Com. v. Smith, R.

J-S31038-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
RICKY DAVID SMITH, :
:
Appellant : No. 266 EDA 2022
Appeal from the PCRA Order Entered January 11, 2022
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0002026-2017
BEFORE: BOWES, J., NICHOLS, J., and STEVENS, P.J.E.*
MEMORANDUM BY STEVENS, P.J.E.: FILED OCTOBER 5, 2022
Ricky David Smith appeals from the January 11, 2022 order dismissing
his petition filed pursuant to the Post Conviction Relief Act (“PCRA”), 42
Pa.C.S.A. §§ 9541-9546. After careful review, we affirm.
The PCRA court summarized the relevant facts of this case as follows:
At approximately 4:30 P.M. on March 2, 2016,
Appellant, an inmate at Curran-Fromhold Correctional
Facility (hereinafter “CFCF”'), entered a designated
officers’ area while Corrections Officer Jaimie Harris
(hereinafter “Officer Harris”) completed inmate
discharges. Appellant proceeded to move into the
nearby phone room before returning to the officers’
area, at which point he positioned himself with his foot
propped up on a commissary box, while slightly less
than one foot away from Officer Harris.
Officer Harris testified that Appellant then placed his
hands in the front of his pants and exposed his
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* Former Justice specially assigned to the Superior Court.
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genitals to her. The situation escalated, leading
Officer Harris to lock Appellant in the area for his own
protection, as other inmates had begun reacting to the
confrontation and “getting rowdy.” Throughout this
interaction, Officer Harris repeatedly demanded that
Appellant stop exposing himself to her and stop using
obscene language.
Officer Harris subsequently walked Appellant back to
his cell. Approximately halfway to the cell, Appellant
abruptly stopped and resisted officer efforts.
Appellant moved close to Officer Harris, at which point
she turned to get help from her partner, Officer
Langdon. Officer Harris then felt a sharp blow to the
left side of her face, near the corner of her mouth and
under her nasal cavity. Officer Harris testified that the
resulting wound “started pouring blood,” and that
“you could stick your finger through the cut” and move
it back and forth. Officer Harris confirmed that
Appellant was the person who wounded her, but she
could not be certain whether or not Appellant had a
weapon in his hand when, he struck her. She did
indicate that she could feel her skin tearing.
Following the blow from Appellant, Officer Harris
turned and struck Appellant in the face. She then
watched Appellant, while gripping his own face, enter
another inmate’s cell and begin to wash the blood
from his hands. It is unclear whether the blood on
Appellant’s hands carne from Officer Harris’ wound or
his own. Officer Harris was taken for medical
treatment at the prison. The wound was so severe
that medical staff on site were unable to stop the
bleeding. Officer Harris was subsequently transported
to Erie Torresdale Hospital for emergency care.
Due to the severity of the injury, Officer Harris
underwent plastic surgery the following morning of
March 3, 2016, at approximately 6:00 A.M. The initial
procedure required thirty-five stitches. A second
surgery had to be performed on January 11, 2017.
Despite the plastic surgeries, Officer Harris was left
with a visible ¾-inch scar, which runs from the inside
of her lip to her nostril. Officer Harris now suffers from
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numbness on the left side of her face due to nerve
damage resulting from this injury. She also
experiences twitching, which requires her to drink
with a straw and eat using the right side of her mouth.
PCRA court opinion, 3/16/22 at 2-3 (citations to notes of testimony omitted).
The relevant procedural history of this case, as gleaned from the
certified record, is as follows: On May 15, 2018, Appellant waived his right to
a jury and proceeded to a bench trial. That same day, Appellant was found
guilty of aggravated assault, simple assault, indecent exposure, and recklessly
endangering another person.1 On July 5, 2018, Appellant was sentenced to
an aggregate term of 4 to 8 years’ imprisonment.2
On January 24, 2020, a panel of this Court affirmed Appellant’s
judgment of sentence. See Commonwealth v. Smith, 226 A.3d 652(Pa.Super. 2020), appeal denied, 236 A.3d 1037 (Pa. 2020). Our Supreme
Court denied Appellant’s petition for allowance of appeal on June 15, 2020.
