Com. v. Holmes, T.

J-S44043-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
TERRY LOUISE HOLMES, :
:
Appellant : No. 3819 EDA 2016
Appeal from the Order entered November 8, 2016
in the Court of Common Pleas of Montgomery County,
Criminal Division, No(s): CP-46-CR-0005569-2012
BEFORE: BENDER, P.J.E., SHOGAN and MUSMANNO, JJ.
MEMORANDUM BY MUSMANNO, J.: FILED JULY 31, 2017
Terry Louise Holmes (“Holmes”) appeals from the Order denying her
first Petition for relief filed pursuant to the Post Conviction Relief Act
(“PCRA”).1 We affirm.
In its Opinion, the PCRA court set forth the facts underlying the instant
appeal, which we adopt for the purpose of this appeal. See PCRA Court
Opinion, 1/26/17, at 1-5.
Briefly, the charges against Holmes arose from a claim of tenant fraud
relevant to Holmes’s residence in public housing administered by the
Montgomery County Housing Authority (“MCHA”), and funded by the United
States Department of Housing and Urban Development (“HUD”). It was
alleged that Holmes improperly permitted Craig Holmes, Sr., and Craig
Holmes, Jr., to reside with her and her daughters in public housing, and
1
42 Pa.C.S.A. §§ 9541-9546.
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misrepresented that fact to MCHA. Following a bench trial, Holmes was
convicted of theft by unlawful taking, theft by deception, receiving stolen
property, unsworn falsification to authorities and securing execution of
documents by deception.2 Prior to sentencing, Holmes retained new
counsel. The trial court subsequently sentenced Holmes to three to twenty-
three months of incarceration, followed by five years of probation. This
Court affirmed Holmes’s judgment of sentence. Commonwealth v.
Holmes, 116 A.3d 675 (Pa. Super. 2014) (unpublished memorandum).
Holmes did not petition for allowance of appeal to the Pennsylvania Supreme
Court.
Holmes, through counsel, subsequently filed the instant timely PCRA
Petition, her first. The PCRA court conducted a hearing on Holmes’s Petition.
On July 26, 2016, the PCRA court entered an Order denying the Petition.
However, the following day, upon the agreement of the parties, the PCRA
court vacated its July 26, 2016 Order and reopened the record, “pending
further advice of counsel.” PCRA Court Opinion, 1/26/17, at 6. Holmes,
through counsel, submitted a letter to the Office of the District Attorney and
the trial court, stating that her husband worked for the United States Postal
Service from 2:00 a.m. to 10:30 a.m., with Sundays and Thursdays off. The
PCRA court closed the record.
2
See 18 Pa.C.S.A. §§ 3921(a), 3922(a), 3925(a), 4904(a), 4114(a).
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On November 8, 2016, the PCRA court denied Holmes’s Petition.
Holmes filed a pro se Notice of Appeal, and a pro se entry of appearance
that included the withdrawal of appearance of Holmes’s PCRA counsel. The
PCRA court subsequently appointed counsel to represent Holmes.3
Holmes now presents the following claim for our review:
WHETHER THE PCRA COURT ERRED IN CONCLUDING THAT
[HOLMES] FAILED TO DEMONSTRATE TRIAL COUNSEL’S
INEFFECTIVENESS IN FAILING TO OBTAIN AND PRESENT
EVIDENCE AT TRIAL, WHICH WOULD HAVE CONTRADICTED THE
TESTIMONY OF A KEY COMMONWEALTH WITNESS[,] WHEN
[HOLMES] INFORMED TRIAL COUNSEL OF THE EXISTENCE OF
THE EVIDENCE, AND REQUESTED THAT [COUNSEL] OBTAIN THE
SAME?
Brief for Appellant at 4.
Holmes asserts that the PCRA court improperly denied her relief, based
upon the fact that she did not present the testimony of her trial counsel,
whom she alleged rendered ineffective assistance. Id. at 13. Holmes
contends that the PCRA court disregarded her own testimony at the hearing.
Id. Holmes asserts that at the hearing, she testified that her trial counsel
repeatedly assured her that counsel would obtain the requested information.
Id. When Holmes asked her counsel why he had not obtained the
information, counsel provided no reason. Id. Holmes further asserts that
counsel could have no reasonable basis for failing to present evidence that
3
The PCRA court did not order Holmes to file a Pa.R.A.P. 1925(b) concise
statement of matters complained of on appeal.
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would have contradicted the Commonwealth’s evidence that Craig Holmes,
Sr., was witnessed leaving her apartment. Id.
“In reviewing the denial of PCRA relief, we examine whether the PCRA
court’s determination is supported by the record and free of legal error.”
Commonwealth v. Montalvo, 114 A.3d 401, 409 (Pa. 2015) (citation and
internal quotation marks omitted). The PCRA court’s findings will not be
disturbed unless there is no support for the findings in the certified record.
Commonwealth v. Treadwell, 911 A.2d 987, 989 (Pa. Super. 2006).
In its Opinion, the PCRA court set forth the relevant law, addressed
Holmes’s claim, and concluded that it lacks merit. See PCRA Court Opinion,
1/26/17, at 6-7. We agree with the sound reasoning of the PCRA court, as
set forth in its Opinion, and affirm on this basis with regard to Holmes’s
claim. See id.Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/31/2017
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