Com. v. Boddie, A.

J-S38030-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ALFONSO BODDIE, :
:
Appellant : No. 3120 EDA 2018
Appeal from the PCRA Order Entered October 17, 2018
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0000248-2015
BEFORE: OTT, J., DUBOW, J., and COLINS*, J.
MEMORANDUM BY DUBOW, J.: FILED OCTOBER 25, 2019
Appellant, Alfonso Boddie, appeals from the October 17, 2018 Order
dismissing as meritless his first Petition for relief filed pursuant to the Post
Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-9546, challenging the
effectiveness of his trial and appellate counsel. After careful review, we affirm.
On direct appeal, we summarized the facts underlying Appellant’s
convictions as follows:
[At Appellant’s bench trial, the victim] testified that in the early
morning hours of October 25, 2014, at approximately 12:30 a.m.,
she left her apartment, in the City and County of Philadelphia,
intending to go to her brother's house in another part of the city.
She left after an argument with her husband and without any
money. As she approached the 4400 block of Frankford Ave, she
encountered a woman who offered to help her find a ride and who,
a short while later, introduced her to [Appellant] who offered to
take her to her brother's house.
[Appellant] appeared to be respectful and to be nonthreatening,
so [the victim] accompanied [Appellant] up to his apartment,
where they talked and she drank a beer. At approximately 2:00
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* Retired Senior Judge assigned to the Superior Court.
J-S38030-19
a.m. they drove to two separate locations looking to purchase
more beer. They returned at approximately 3:30 a.m. with a few
beers and a water bottle containing a pink liquid. She went up to
[Appellant]'s apartment and drank more beer.
A short while after returning, [Appellant] became angry when he
couldn't find the water bottle. Attempting to calm him down[, the
victim] turned on the radio, to no avail. She testified that at this
point [Appellant] grabbed her and started pulling her towards the
bedroom. Stalling for time, she persuaded him to let her go into
the kitchen to wash her hands where she found a knife which she
put in her pants and returned to the couch. She testified that
[Appellant] then pulled her onto the bed, she told him; “No, I don't
want to do this.” He then started to remove her clothes and “put
his penis in [her].” She also testified that although she attempted
to fight [Appellant] off, he got further up on her and started to
choke her in an attempt to further subdue her.
She told [Appellant] that she had to go to the bathroom, and
instead she fled down the stairs. [Appellant], grabbing her by her
hair, caught her at the top of the stairs, whereupon, she turned
around and started stabbing him. When [Appellant] loosened his
grip, she dropped the knife and fled naked out into the street.
Mr. Thomas Redstone–Brophy testified that he is employed as a
sexual assault nurse examiner at the Philadelphia Sexual Assault
Response Center and, that as part of his duties, he examined [the
victim] that same day, at approximately 12:45 p.m. As part of his
examination, he took pictures of her neck showing bruising, which
he testified was consistent with strangulation.
Commonwealth v. Boddie, No. 3734 EDA 2015 (Pa. Super. February 28,
2017) (unpublished memorandum).
On January 15, 2014, after a bench trial, the trial court found Appellant
guilty of Rape, Indecent Assault, Sexual Assault, and Unlawful Restraint. On
October 15, 2015, the trial court sentenced Appellant to an aggregate term of
7 to 15 years’ incarceration. Appellant filed a timely Post-Sentence Motion,
which the trial court denied on November 25, 2015. On December 3, 2015,
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Appellant timely appealed, and on February 28, 2017, this court affirmed
Appellant’s Judgment of Sentence. Id. Appellant did not seek allocator in the
Supreme Court of Pennsylvania.
On June 16, 2017, Appellant filed a timely pro se PCRA Petition. The
PCRA court appointed counsel, and on February 20, 2018, Appellant filed an
Amended PCRA Petition, asserting, inter alia, ineffective assistance of counsel.
On October 17, 2018, the PCRA court dismissed Appellant’s Petition as
meritless.1
Appellant timely appealed. Both Appellant and the PCRA Court complied
with Pa.R.A.P. 1925.
Appellant raises the following issues for our review:
1. Whether the court erred in denying [] Appellant’s PCRA
[P]etition without an evidentiary hearing on the issues raised
in the [A]mended PCRA Petition regarding trial counsel’s
ineffectiveness.
