offenses.
    On January 12, 2017, Defendant was sentenced to an aggregate period of confinement in a state
    correctional facility of thirty-eight to seventy-six years.
    On January 17, 2017, Defendant timely filed a direct appeal to the Superior Court of
    Pennsylvania, at 454 EDA 2017, which affirmed his judgment of sentence on July 26, 2018.
    On October 15, 2018, Defendant timely filed the instant counseled PCRA Petition pursuant to 42
    Pa.C.S.A. §9541, et. Seq. On November 8, 2018, Peter A. Levin, Esq., was appointed to represent
    Defendant for the purpose of his PCRA petition. On April 8, 2019, Defendant filed a counseled
    amended PCRA petition. On August 8, 2019, the Commonwealth filed a motion to dismiss. On
    October 24, 2019, after a hearing and careful review of the record, the Court issued its notice,
    pursuant to Rule 907 of the Pennsylvania Rules of Criminal Procedure (Pa. R. Crim. P.), advising
    Counsel and Defendant that it intended to dismiss Defendant’s petition within twenty days of
    issuance. On November 14, 2019, receiving no response, the Court issued an Order dismissing
    Defendant’s PCRA Petition as being without merit.
    On November 15, 2019, Defendant timely a filed the instant Notice of Appeal to the
    Superior Court of Pennsylvania. On December 18, 2019, this Court filed and served on Defendant
    an Order, pursuant to Rule 1925(b) of the Pennsylvania Rules of Appellate Procedure, directing
    Defendant to file and serve a Statement of Errors Complained of on Appeal, within 21 days of the
    Court’s Order. On January 8, 2020, Defendant timely filed his “Statement of Errors Complained
    of on Appeal.” In his statement of errors, Defendant raises four issues, namely:
    1. “a) Counsel was ineffective for failing to file a post verdict motion that the verdict was
    against the weight of evidence. (See Amended PCRA 4/7/19, p. 11-13)
    b) Counsel was ineffective for failing to file a motion for reconsideration of sentence.
    (See Amended PCRA 4/7/19, p. 13-16)
    c) Counsel was ineffective for failing to question a juror about a conversation he had
    with a courtroom employee. (See Amended PCRA 4/7/19, p. 16-17)
    2. The PCRA court was in error in failing to grant an evidentiary hearing on the above
    issues.”
    DISCUSSION OF THE ISSUES RAISED:
    The statutory intent of the PCRA Act is to function as an extraordinary proceeding
    designed to provide relief to “persons convicted of crimes they did not commit and serving illegal
    sentences.” (42 Pa.C.S.A. 9542) Tt is not meant to function as a substitute for or a continuation
    of direct appellate rights. Therefore, in pursuing PCRA relief, applicants must establish through
    their pleading, sufficient grounds to justify the granting of relief. Consequently, claims of
    sneffectiveness are subject to specific pleading and proof requirements under the PCRA act. “Mere
    boilerplate assertions...... are inadequate to prove the effective denial of the right to counsel
    necessary to warrant PCRA relief. Commonwealth v. Simmons, 
    804 A.2d 625
    , 639 (Pa. 2001)
    Defendant, in seeking PCRA relief on the grounds of ineffective assistance of counsel must
    plead and establish by a “reasonable probability” that the outcome of his trial would have been
    different but for counsel’s ineffectiveness. The essence of a claim of ineffective assistance of
    counsel is that counsel's unprofessional errors so upset the adversarial balance between defense -
    and prosecution that the trial was rendered unfair and the verdict rendered suspect.
    Commonwealth v. Wantz, 
    84 A.3d 324
    , 331 (Pa. 2014) When the issue of the ineffectiveness of
    counsel is raised; “Counsel is presumed to have been effective and the defendant has the burden
    of proving otherwise.” Commonwealth v. Tilley, 
    780 A.2d 649
    , 652 (Pa. 2001) Our Supreme
    Court, in Commonwealth v. Lesko, 
    15 A.3d 345
     (Pa. 2011), reaffirmed its previously enunciated
    Strickland/Pierce! test, which established that in order to prevail in his complaint that counsel was
    ineffective Defendant must satisfy each prong of a three prong test. That is, he must establish:
    a
    | Suriektand v. Washington, 466 US. 668, 687, 1048, Ct. 2052, 
    80 L.Ed.2d 674
     (1984); Conunonweatih vy, Pierce,
    
    515 Pa. 153
    , 
    527 A.2d 973
    , 975 (1987)
    “(1) the underlying claim has arguable merit; (2) no reasonable basis existed for counsel's actions
    or failure to act; and (3) petitioner suffered prejudice as a result of counsel's error such that there
    is a reasonable probability that the result of the proceeding would have been different absent such
    error.” 
