Com. v. Scale, T.

J-S80023-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
TYREK D. SCALE, :
:
Appellant : No. 1206 EDA 2018
Appeal from the PCRA Order March 29, 2018
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0001230-2013
BEFORE: BENDER, P.J.E., BOWES, J., and NICHOLS, J.
MEMORANDUM BY BOWES, J.: FILED JUNE 11, 2019
Tyrek D. Scale appeals from the order that dismissed without a hearing
his petition filed pursuant to the Post Conviction Relief Act (“PCRA”). We
affirm.
Appellant, along with his co-conspirator, Deshawn Newman, was
convicted of first-degree murder, conspiracy, and other crimes in relation to
the shooting death of Wali Patrick. Relevant to the issues stated by Appellant
in this appeal, witnesses at trial included John Curry, Pamela Hayward, and
Khiry Hayward. The Haywards, relatives of the decedent, indicated that the
decedent had been in a fight with someone named Fees earlier in the day on
the date of the murder. Mr. Curry saw Appellant and Newman get out of a
white Suzuki with a handicap license plate and walk towards the decedent’s
home, heard four gunshots, and saw Appellant and Newman return to the car,
which sped away. Mr. Curry called 911, the police located the Suzuki, and a
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high-speed chase ensued, concluding when the Suzuki crashed, and Appellant
exited the vehicle and fled on foot after dropping what appeared to be a
firearm. Mr. Curry also went to the scene of the crash and identified Appellant,
Newman, and the Suzuki. DNA evidence obtained from the steering wheel of
the Suzuki matched Appellant’s DNA. Ballistic evidence showed that the two
firearms recovered from the scene were involved in the shooting of the
decedent.
Following his convictions, Appellant was sentenced to life imprisonment
without the possibility of parole, this Court affirmed the judgment of sentence
on direct appeal, and our Supreme Court declined discretionary review.
Commonwealth v. Scale, 156 A.3d 353 (Pa.Super. 2016) (unpublished
memorandum), appeal denied, 165 A.3d 902 (Pa. 2017). Appellant filed a
timely pro se PCRA petition, counsel was appointed, and an amended petition
stating verbatim the same nine claims of ineffective assistance of counsel
raised in the pro se petition was filed. The PCRA court issued notice of its
intent to dismiss the petition without a hearing pursuant to Pa.R.Crim.P. 907.
In response, Appellant filed a counseled supplemental petition raising
additional claims. The PCRA court dismissed the petition, and filed an opinion
explaining its reasoning. This timely appeal followed.1
Appellant presents the following questions for our review:
____________________________________________
1 The PCRA court did not direct Appellant to file a statement of errors
complained of on appeal, and none was filed.
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A. Whether counsel was ineffective for failing to move to
suppress the prejudicial and suggestive out-of-court “one man”
show-up and the unreliable in-court identification as the product
of suggestion by police and due to the witness[’s] lack of
opportunity to observe[.]
B. Whether counsel was ineffective for failing to object and
move for a mistr[i]al where the trial court on multiple occasions
engages in improper examination of witnesses/improperly
answering or witnesses/and disparaging the defense including
the:
(1) failure to object and request a mistrial upon the
introduction of a purported fight earlier in the day with an
unknown person (a.k.a. Fees), and/or seeking missing
witness/adverse inference instruction specifically relating to
the unknown witness and/or the purported fight and the
failure to move for a mistr[i]al when the Appellant was
deprived the opportunity to confront witness Fees and/or
the unknown fight participants;
(2) failure to object to the prejudicial testimony and
misleading characterization by the prosecutor relating to the
Appellant and deceased living in same neighborhood, with
an inference that said shooting was a neighborhood dispute;
(3) failure to object to the insufficient colloquy and
answer to said colloquy relating to the Appellant’s right to
testify, where the Appellant’s response was “unresponsive”
and he did not voluntarily waive his right to testify;
(4) failure to object to the introduction of the hearsay
testimony of the medical examiner relating to the toxicology
report and results/conclusions, wherein depriving the
Appellant of his right to confront under both the
Pennsylvania and United States constitution.
C. Whether counsel was ineffective for failing to conduct an
inappropriate [sic] investigation including the failure of counsel to
present evidence/challenges to lack of gunshot residue on the
Appellant’s clothing, demonstrating through forensics the lack of
DNA and/or fingerprints, and challenging the ballistics report at
second trial when the weapon was in such bad shape it could not
be tested in first trial?
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Appellant’s brief at 5 (unnecessary capitalization omitted).