2. Whether the court erred in not granting relief on the PCRA
[P]etition alleging counsel was ineffective?
Appellant’s Br. at 8.
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1 Our review of the record reveals that the PCRA court did not hold a hearing
on the Amended PCRA Petition. We acknowledge that the PCRA court failed
to provide Appellant the mandatory Pa.R.Crim.P. 907 Notice of its intent to
dismiss the Petition without a hearing. However, Appellant has not challenged
this on appeal and, thus, the issue is waived. See Commonwealth v.
Taylor, 65 A.3d 462, 468 (Pa. Super. 2013) (“The failure to challenge the
absence of a Rule 907 notice constitutes waiver.”)
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“Our standard of review of a PCRA court’s dismissal of a PCRA petition
is limited to examining whether the PCRA court’s determination is supported
by the record evidence and free of legal error.” Commonwealth v. Root,
179 A.3d 511, 515-16 (Pa. Super. 2018) (citation omitted). This Court grants
great deference to the findings of the PCRA court if the record supports them.
Commonwealth v. Boyd, 923 A.2d 513, 515 (Pa. Super. 2007). We give no
such deference, however, to the court’s legal conclusions. Commonwealth
v. Ford, 44 A.3d 1190, 1194 (Pa. Super. 2012).
A PCRA petitioner is not automatically entitled to an evidentiary
hearing. Commonwealth v. Jones, 942 A.2d 903, 906 (Pa. Super. 2008).
“[I]f the PCRA court can determine from the record that no genuine issues of
material fact exist, then a hearing is not necessary.” Id. (citation omitted).
“With respect to the PCRA court’s decision to deny a request for an evidentiary
hearing, or to hold a limited evidentiary hearing, such a decision is within the
discretion of the PCRA court and will not be overturned absent an abuse of
discretion.” Commonwealth v. Mason, 130 A.3d 601, 617 (Pa. 2015).
When the PCRA court denies a petition without an evidentiary hearing, we
“examine each issue raised in the PCRA petition in light of the record certified
before it in order to determine if the PCRA court erred in its determination that
there were no genuine issues of material fact in controversy and in denying
relief without conducting an evidentiary hearing.” Commonwealth v.
Khalifah, 852 A.2d 1238, 1240 (Pa. Super. 2004) (citation omitted).
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In his Amended PCRA Petition and in his Brief, Appellant claims that his
trial counsel was ineffective for failing to: 1) seek reconsideration of his
sentence; 2) investigate, interview, and call witnesses to testify at trial; 3)
present character witnesses at sentencing; and 4) “accept” a mistrial.
Amended PCRA Petition, 2/20/18, at 3, ¶ 19; Appellant’s Br. at 16-21, 23-24.
Appellant also claims that appellate counsel was ineffective for failing to
challenge the weight of the evidence. Amended PCRA Petition, 2/10/18, at 3,
¶ 19; Appellant’s Br. at 21-23.
We presume counsel is effective. Commonwealth v. Cox, 983 A.2d
666, 678 (Pa. 2009). To overcome this presumption, a petitioner must
establish that: (1) the underlying claim has arguable merit; (2) counsel lacked
a reasonable basis for his act or omission; and (3) petitioner suffered actual
prejudice. Commonwealth v. Treiber, 121 A.3d 435, 445 (Pa. 2015). In
order to establish prejudice, a petitioner must demonstrate “that there is a
reasonable probability that, but for counsel’s error or omission, the result of
the proceeding would have been different.” Commonwealth v. Koehler, 36
A.3d 121, 132 (Pa. 2012) (citation omitted). A court will deny the claim if the
petitioner fails to meet any one of these prongs. Commonwealth v. Jarosz,
152 A.3d 344, 350 (Pa. Super. 2016).
In his first averment, Appellant claims that trial counsel was ineffective
for failing to file a motion seeking reconsideration of his sentence. Amended
PCRA Petition, 2/20/18, at 3, ¶ 19(A). Appellant argues that the sentencing
court erred when it failed to consider the relevant sentencing factors when
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imposing Appellant’s “harsh and unreasonable” sentence, despite the fact that
the sentencing court issued a sentence within the sentencing guidelines. See
Id. at 12-13.
