Com. v. Lebron, B. ( 2020 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
BRAULIO LEBRON :
:
Appellant : No. 318 EDA 2020
Appeal from the PCRA Order Entered December 19, 2019
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0008590-2015
BEFORE: BOWES, J., KUNSELMAN, J., and MURRAY, J.
MEMORANDUM BY MURRAY, J.: FILED OCTOBER 26, 2020
Braulio Lebron (Appellant) appeals from the order dismissing his petition
filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-
9546. We affirm.
A prior panel of this Court summarized the underlying facts as follows:
On August 7, 2015, at about 8:12 p.m., Mr. Robert Hampton
entered his residence[.] As he did so, Appellant, who lived a
couple of houses away, was standing to the side of Mr. Hampton’s
residence. Appellant followed Mr. Hampton inside his residence,
called him a rapist, and then punched him in the face. Appellant
then picked up a stick that was in Mr. Hampton’s living-room and
struck Mr. Hampton with the stick, which had nails protruding out
of it, about three times. During the assault, Appellant also bit Mr.
Hampton. Mr. Hampton did not give Appellant permission to enter
his residence.
A second person entered Mr. Hampton’s residence when he and
Appellant entered. The other male, who Mr. Hampton knew by
the name Chris, ran from the residence after hitting Mr. Hampton
in the face.
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Mr. Hampton fought back against Appellant’s assault. In doing
so, Appellant pulled him to the ground and kicked Mr. Hampton in
the ribs three or four times. At or about that time, a friend of Mr.
Hampton’s named Megan Ross, who was present in the residence
when the incident began, tried to break up the fight. It ended
when Appellant fled the residence.
Shortly thereafter, the police arrived and Mr. Hampton pointed
out and identified Appellant, who was sitting on the steps of his
residence. Mr. Hampton went to a nearby hospital, was admitted
and spent seven days recuperating from the injuries suffered
during the attack, which included broken ribs and a collapsed lung.
Appellant was arrested and charged.
Commonwealth v. Lebron, 97 EDA 2017, 2018 WL 3133203, at *1 (Pa.
Super. June 27, 2018) (unpublished memorandum) (quoting Trial Court
Opinion, 4/25/17, at 2-3).
On October 6, 2016, the trial court found Appellant guilty of aggravated
assault, possessing an instrument of crime, simple assault, recklessly
endangering another person, burglary, and criminal trespass. On December
16, 2016, the trial court sentenced Appellant to an aggregate term of 10 to
20 years of incarceration.
On June 27, 2018, this Court affirmed Appellant’s judgment of sentence.
See id. On December 28, 2018, our Supreme Court denied Appellant’s
petition for allowance of appeal.
On February 19, 2019, Appellant filed a timely pro se PCRA petition in
which he alleged, inter alia, that Trial Counsel was ineffective for failing to
investigate and call Megan Ross (Ross) as a witness at trial. The PCRA court
appointed counsel, who filed an amended petition that included a request for
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an evidentiary hearing. On December 19, 2019, the PCRA court dismissed
Appellant’s petition without a hearing. This timely appeal followed.1
Appellant presents the following issues for our review:
A. WHETHER THE PCRA COURT ERRED IN NOT GRANTING
RELIEF ON THE PCRA PETITION ALLEGING TRIAL COUNSEL
WAS INEFFECTIVE?
B. THE PCRA COURT ERRED IN DENYING APPELLANT’S PCRA
PETITION WITHOUT AN EVIDENTIARY HEARING ON THE
ISSUE RAISED IN THE AMENDED PCRA PETITION.
Appellant’s Brief at 8.
We review the denial of PCRA relief by “examining whether the PCRA
court’s findings of fact are supported by the record, and whether its
conclusions of law are free from legal error.” Commonwealth v. Busanet,
54 A.3d 35, 45 (Pa. 2012). “Our scope of review is limited to the findings of
the PCRA court and the evidence of record, viewed in the light most favorable
to the party who prevailed in the PCRA court proceeding.” Id.For his first issue, Appellant argues that Trial Counsel was ineffective for
failing to investigate and call Ross as a witness at trial. Appellant alleges that
Ross would have testified that she invited Appellant into Hampton’s residence
and that Hampton started the fight with Appellant. Appellant’s Brief at 16.
