Com. v. Ludwig, G.

J-S46012-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
GEORGE LUDWIG :
:
Appellant : No. 3051 EDA 2018
Appeal from the PCRA Order Entered September 18, 2018
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0005747-2010
BEFORE: PANELLA, P.J., OLSON, J., and COLINS, J.*
MEMORANDUM BY PANELLA, P.J.: FILED OCTOBER 22, 2019
Appellant, George Ludwig, appeals from the order denying his petition
filed pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A.
§§ 9541–9546, and dismissing his claims of ineffective assistance of counsel
without a hearing. After careful review, we affirm.
After a bench trial, the trial court convicted Ludwig of robbery and
related offenses arising from Ludwig’s entry into the home of the victim,
Edward R. Engle then age 73, between eleven PM and midnight, on April 8,
2010. Using an object, which either was a handgun or resembled one, Ludwig
took $400 out of the victim’s pocket. See PCRA Court Opinion, 4/15/19, at 2.
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* Retired Senior Judge assigned to the Superior Court.
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At trial, Sharon Smutnik, a family friend of Engle who called him “Uncle,”
testified that shortly before the robbery she had met Ludwig on the street.
Ludwig told her he was sick and needed money. He asked if Engle had any
money. Smutnik testified that she pleaded with Ludwig to leave Engle alone.
However, she did not warn Engle or contact the police.
Smutnik further testified that the next morning, she met up with Ludwig
again. Ludwig told her he had “scored,” robbing Engle of a couple of hundred
dollars.
The court convicted Ludwig of robbery, burglary and possession of an
instrument of crime. The court sentenced him to an aggregate term of not less
than five nor more than ten years of incarceration. After his direct appeal
rights were restored nunc pro tunc, this Court affirmed Ludwig’s judgment of
sentence. Ludwig filed a timely pro se PCRA petition. The PCRA court
appointed counsel, who filed an amended petition. After appropriate notice,
the PCRA court dismissed the petition without a hearing. This timely appeal
followed. Appellant timely filed a court-ordered statement of errors
complained of on appeal. The PCRA court filed an opinion on April 15, 2019.1
See Pa.R.A.P. 1925.
Ludwig presents one over-arching question for our review on appeal:
Did the PCRA Court err when it denied [Ludwig] relief where
[Ludwig] pled, proved and would have been able to further prove
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1 By that time the Honorable William Mazzola, who dismissed the petition, had
retired. The Honorable Shanese I. Johnson authored the Rule 1925(a) opinion.
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at an [e]videntiary [h]earing that he was entitled to relief as the
result of ineffective assistance of counsel?
Appellant’s Brief, at 3.
Ludwig chiefly alleges two claims of ineffectiveness. See id. at 8-13.
First, he asserts that “[t]rial counsel was ineffective for failing to cross-
examine the main Commonwealth witness [Smutnik] to expose her lack of
credibility, past criminal conduct and favorable treatment.” Id. at 8.
Secondly, Ludwig maintains that trial counsel was ineffective for advising him
not to take a negotiated plea, with a sentence of three to six years, because
he was going to win at trial. See id. at 11-12. He maintains he should receive
a new trial or a PCRA hearing to develop evidence of ineffectiveness. We
disagree.
Our standard of review is well-settled.
This Court’s standard of review regarding an order denying
a petition under the PCRA 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.
* * *
In order for Appellant to prevail on a claim of ineffective
assistance of counsel, he must show, by a preponderance of the
evidence, ineffective 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.
Appellant must demonstrate: (1) the underlying claim is of
arguable merit; (2) that counsel had no reasonable strategic basis
for his or her action or inaction; and (3) but for the errors and
omissions of counsel, there is a reasonable probability that the
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outcome of the proceedings would have been different. The
petitioner bears the burden of proving all three prongs of the test.
Commonwealth v. Johnson, 868 A.2d 1278, 1281 (Pa. Super. 2005) (case
citations omitted). “Counsel is presumed effective, and the appellant has the
burden of proving otherwise.” Commonwealth v. D'Collanfield, 805 A.2d
1244, 1246 (Pa. Super. 2002) (citation omitted).
In making assertions of ineffectiveness, we also require that an
offer of proof be made alleging sufficient facts upon which a
reviewing court can conclude that trial counsel may have, in fact,
been ineffective. This is so because we frown upon considering
claims of ineffectiveness of counsel in a vacuum.
Commonwealth v. Durst, 559 A.2d 504, 505 (Pa. 1989) (citation omitted).