When asserting that trial counsel is ineffective for failing to file a motion
for reconsideration of sentence, the petitioner must prove actual prejudice.
Commonwealth v. Reaves, 923 A.2d 1119, 1131–32 (Pa. 2007). To
demonstrate prejudice, a petitioner must plead and prove that a motion to
reconsider sentence, if filed, would have led to a “different and more favorable
outcome[,]” namely, “if counsel’s objection secured a reduction of his
sentence.” Id.Instantly, the PCRA court concluded that Appellant failed to plead and
prove that trial counsel’s failure to file a motion to reconsider sentence
prejudiced Appellant. We agree.
The trial court noted that it sentenced Appellant “only on the [R]ape
charge to a period of confinement of 7 to 15 years, clearly within the lower
range of the guidelines” and concluded that Appellant’s “sentence was
reasonable under the circumstances and had [Appellant] filed a motion for
reconsideration, the [c]ourt would have denied it.” PCRA Ct. Op., filed
11/15/18, at 7. Appellant fails to demonstrate that a motion for
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reconsideration would have secured a reduction in his guideline sentence, and,
thus, Appellant failed to meet the prejudice prong of the ineffectiveness test.2
Appellant next avers that trial counsel was ineffective when he failed to
investigate, interview, and call witnesses to testify at trial. Id. at 3, ¶ 19(B).
Appellant baldly asserts, without citation to the record or certifications from
trial counsel or any potential witnesses, that trial counsel failed to investigate,
interview, and call on-scene witnesses that would have been beneficial to his
defense, including a “black woman” on the street corner and “[p]aramedics[.]”
Id. at 13.
Our Supreme Court has explained, “failing to interview a witness is
distinct from failure to call a witness to testify.” Commonwealth v. Dennis,
950 A.2d 945, 960 (Pa. 2008). Moreover, “where there is a limited amount
of evidence of guilt, it is per se unreasonable not to attempt to investigate
and interview known eyewitnesses in connection with defenses that hinge on
the credibility of other witnesses.” Id. (emphasis in original). However, the
petitioner still has the burden to plead and prove that such an omission is
prejudicial. Id.____________________________________________
2 Moreover, Appellant’s single-sentence assertion in his Amended PCRA
Petition that “there was no ‘reasonable basis’ for counsel not to file a timely
motion to reconsider the Petitioner’s sentence” fails to meet the second prong
of the ineffectiveness test and is, likewise, fatal to his claim. See Amended
PCRA Pet., 2/20/18, at 13.
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When a petitioner raises a claim of failure to call a potential witness, the
petitioner must establish 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.
Commonwealth v. Johnson, 966 A.2d 523, 536 (Pa. 2009). To satisfy the
prejudice prong of this analysis, a defendant “must show how the uncalled
witnesses’ testimony would have been beneficial under the circumstances of
the case.” Commonwealth v. Gibson, 951 A.2d 1110, 1134 (Pa. 2008)
(citations omitted).
The trial court concluded that Appellant failed to establish that the
proposed witnesses actually existed or that their testimony would have an
effect on the outcome of the trial. PCRA Ct. Op. at 8. We agree. As stated
above, Appellant did not provide the trial court or this Court with certifications
indicating that the putative witnesses were available and willing to testify, that
counsel knew of their existence, and verifying the substance of their
testimony. Appellant, thus, fails to meet his burden to plead and prove that
trial counsel was ineffective.
Appellant next contends that trial counsel was ineffective for failing to
present character witnesses at sentencing. Amended PCRA Pet., 2/20/18, at
3, ¶ 19(D).
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For this claim, Appellant does provide nine potential witness affidavits
attesting to his good reputation in the community and averring that each
witness existed, each witness was available, and each witness was willing to
testify for the defense. See id. at Appendix A. However, aside from a bald
assertion that “counsel did not call any of the character witnesses that
petitioner requested be called at sentencing[,]” Appellant did not plead and
prove that counsel knew or, or should have known of, the existence of the
witnesses. See id. at 16. Moreover, Appellant, who received a guideline
sentence, fails to plead and prove what, if any, prejudice he suffered because
of trial counsel failing to call the nine character witnesses. Finally, the PCRA
court opined, “given the seriousness of his crime, these statements . . . would
have had no impact on his sentence.” PCRA Ct. Op. at 8. Appellant, once
again, fails to meet his burden to plead and prove that trial counsel was
ineffective.