    Id.,
     at 373 “With regard to the second, i.¢., the reasonable basis prong, we will conclude
    that counsel's chosen strategy lacked a reasonable basis only if Appellant proves that an alternative
    not chosen offered a potential for success substantially greater than the course actually pursued.”
    Conmnonweaith v. Spotz, 
    18 A.3d 244
    , 260 (Pa. 2011) (Internal citations and quotations omitted)
    When prejudice cannot be presumed, Defendant must plead and prove actual prejudice under
    “cnickland” Commonwealth v. Reaves, 
    923 A.2d 1119
    , 1127 (2007) “The Strickland test for
    prejudice requires a showing of a reasonable probability that the outcome of
    the... proceeding. .: would have been different.” Commonweatth v. Daniels, 
    104 A.3d 267
    , 296-
    97 (Pa. 2014) A reasonable probability is a probability sufficient to undermine confidence in the
    outcome.” Commonwealth v. Spotz, Supra.
    “A failure to satisfy any prong of the test for ineffectiveness will require rejection of the
    claim.” Commonwealth v. Watson, 
    835 A.2d 786
    , 793 (Pa. Super. 2003) Furthermore, “a court
    is not required to analyze the elements of an ineffectiveness claim in any particular order of
    priority; instead, if a claim fails under any necessary element of the Strickland test, the court may
    proceed to that element first. Lesko, at 374 (2011) “If it is clear that Appellant has not
    demonstrated that counsel's act or omission adversely affected the outcome of the proceedings, the
    claim may be dismissed on that basis alone and the court need not first determine whether the first
    and second prongs have been met.” Commonwealth y. Albrecht, 
    554 Pa. 31
    , 46, 
    720 A.2d 693
    ,
    701 (1998)
    I. COUNSEL WAS NOT INEFFECTIVE FOR FAILING TO FILE A POST
    VERDICT MOTION THAT THE VERDICT WAS AGAINST THE WEIGHT
    OF EVIDENCE.
    Defendant, in his first statement of errors, complains trial counsel was “ineffective for
    failing to file a post verdict motion that the verdict was against the weight of evidence.”
    Defendant’s complaint is both disingenuous and without merit.
    “A motion for new trial on the grounds that the verdict is contrary to the weight of the
    evidence, concedes that there is sufficient evidence to sustain the verdict... A new trial should not
    be granted because of a mere conflict in the testimony or because the judge on the same faets
    would have arrived at a different conclusion.” Commonwealth v. Widmer, 
    744 A.2d 745
    , 751-52
    (Pa, 2000) (internal citations omitted) In Commonwealth. v. Gaskins, 
    692 A.2d 224
    , 227 (Pa.
    Super. 1997) our Superior Court held that “credibility determinations are made by the fact finder
    and that challenges thereto go to the weight, and not the sufficiency, of the evidence.” “One of
    the least assailable reasons for granting or denying a new trial is the lower court's conviction that
    the verdict was or was not against the weight of the evidence and that a new trial should be granted
    in the interest of justice.” 
    Id.,
     at 753
    “The weight of the evidence 1s exclusively for the finder of fact who is free to believe all,
    none or some of the evidence and to determine the credibility of the witnesses.” Commonwealth
    v, Johnson, 
    542 Pa. 384
    , 394, 
    668 A.2d 97
    , 101 (1995). “The granting of a new trial is an inherent
    power and immemorial right of the trial court and an appellate court will not find fault with the
    exercise of such authority in the absence of a clear abuse of discretion.” Clewell v. Pummer, 
    388 Pa. 592
    , 598-99 (1957). “Before a trial court may award a new trial on the ground that the verdict
    is against the weight of the evidence, it must appear that the verdict was so contrary to the evidence
    as to shock one’s sense of justice and make the award of a new trial imperative.” Commonwealth
    v. Rossetti, 
    863 A.2d 1185
    , 1191 (Pa. Super. 2004), citing Commonweatth v. Hunter, 
    554 A.2d 550
     (Pa. Super. 1989). “Whether a new trial should be granted on such grounds is addressed to
    the sound discretion of the trial court.” Commonwealth v. Murray, 
    597 A.2d 111
    , 113 Wa. Super.
