Com. v. Allshouse, S.

J-A09009-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
SHANE EUGENE ALLSHOUSE :
:
Appellant : No. 936 WDA 2019
Appeal from the PCRA Order Entered May 14, 2019
In the Court of Common Pleas of Jefferson County Criminal Division at
No(s): CP-33-CR-0000258-2016
BEFORE: SHOGAN, J., MURRAY, J., and STRASSBURGER, J.*
MEMORANDUM BY SHOGAN, J.: FILED JUNE 25, 2020
Shane Eugene Allshouse, Appellant, appeals pro se from the May 14,
2019 order of the Jefferson County Common Pleas Court denying his timely
petition filed pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.
§§ 9541–9546. We affirm.
This Court summarized the facts and initial procedural history in our
memorandum addressing Appellant’s direct appeal, as follows:
A jury found [Appellant] guilty of persons not to possess firearms,1
a felony of the second degree, and the trial court imposed a
sentence of five to ten years’ imprisonment.
1 18 Pa.C.S. § 6105(a)(1).
The evidence supporting [Appellant’s] conviction was
summarized by the trial court, as follows:
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
J-A09009-20
[Appellant] had been convicted of aggravated assault
in 2004 and was thus statutorily disqualified from
possessing a firearm, and when Pennsylvania State
Trooper Seth Rupp went out to investigate a reported
suicide at [Appellant’s] residence, [Appellant]
informed him that the rifle the victim had used was
his. ... In addition, ..., [Appellant] admitted both
elements of the offense 18 Pa.C.S. § 6105(a)(1) in
front of the jury, first that he had both possessed and
used the firearm, and also that he had been convicted
of aggravated assault. His only defense was
ignorance of the law, which is not a legally cognizable
defense and which the jury also did not have to
believe as a matter of fact.1
1 Whether or not the jurors believed
[Appellant] had not been told earlier, they
heard that Trooper Rupp had told him
shortly after the shooting that he could
not possess a firearm.
Trial Court Opinion, 4/24/2017, at 1.
As already stated, the jury convicted [Appellant] of persons
not to possess a firearm, and the trial court sentenced him to five
to ten years’ imprisonment. [Appellant] filed a timely post
sentence motion for reconsideration of sentence, which was
denied . . . .
Commonwealth v. Allshouse, 178 A.3d 191, 1899 WDA 2016, *1 (Pa.
Super. filed September 25, 2017) (unpublished memorandum). Appellant
filed a timely appeal, and we affirmed the imposition of the aggravated-range
judgment of sentence. Id.On August 1, 2018, Appellant filed a pro se “Notice of Intent to File a
Pro-Se Motion for Post Conviction Collateral Relief,” followed by a “Motion to
Dismiss Counsel, and Proceed Pro-Se” on August 6, 2018. The PCRA court
appointed counsel on August 7, 2018, and scheduled a hearing for August 31,
-2-
J-A09009-20
2018, regarding Appellant’s request to proceed pro se. Appellant filed a
second “Motion to Dismiss Counsel, and Proceed Pro-Se” on August 17, 2018.
By order dated August 31, 2018, and filed September 7, 2018, the PCRA court,
inter alia, permitted Appellant to proceed pro se and ordered counsel to
withdraw, which he did on September 11, 2018.
Appellant filed a pro se PCRA petition on September 4, 2018, and a
supplemental PCRA petition on September 21, 2018. Appellant requested an
evidentiary hearing on January 22, 2019, which was held on April 29, 2019.
On May 14, 2019, the PCRA court entered an order denying Appellant’s May 6,
2019 request for a rehearing and a separate order denying Appellant’s PCRA
petition. Appellant filed a timely pro se notice of appeal. Both Appellant and
the PCRA court complied with Pa.R.A.P. 1925.
Appellant lists the following issues in his appellate brief, which we
present verbatim:
1. Whether the Lower Court erred in dismissing the Defendant’s
amended petition for post Conviction Collateral Relief?
2. Whether the P.C.R.A. Court erred when it refused to allow the
Appellant to re-convene an evidentiary hearing, due to the Court
Clerk’s failure to return the Court stamped subpoenas for
witnesses?
3. Whether the P.C.R.A. Court completely ignored the Appellant’s
allegations of layered ineffective Assistance of Counsel?