Appellant next contends that trial counsel was ineffective for failing “to
accept a mistrial when one was offered by the [c]ourt after the [Assistant
District Attorney (“ADA”)] introduced prior bad acts to the judge.” Amended
PCRA Pet., 2/20/18, at 19. Appellant avers that he did not understand the
ramifications of the ADA advising the court of a prior conviction prior to trial.
Id. at 20. This claim is meritless.
Our review of the record reveals that at the start of the bench trial, the
ADA advised the court that Appellant might be subject to a second strike rule
due to a prior conviction in 1982. N.T. Trial, 6/26/15, at 9. Appellant’s
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counsel objected and requested that the trial court recuse itself. Id. The trial
court colloquied Appellant explaining the significance of his counsel’s
objections, and offered to declare a mistrial. Id. at 9-11. After Appellant and
his counsel engaged in discussion off the record, Appellant’s counsel informed
the court that Appellant wished to “waive the issue” and continue with the
scheduled trial. Id. at 12. The trial court stated for the record, “It doesn’t
matter. It really had no impact on – this case stands by itself. I mean, he
either did this or he didn’t do it. The fact that – what’s that, over thirty years
ago? Yeah, so what?” Id. at 12.
The PCRA court concluded that Appellant failed to “establish that he was
prejudiced by agreeing to proceed to trial.” PCRA Ct. Op. at 13. We agree.
In his Amended PCRA Petition, Appellant proffered nothing to the PCRA
court to refute his on-record agreement to proceed to trial and fails to explain
how or why he was prejudiced by his counsel’s actions. Appellant merely
states, “it is clear from the above that counsel’s actions were deficient and
that Petitioner was prejudiced by counsel’s performance in this case.”
Amended PCRA Pet., 2/20/18, at 20. Without demonstrating prejudice,
Appellant fails to meet his burden to plead and prove that trial counsel was
ineffective.
Finally, Appellant asserts that appellate counsel was ineffective when he
filed a Post-Sentence Motion asserting that the verdict was against the weight
of the evidence but did not pursue the claim on appeal. Amended PCRA Pet.
at 17-18.
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A claim of appellate counsel ineffectiveness involves concerns unique to
appellate practice. Commonwealth v. Lambert, 797 A.2d 232, 244 (Pa.
2001). “Arguably meritorious claims may be omitted in favor of pursuing
claims which, in the exercise of appellate counsel's objectively reasonable
professional judgment, offer a greater prospect of securing relief.” Id.(citation omitted). The process of focusing on arguments that are most likely
to prevail is not “evidence of incompetence,” but, rather, “is the hallmark of
effective appellate advocacy.” Id. (citation omitted).
It is well-settled that “[t]he weight of the evidence is 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. Talbert,
129 A.3d 536, 545 (Pa. Super. 2015) (citation omitted). “In order for a
defendant to prevail on a challenge to the weight of the evidence, the evidence
must be so tenuous, vague and uncertain that the verdict shocks the
conscience of the court. Id. at 546 (citation and internal quotation marks
omitted).
The PCRA court concluded that Appellant’s underlying claim lacked
arguable merit: “[t]he complainant’s testimony was clear and convincing;
establishing the elements of the charge of rape. After a careful review of the
record, the Court finds that, had appellate counsel challenged the complaint’s
credibility on appeal, there is little likelihood that he would have prevailed.”
PCRA Ct. Op. at 11. Our review of the record supports the PCRA court’s
findings.
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Moreover, Appellant fails to demonstrate, or even address, whether
appellate counsel’s decision not to pursue this claim on appeal lacked a
reasonable basis. Accordingly, this ineffectiveness claim fails.
In conclusion, we have examined each claim of ineffective assistance of
counsel raised in the Amended PCRA Petition and have determined that there
were no genuine issue of material fact in controversy. Accordingly, the PCRA
court did not abuse its discretion when it denied PCRA relief without
conducting an evidentiary hearing. See Khalifah, 852 A.2d at 1240.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/25/19
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