Id.On August 4, 2020, Appellant filed a timely pro se PCRA petition and
Peter Alan Levin, Esq. (hereinafter, “PCRA counsel”) was appointed to
represent him. PCRA counsel filed an amended petition on Appellant’s behalf
on March 18, 2021. Thereafter, on August 24, 2021, the PCRA court provided
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1 18 Pa.C.S.A. §§ 2702(a), 2701(a), 3127(a), and 2705, respectively.
2 Appellant was represented at his waiver trial by Joel Krantz, Esq.
(hereinafter, “trial counsel”).
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Appellant with notice of its intention to dismiss his petition without a hearing,
pursuant to Pa.R.Crim.P. 907(1). Appellant did not respond to the PCRA
court’s Rule 907 notice. On January 11, 2022, the PCRA court dismissed
Appellant’s petition without a hearing and permitted PCRA counsel to
withdraw.
The record, however, reflects that PCRA counsel never filed a motion to
withdraw. Thereafter, on January 19, 2022, PCRA counsel filed a notice of
appeal on Appellant’s behalf. On March 1, 2022, this Court issued an order
directing the PCRA court to clarify Appellant’s representation status. On March
7, 2022, the PCRA court entered an order reappointing PCRA counsel to
represent Appellant on appeal.3
Appellant raises the following issues for our review:
I. Whether the PCRA court erred in denying
Appellant’s PCRA petition without an evidentiary
hearing on the issues raised in the amended
PCRA petition?
II. Whether the PCRA court was in error in not
granting relief on the issue that counsel was
ineffective for the following reasons?
A. Counsel was ineffective for failure to file a
motion for reconsideration of sentence.
B. Counsel was ineffective for failing to file a
post[-]verdict motion that the verdict was
against the weight of the evidence.
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3 Appellant and the PCRA court have complied with Pa.R.A.P. 1925.
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Appellant’s brief at 8 (parentheses omitted).
Proper appellate review of a PCRA court’s dismissal of a PCRA petition
is limited to the examination of “whether the PCRA court’s determination is
supported by the record and free of legal error.” Commonwealth v. Miller,
102 A.3d 988, 992 (Pa.Super. 2014) (citation omitted). “This Court grants
great deference to the findings of the PCRA court, and we will not disturb those
findings merely because the record could support a contrary holding.”
Commonwealth v. Patterson, 143 A.3d 394, 397 (Pa.Super. 2016) (citation
omitted). In order to be eligible for PCRA relief, a defendant must plead and
prove by a preponderance of the evidence that his conviction or sentence
arose from one or more of the errors listed at 42 Pa.C.S.A. § 9543(a)(2).
These issues must be neither previously litigated nor waived. 42 Pa.C.S.A.
§ 9543(a)(3).
Appellant first contends that the PCRA court erred in dismissing his PCRA
petition without conducting an evidentiary hearing. Appellant’s brief at 13-
14.
This court has long recognized that there is no absolute right to an
evidentiary hearing. Commonwealth v. Hart, 911 A.2d 939, 941 (Pa.Super.
2006) (citation omitted). When the PCRA court denies a petition without an
evidentiary hearing, as is the case here, 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
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evidentiary hearing.” Commonwealth v. Khalifah, 852 A.2d 1238, 1240
(Pa.Super. 2004). “It is within the PCRA court’s discretion to decline to hold
a hearing if the petitioner’s claim is patently frivolous and has no support
either in the record or other evidence.” Commonwealth v. Wah, 42 A.3d
335, 338 (Pa.Super. 2012) (citations omitted).
Instantly, Appellant contends that an evidentiary hearing was warranted
in this matter because his trial counsel was ineffective for failing to file post-
sentence motions challenging the weight of the evidence and for
reconsideration of his sentence. Appellant’s brief at 15, 17. We disagree.
To prevail on a claim of ineffective assistance of counsel under the PCRA,
a petitioner must establish the following three factors: “first[,] the underlying
claim has arguable merit; second, that counsel had no reasonable basis for
his action or inaction; and third, that Appellant was prejudiced.”
Commonwealth v. Charleston, 94 A.3d 1012, 1020 (Pa.Super. 2014)
(citation omitted), appeal denied, 104 A.3d 523 (Pa. 2014).
[A] PCRA petitioner will be granted relief only when he
proves, by a preponderance of the evidence, that his
conviction or sentence resulted from the [i]neffective
assistance of counsel which, in the circumstances of
the particular case, so undermined the
truth-determining process that no reliable
adjudication of guilt or innocence could have taken
place.