____________________________________________
1 The PCRA court did not order Appellant to file a concise statement of errors
complained of on appeal or issue an opinion as provided in Pennsylvania Rule
of Appellate Procedure 1925, presumably because “the reasons for the order
. . . already appear of record.” Pa.R.A.P. 1925(a)(1).
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With respect to ineffective assistance of counsel claims, our Supreme
Court has explained:
It is well-settled that counsel is presumed to have been
effective and that the petitioner bears the burden of proving
counsel’s alleged ineffectiveness. Commonwealth v. Cooper,
941 A.2d 655, 664 (Pa. 2007). To overcome this presumption, a
petitioner must establish that: (1) the underlying substantive
claim has arguable merit; (2) counsel did not have a reasonable
basis for his or her act or omission; and (3) the petitioner suffered
prejudice as a result of counsel’s deficient performance, “that is,
a reasonable probability that but for counsel’s act or omission, the
outcome of the proceeding would have been different.” Id. A
PCRA petitioner must address each of these prongs on appeal.
See Commonwealth v. Natividad, 938 A.2d 310, 322 (Pa.
2007) (explaining that “appellants continue to bear the burden of
pleading and proving each of the Pierce elements on appeal to
this Court”). A petitioner’s failure to satisfy any prong of this test
is fatal to the claim. Cooper, 941 A.2d at 664.
Commonwealth v. Wholaver, 177 A.3d 136, 144 (Pa. 2018) (citations
modified).
Regarding ineffective assistance of counsel claims for the failure to call
a witness at trial, this Court has stated:
When raising a claim of ineffectiveness for the failure to call a
potential witness, a petitioner satisfies the performance and
prejudice requirements of the [ineffective assistance of counsel]
test by establishing 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.
Prejudice in this respect requires the petitioner to “show how the
uncalled witnesses testimony would have been beneficial under
the circumstances of the case.” Therefore, the petitioner’s burden
is to show that testimony provided by the uncalled witnesses
“would have been helpful to the defense.”
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Commonwealth v. Selenski, 228 A.3d 8, 16 (Pa. Super. 2020) (citations
omitted).
Here, Appellant has failed to meet the ineffectiveness of counsel
requirements recited in Selenski, supra. Our review of the record reveals
no evidence indicating that Ross was willing or available to testify at trial on
behalf of Appellant. There is no certification in the record that demonstrates
Ross was available and willing to testify, or describes the substance of Ross’s
testimony had she testified. Therefore, because Appellant plainly failed to
satisfy the criteria for establishing an ineffectiveness claim for the failure to
call a witness, we conclude that Appellant’s first issue lacks merit. See
Wholaver, 177 A.3d at 144; Selenski, 228 A.3d at 16.
For his second issue, Appellant argues that the PCRA court erred in
dismissing his petition without an evidentiary hearing. We recognize:
[T]he 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 any further proceedings.” Pa.R.Crim.P.
909(B)(2). “[T]o 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.” Commonwealth v.
D’Amato, 856 A.2d 806, 820 (Pa. 2004).
Commonwealth v. Hanible, 30 A.3d 426, 452 (Pa. 2011).
Our review discloses that Appellant has failed to assert a genuine issue
of material fact, which, if true, would entitle him to relief. Under the PCRA,
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“[w]here a petitioner requests an evidentiary hearing, the petition shall
include a certification signed by each intended witness stating the witness’s
name, address, date of birth and substance of testimony and shall include any
documents material to that witness’s testimony.” 42 Pa.C.S.A. §
9545(d)(1)(i). As stated above, Appellant has not produced a certification
signed by Ross setting forth any of the aforementioned information. Thus,
there is no evidence that Ross was available to testify at trial on behalf of
Appellant. Accordingly, the PCRA court properly determined that there was
no genuine issue of material fact necessitating an evidentiary hearing.
In sum, Appellant’s issues lack merit because Appellant has failed to
meet the threshold requirements necessary to raise an issue of material fact
and prove prejudice. As the Commonwealth has observed, “[Appellant’s]
failure to raise a genuine issue of material fact overlaps with and confirms his
failure to demonstrate prejudice.” Commonwealth Brief at 10, citing
Commonwealth v. Baumhammers, 92 A.3d 708, 725 (Pa. 2014) (“the
underlying-merit and prejudice prongs of the [ineffective assistance of
counsel] test logically overlap.”).
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/26/20
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