    1991).
    Prior to imposing sentence, counsel announced his intention to file post sentence motions.
    Despite this, Defendant filed his pro se Notice of Appeal five days after the imposition of sentence,
    thus depriving counsel the opportunity to timely file a reasoned and considered post sentence
    motion. (N.T. 1/12/17, pgs. 20, 21, 26) (Also see counsel’s Motion to Withdraw as Counsel, filed
    3/17/2017)
    That said, as discussed in its prior {925(a) opinion, at 454 EDA 2017, the evidence at trial
    was credible, direct and unequivocal. The complaining witness testified that she had been sexually
    violated by the Defendant, her stepfather, twice while she was only twelve years old. She testified
    that, on the first occasion, Defendant digitally penetrated her vagina with his finger. (N.T. 8/30/16,
    pes. 77, 78, 79, 80) The next physical contact occurred when Defendant told her to lay down on
    the bed so he could perform the “root” ritual on her, which she defined as Defendant performing
    oral sex on her. (N.T. 8/30/ 16, pg. 81, 83, 84) She also testified that she had been told by
    Defendant “Don’t tell your mom, it would break her heart...” (N.T. 8/30/16, pg. 80) The
    complainant’s testimony was corroborated by her father, brother and school counselor, each of
    whom testified that the complainant subsequently confided in them that she had been assaulted by
    Defendant. (N.T. 8/30/16, pgs. 28, 29, 36, 143, 155)
    Defendant ignores the record. As the Court explained in its prior 1925(a) opinion, at pg.
    6, citing Commonwealth v. Castelhun, 
    889 A.2d 1228
    , 1232 (Pa. Super. 2005), “it is well
    established that “the uncotroborated testimony of the complaining witness is sufficient to convict
    a defendant of sexual offenses.” As discussed above, the complainant’s testimony regarding
    Defendant’s abuse was credible, clear and direct. The jury, on the other hand, could have believed
    Defendant’s equally direct testimony that no such abuse occurred. The jury, in convicting
    Defendant, was not persuaded by his testimony.
    That said, in reviewing the record before it, the Court cannot say that the “verdict was so
    contrary to the evidence as to shock one's sense of justice and make the award of a new trial
    imperative.” The Court finds Defendant was not prejudiced by counsel’s actions, for had counsel
    presented a motion challenging the verdict as being against the weight of the evidence, the Court
    would have denied it.
    I. COUNSEL WAS NOT INEFFECTIVE FOR FAILING TO FILE A POST
    TRIAL MOTION TO RECONSIDER SENTENCE.
    Defendant, in his second statement of errors, complains trial counsel was “ineffective for
    failing to file a motion for reconsideration, of sentence.” Again, Defendant’s complaint is both
    disingenuous and without metit.
    It is well established that in reviewing sentencing matters, the deciston of the trial court is
    accorded “great weight, as it is in the best position to view the defendant's character, displays of
    remorse, defiance or indifference, and the overall effect and nature of the crime.” Commonwealth
    vy. Canfield, 
    639 A.2d 46
    , 50 (Pa. Super. 1994) (internal citation omitted) Further, a sentence
    imposed by the séntencing judge will not be disturbed on appeal absent a manifest abuse of
    discretion. Commonwealth v. Galletta, 
    864 A.2d 532
    , 34 (Pa. Super. 2004), Our Supreme Court
    in Commonwealth v. Walls, 
    926 A.2d 957
    , 961 (Pa. 2007), citing its decisions in Commonwealth
    y. Smith, 
    543 Pa. 566
    , 
    673 A.2d 893
    , at 895 (Pa. 1996), held an abuse of discretion is more than
    a mere error of judgment, and a sentencing court will not have abused its discretion unless “the
    7
    record disclosed that the judgment exercised was manifestly unreasonable, or the result of
    partiality, prejudice, bias, or ill-will....... The rationale behind such broad discretion and the
    concomitantly deferential standard of appellate review is that the sentencing court is in the best
    position to determine the proper penalty for a particular offense based upon an evaluation of the
    individual circumstances before it." Furthermore, our Superior Court, in Commonwealth v.