Commonwealth v. Spotz, 84 A.3d 294, 311 (Pa. 2014) (internal quotation
marks omitted; some brackets in original), citing 42 Pa.C.S.A.
§ 9543(a)(2)(ii).
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“[C]ounsel is presumed to be effective and the burden of demonstrating
ineffectiveness rests on appellant.” Commonwealth v. Ousley, 21 A.3d
1238, 1242 (Pa.Super. 2011) (citation omitted), appeal denied, 30 A.3d 487(Pa. 2011).
Upon review, we find that Appellant’s ineffectiveness claims fail because
he failed to satisfy the first and third prongs of the aforementioned test;
namely, that his underlying claims have arguable merit and that he was
prejudiced by trial counsel’s failure to file to file post-sentence motions based
on the weight of the evidence and the discretionary aspects of his sentence.
Our Supreme Court has long recognized that to prove prejudice, a
petitioner must demonstrate that “but for counsel’s deficient stewardship,
there is a reasonable likelihood the outcome of the proceedings would have
been different.” Commonwealth v. Simpson, 66 A.3d 253, 260 (Pa. 2013)
(citation omitted). Thus, a petitioner seeking to establish prejudice for failure
to file post-sentence motions must demonstrate that the trial court would have
granted the motion had it been filed. See e.g., Commonwealth v. Reaves,
923 A.2d 1119, 1131-1132 (Pa. 2007) (holding that whether “counsel can be
deemed ineffective, then, depends upon whether [the defendant] has proven
that a motion to reconsider sentence, if filed…, would have led to a different
and more favorable outcome at [ ] sentencing.”). Additionally, “[c]ounsel will
not be deemed ineffective for failing to raise a claim that has no merit.”
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Commonwealth v. Johnson, 815 A.2d 563, 590 (Pa. 2002) (citation
omitted).
Here, the record reflects that the filing of a post-sentence motion
challenging the weight of the evidence would have been futile because the
trial judge, sitting as factfinder, specifically indicated that it found the
testimony of victim Officer Harris credible, and elected not to believe
Appellant’s version of the events:
[T]he weight of the evidence supported the verdict.
The fact that no video evidence of the incident exists
is immaterial to the issue because Officer Harris’s
identification and testimony are sufficient to place
Appellant at the scene of the injury. Therefore,
Appellant’s post-verdict motion that the verdict was
against the weight of the evidence would have been
denied and Appellant cannot establish relief under the
prejudice prong….
PCRA court opinion, 3/16/22 at 7.
Likewise, we agree with the PCRA court that Appellant failed to
demonstrate actual prejudice on account of trial counsel’s failure to file a
motion for reconsideration challenging the discretionary aspects of his
sentence. As the PCRA court explained in its opinion,
[Appellant] asserts that his sentence should have
been less due to him waiving a jury trial and due to
his mental state. Appellant further claims that this
Court should not have considered the fact that the
victim was a woman for purposes of determining
Appellant’s sentence. The claim is without merit.
Prior to imposing sentence, this Court gave serious
and careful consideration to numerous factors. The
record indicates that this Court had reviewed the
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presentence investigation report and the mental
health evaluation referenced by Appellant in his
Amended PCRA Petition. Further, the record clearly
shows that this Court explicitly stated at the time of
sentencing that it was taking into consideration that
this was a waiver trial. Finally, this Court expressed
that [it] was also taking into consideration the
circumstances that occurred, as well as the fact that
the Complainant in this incident was a woman,
thereby permissibly considering the underlying facts
and the overall effect and nature of the crime.
Appellant has failed to demonstrate how the Court
abused its discretion in issuing its sentence. This
Court considered all relevant factors in issuing its
sentence and therefore, Appellant’s Motion for
Reconsideration of Sentence would have been denied.
Id. at 8-9 (citations and internal quotation marks omitted).
Based on the foregoing, we find that Appellant’s ineffectiveness claims
are frivolous and unsupported by the record. See Wah, 42 A.3d at 338.
Accordingly, we conclude that the PCRA court did not err in dismissing
Appellant’s petition without conducting an evidentiary hearing and affirm its
January 11, 2022 order.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/05/2022
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