Here, both of Ludwig’s claims fail for the same reason: Aside from the
mere bald allegations, he does not offer “any evidence whatsoever” in support
of his issues. PCRA Court Opinion, at 6, 14; see also Commonwealth’s Brief,
at 8 (“Here, defendant failed to proffer any evidence to support his bald
allegations.”). “A claim of ineffective assistance of counsel must be based on
evidence and not merely unsupported allegations.” Commonwealth v.
Bullock, 415 A.2d 1240, 1241 (Pa. Super. 1979).
Ludwig’s reliance on the assertion that evidence of ineffectiveness could
be developed at a future PCRA hearing is misplaced. “With respect to
appellant’s request for an evidentiary hearing, we note that ‘[a]n evidentiary
hearing . . . is not meant to function as a fishing expedition for any possible
evidence that may support some speculative claim of ineffectiveness.’”
Commonwealth v. Jones, 811 A.2d 994, 1003 n.8 (Pa. 2002) (citation
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omitted). To be entitled to a hearing on his petition, Ludwig was required to
raise a genuine issue of material fact that, if decided in his favor, would have
entitled him to relief. See Commonwealth v. Baumhammers, 92 A.3d 708,
726 (Pa. 2014). Ludwig does not meet his burden to raise a genuine issue
material fact for either of his ineffectiveness claims.
First, Ludwig argues trial counsel was ineffective for failing to cross-
examine Smutnik regarding her criminal history. However, Ludwig offers no
more than mere unsupported speculation that Smutnik was a “career
criminal,” Appellant’s Brief, at 6, and may have been an accomplice in the
robbery at issue, who testified against him to obtain lenient treatment for
herself. See id. at 8. In fact, however, as Ludwig concedes, Smutnik was
never even charged in the robbery of Engle. See Appellant’s Brief, at 9.
Beyond bald assertions, Ludwig has not asserted any reason why Smutnik
should have been investigated for this robbery.
Under these circumstances, Ludwig’s assertions fall short of the
necessary level to establish his right to a hearing. Not only do his assertions
fail to raise a tenable claim of arguable, but also fail to raise a triable issue of
prejudice. At a minimum, Ludwig was required to identify some specific
criminal history of Smutnik and explain how its presentation to the jury may
have caused a different verdict. As he did neither, we conclude his first issue
merits no relief.
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Next, Ludwig claims counsel was ineffective for failing to adequately
communicate a plea agreement offered by the Commonwealth. Trial counsel
was required to not only communicate the terms of any plea offer, but also
the risks and benefits of the defendant choosing to accept or reject it. See
Commonwealth v. Copeland, 554 A.2d 54, 60 (Pa. Super. 1988).
However, Ludwig’s brief fails to develop this argument in a meaningful
manner and violates multiple requirements of the Rules of Appellate
Procedure. This argument is not divided into a separate part from his
contention that counsel was ineffective in failing to cross-examine Smutnik.
See Pa.R.A.P. 2119(a). It contains no citation to applicable authorities. See
Pa.R.A.P. 2119(b). Nor does it contain any reference to the record. See
Pa.R.A.P. 2119(c). Ludwig’s argument on this issue consists of approximately
one page.
“When a party’s brief fails to conform to the Rules of Appellate Procedure
and the defects are substantial, this Court may, in its discretion, quash or
dismiss the appeal pursuant to Rule 2101.”
Giant Food Stores, LLC v. THF Silver Spring Development, L.P., 959
A.2d 438, 443 (Pa. Super. 2008) (citing Pa.R.A.P. 2101). Furthermore,
“[w]hen issues are not properly raised and developed in briefs, when the briefs
are wholly inadequate to present specific issues for review[,] a Court will not
consider the merits thereof.” Branch Banking and Trust v. Gesiorski, 904
A.2d 939, 942-943 (Pa. Super. 2006).
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Ludwig’s brief arguably fails to preserve this issue for our review. Even
if it does, however, we conclude Ludwig failed to raise a triable issue of
material fact that would have entitled him to a hearing on this claim. If he has
knowledge of a plea offer from the Commonwealth that trial counsel did not
present to him, it was incumbent upon Ludwig to assert how he learned of it.
In the absence of such an assertion, his claim is mere conjecture and does not
raise a genuine issue of fact. Ludwig’s second issue merits no relief.
Order affirmed.
Judge Colins joins the memorandum.
Judge Olson concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/22/19
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