    Mastromarino, 
    2 A.3d 581
    , 586-5875 (Pa.Super.2010) reiterated that; “Long standing precedent
    of this Court recognizes that 42 Pa.C.S.A. §9721, affords the sentencing court’s discretion to
    impose its sentence concurrently or consecutively to other sentences being imposed at the same
    time or to sentences already imposed.”
    It has long been recognized that failure to seek reconsideration of sentence does not rise to
    the level of per se ineffectiveness of counsel. Whether trial counsel “can be deemed ineffective,
    then, depends upon whether appellee has proven that a motion to reconsider sentence, if filed...,
    would have led to-a different and more favorable outcome at.. sentencing. In this context, the
    only way the proceeding would have been more favorable would be if counsel's objection secured
    a reduction in the sentence.” Commonwealth v. Reaves, 
    923 A.2d 1119
    , 1131-32 (Pa. 2007)
    Thus, Defendant must establish actual prejudice resulting from counsel’s failure to file such a
    motion, That is, he must establish that there was a “reasonable probability” that such a motion
    would have resulted in a reduction of his sentence.
    As noted above, Defendant’s filing of his pro se Notice of Appeal five days after the
    imposition of sentence, effectively deprived counsel of the ability to timely file a reasoned and
    considered motion for reconsideration of sentence. Counsel cannot be held deficient due to
    Defendant’s own actions.
    That said, it was agreed by counsel that Defendant’s prior record score (PRS) was 5. (N.T.,
    1/12/17, pg. 12) It was also agreed that the offense gravity scores (OGS) on the charge of IDSI on
    4 child and unlawful contact with a minor was 14, with a guidelines recommendation of 192
    months to statutory limits + 12 months. On the charge of aggravated indecent assault of a child,
    the OGS is 12, with a guideline sentence of 84 to 102 months + 12. On each of the charges of
    corrupting the morals of a minor and endangering the welfare of a child, the OGS is 6 with a
    guideline sentence of 21 to 27 months, + 6. (N.T., 1/12/17, pg. 12, 13) Tt was also agreed by
    counsel that Defendant was determined to be a Sexually Violent Predator (SVP). (N.T., 1/12/17,
    pgs. 9-11, 28)
    After reviewing Defendant’s PSI, sexual assessment evaluation and listening to argument
    of counsel, the Court found Defendant was likely to reoffend. (N T., 1/12/17, pg. 27) In imposing
    sentence, the Court noted for the record that “I'm going to impose a guideline sentence,”
    whereupon the Court imposed the following consecutive periods of incarceration in a state
    correctional facility as follows; 1) on the charge of IDSI with a child, 16 to 32 years; 2) on the
    charge of unlawful contact with a minor, 10 to 20 years; 3) on the charge of aggravated indecent
    assault of a child, 8 to 16 years; 4) on the charge of endangering the welfare of a child, 2 to 4 years;
    and 5) on the charge of corruption of a minor 2 to 4 years. In short, the court imposed an aggregate
    sentence of 38 to 76 years of confinement. (N.T., 1/12/17, pgs. 27, 28)
    Prior to imposing sentence, Defendant requested that his sentence be within the guidelines.
    (N.T., 1/12/17, pg. 17) Each sentence imposed is clearly within the guidelines, as requested.
    However, Defendant’s prior record score of 5 belies his extensive criminal history. (N.T., 1/12/17,
    pgs. 13, 14) In light of this and the likelihood of Defendant reoffending, the Court felt it was
    appropriate that his sentences run consecutively to each other. Nevertheless, Defendant’s sentence
    was reasonable under the circumstances and had Defendant filed a motion for reconsideration, the
    Court would have denied it.
    WL. COUNSEL WAS NOT INEFFECTIVE FOR FAILING TO QUESTION A
    JUROR.
    Defendant, in his third statement of errors, complains trial counsel was “ineffective for
    failing to question a juror about a conversation he had with a courtroom employee.” Defendant’s
    complaint is without merit.