We begin with the principles applicable to our review. “Our standard of
review regarding a PCRA court’s order is whether the determination of the
PCRA court is supported by the evidence of record and is free of legal error.
The PCRA court’s findings will not be disturbed unless there is no support for
the findings in the certified record.” Commonwealth v. Garcia, 23 A.3d
1059, 1061 (Pa.Super. 2011). Further, “[i]t is an appellant’s burden to
persuade us that the PCRA court erred and that relief is due.”
Commonwealth v. Miner, 44 A.3d 684, 688 (Pa.Super. 2012).
Appellant’s claims concern allegations that prior counsel rendered
ineffective assistance. Counsel is presumed to be effective, and a PCRA
petitioner bears the burden of demonstrating otherwise. Commonwealth v.
Becker, 192 A.3d 106, 112 (Pa.Super. 2018). To do so, the petitioner must
plead and prove (1) the legal claim underlying his ineffectiveness claim has
arguable merit; (2) counsel’s chosen course lacked a reasonable basis
designed to effectuate the petitioner’s interests; and (3) prejudice resulted.
Id. The failure to establish any prong of the test is fatal to the claim. Id. at
114.
It is well established that “[b]oilerplate allegations and bald assertions
of no reasonable basis and/or ensuing prejudice cannot satisfy a petitioner’s
burden to prove that counsel was ineffective.” Commonwealth v.
Sandusky, 203 A.3d 1033, 1044 (Pa.Super. 2019) (cleaned up). Rather,
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concerning counsel’s lack of a reasonable basis, the petitioner must show that
“an alternative not chosen offered a potential for success substantially greater
than the course actually pursued.” Commonwealth v. Koehler, 36 A.3d
121, 132 (Pa. 2012). In order to satisfy the prejudice prong, “the petitioner
must show that there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.
A reasonable probability is a probability sufficient to undermine confidence in
the outcome of the proceeding.” Commonwealth v. King, 57 A.3d 607, 613
(Pa. 2012).
The ineffective-assistance-of-counsel claims pled in Appellant’s petition,
amended petition, and supplemental petition are presented therein in the
same manner as he has presented them to this Court. As such, the
allegations, at best, contain unsubstantiated averments of underlying claims
of legal merit. At no point did Appellant present the PCRA court with
developed allegations that counsel’s chosen course lacked a reasonable basis
or that the result of the proceeding would have been different had counsel
acted as Appellant now claims he should have. Indeed, as the PCRA court
noted in its opinion dismissing the petition, Appellant utterly failed “to support
his claims with case law or supporting allegations of material fact.” PCRA
Court Opinion, 3/29/18, at 6. Even in his appellate brief, prejudice assertions,
when present, are boilerplate, and do not support a finding that the outcome
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of the proceedings at issue would have been different had counsel chosen a
different course.
As such, the PCRA court properly dismissed Appellant’s petition. See,
e.g., Commonwealth v. Steele, 961 A.2d 786, 797 (Pa. 2008), abrogated
on other grounds sub nom, Pena–Rodriguez v. Colorado, 137 S. Ct. 855(2017) (“[W]here Appellant has failed to set forth all three prongs of the
ineffectiveness test and meaningfully discuss them, he is not entitled to relief,
and we are constrained to find such claims waived for lack of development.”);
Commonwealth v. McDermitt, 66 A.3d 810, 813-14 (Pa.Super. 2013)
(affirming dismissal of claims of ineffective assistance of counsel where, inter
alia, allegations in petition did not explain specifics of underlying claim or
establish prejudice).
Further, a mere cursory examination of Appellant’s purported claims of
arguable merit reveal them to be baseless. For example, he contends counsel
was ineffective in failing to file a motion to suppress Mr. Curry’s out-of-court
identification, as well as his subsequent in-court identification, when
suppression of the identifications was sought and litigated by counsel.
See Omnibus Pretrial Motion, at ¶¶ 7-10; PCRA Court Opinion, 3/29/18, at 7.
Likewise, the record reveals that a thorough colloquy of Appellant was
conducted before the defense rested and that Appellant clearly indicated that
he did not want to take the stand in his own defense. See N.T. Trial, 4/17/15,
at 12-14.
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Hence, a review of the petition, in conjunction with the PCRA court’s
March 29, 2018 opinion accompanying its dismissal, reveals no abuse of
discretion on the part of the trial court. Appellant has failed to carry his burden
of convincing this Court that the PCRA court erred and that relief is due.
Miner, supra at 688. Therefore, we affirm the order dismissing Appellant’s
PCRA petition.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/11/2019
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