    It has long been recognized that ex parte “contact among jurors, parties, and witnesses is
    viewed with disfavor.” Commonwealth v. Brown, 
    786 A.2d 961
    , 972 (Pa. 2001) (internal citations
    omitted) However, in the event of improper or inadvertent contact between a juror and a witness
    there is no per se rule requiring a mistrial. Commonwealth v. Mosley, 535 Pa, 549, 
    637 A.2d 246
    (1993) Additionally, “only those ex parte communications between a court and jury which are
    likely to prejudice a party will require reversal.” Commonwealth v. Bradley, 
    501 Pa. 25
    , 27, 
    459 A.2d 733
    , 734 (1983) “It is within the discretion of the trial court to determine whether a defendant
    has been prejudiced by misconduct or impropriety to the extent that a mistrial is warranted.”
    Brown, Supra., at 972 (Internal citations omitted)
    Prior to the commencement of trial, the Court advised counsel, outside of the hearing of
    the jury that; “Last night my tipstaff was riding on the train and one of the jurors was talking to
    him about court in general, nothing [about] the case.” (N.T., 8/30/16, pg. 4) After being sworn
    in, the Court’s Tipstaff testified as follows:
    “I got on the train to go home. I caught the train at Jefferson. It was a little packed.
    There was still a couple seats left. It went into Suburban Station which was very heavily
    packed. He just came up and sat right next to me, didn't say nothing. I didn't look at
    him. I was looking out the window. And he turned around to me and he said, "You
    10
    work at the courthouse." And I said yes. And he said, "I thought I recognized you." I
    didn't say nothing. He then, after a few minutes we started moving out of 30th Street
    Station, he asked about the job. And I said, "Well, it is interesting in the beginning and
    at the end it is like water off the duck's back. You get used to it." And that is about as
    far as I can remember.” (N.T., 8/30/16, pg. 5)
    When specifically asked if the case had been discussed, the Tipstaff responded; “No.” (N.T.,
    8/30/16, pe. 6) |
    Considering that the jury had not yet been sworn in and no testimony had been taken, the
    Court concluded that this encounter was brief and coincidental, having no bearing on the trial.
    Furthermore, counsel, when asked if it “is still necessary to bring out the juror,” responded; “No,
    not based on that.” (N.T., 8/30/16, pg. 6)
    Defendant has utterly failed to address his burden of establishing how he was prejudiced
    by this encounter. The Court finds Defendant was not prejudiced by counsel’s failure to question
    the juror involved.’
    IV. DEFENDANT WAS NOT ENTITILED TO AN EVIDENTIARY HEARING.
    Defendant complains that the Court “was in error in failing to grant an evidentiary hearing
    on the above issues.” Defendant’s complaint is without merit.
    There is no absolute right to an evidentiary hearing under the PCRA. Commonwealth v.
    Hardcastle, 701 Ad 541, 542 (Pa. 1997); In accord, Commonweatth v. Keaton, 45 A3d 1050,
    1094 (Pa, 2012). A “PCRA court has discretion to dismiss a petition without a hearing when the
    court is satisfied that there are no genuine issues of material fact, the petitioner is not entitled to
    post-conviction collateral relief, and no legitimate purpose would be served by further
    proceedings...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
    1]
    favor, would have entitled him to relief, or that the court otherwise abused its discretion in denying
    ahearing.” Commonwealth v. Blakeney, 
    108 A.3d 739
    , 750 (Pa. 2014) (Internal citations omitted)
    That is, to justify a hearing, Defendant must prove that there is a genuine issue of material fact
    which could entitle him to relief. Commonwealth v. Clark, 
    961 A.2d 80
    , 84 (Pa. 2008);
    Commonwealth vy, D’Amato, 
    856 A.2d 806
    , 820 (Pa, 2004); Pa.R.Crim.P. 908(A)(2).
    As discussed above, the Court finds Defendant has failed to “raise a genuine issue of fact
    which, if resolved in his favor, would have entitled him to relief.” Defendant has not met, nor
    even altempted to address, his burden under Strickland/Pierce.
    CONCLUSION
    In conclusion, upon careful review of the record before it, the Court finds that
    Defendant has failed to meet his burden in establishing that trial counsel failed to render effective
    representation in failing to file post-trial motions or in failing to question a juror. The Court also
    finds that Defendant has failed to raise any material issues necessitating an evidentiary hearing.
    BY THE COURT:
    fh if . /
    foA\ 3 Of
    March 2, 2020 CD an Npbencntnn
    J.
    HON. CHARLES J. CONTINGHANS Tl
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