4. Whether Appellant’s statement to the the arresting,
investigative Officer, was unlawfully pursuaded/solicited or
actually voluntarily provided in violation of Miranda.
-3-
J-A09009-20
5. Was Appellant prejudiced by the Commonwealth witness (police
Officer) inappropriately revealed “in Unlawful Possession of a
Firearm,” at trial.
6. Whether Trial/Defense Counsel abandoned the Appellant, when
Counsel failed to properly defend the Appellant by invetigating,
and preenting witnesses.
7. Whether if witnessess for the Appellant, had been introduced
at trial, there would have been a different outcome at trial?
8. Whether the P.C.R.A. Court denied the Appellant a Grazier
hearing?
Appellant’s Brief at 4–4A. Our standard of review is settled:
Our review of a PCRA court’s decision is limited to examining
whether the PCRA court’s findings of fact are supported by the
record, and whether its conclusions of law are free from legal
error.” Commonwealth v. Mason, 634 Pa. 359, 130 A.3d 601,
617 (2015) (citation omitted). We view the record in the light
most favorable to the prevailing party in the PCRA court. Id. We
are bound by any credibility determinations made by the PCRA
court where they are supported by the record. Id. However, we
review the PCRA court’s legal conclusions de novo. Id.Commonwealth v. Staton, 184 A.3d 949, 954 (Pa. 2018).
We do not reach the merits of the issues because Appellant’s pro se
filing is woefully insufficient to meet the requirements of an appellant’s brief
as outlined by our Rules of Appellate Procedure. Appellant’s Brief at 8–12. It
is well settled that the argument portion of an appellate brief must be
developed with pertinent discussion of the issues, including citations to
relevant authority and reference to the record. Pa.R.A.P. 2119(a). See
Commonwealth v. Samuel, 102 A.3d 1001, 1005 (Pa. Super. 2014) (“The
Rules of Appellate Procedure require that appellants adequately develop each
-4-
J-A09009-20
issue raised with discussion of pertinent facts and pertinent authority.”). “It
is not this Court’s responsibility to comb through the record seeking the factual
underpinnings of an appellant’s claim.” Id. at 1005. It is not this Court’s
responsibility to develop an argument for an appellant or scour the record to
find evidence to support one. Commonwealth v. Cannavo, 199 A.3d 1282,
1289 (Pa. Super. 2018).
A panel of this Court offered the following relevant observation
regarding the proper formation of the argument portion of an appellate brief:
In an appellate brief, parties must provide an argument as to each
question, which should include a discussion and citation of
pertinent authorities. Pa.R.A.P. 2119(a). This Court is neither
obliged, nor even particularly equipped, to develop an argument
for a party. Commonwealth v. Williams, 566 Pa. 553, 577, 782
A.2d 517, 532 (2001) (Castille, J., concurring). To do so places
the Court in the conflicting roles of advocate and neutral arbiter.
Id. When an appellant fails to develop his issue in an argument
and fails to cite any legal authority, the issue is waived.
Commonwealth v. Luktisch, 680 A.2d 877, 879 (Pa. Super.
1996).
Commonwealth v. B.D.G., 959 A.2d 362, 371–372 (Pa. Super. 2008).
Appellant’s “argument,” which also is inconsistent and incompatible with
his presentation of the statement of the questions involved, thereby depriving
us of any meaningful way to determine whether his “issues” are properly
identified, is merely a restatement of each issue without any development.
Appellant’s “arguments” consist of broad statements of one or two sentences
that lack any analysis, reference to the record, or coherent explanation.
-5-
J-A09009-20
Additionally, there are other specific abnormalities that represent
noncompliance with our appellate rules, which also constitute waiver. For
example, regarding issue eight, related to a Grazier1 hearing, Appellant has
abandoned any reference to the assertion completely, which also results in
waiver.2 See Commonwealth v. Heggins, 809 A.2d 908, 912 n.2 (Pa.
Super. 2002) (“[A]n issue identified on appeal but not developed in the
appellant’s brief is abandoned and, therefore, waived.”). Issue “B5,” relating
to the sufficiency of the evidence, Appellant’s Brief at 12, was not included in
the statement of the questions involved, and was not stated in Appellant’s
Pa.R.A.P. 1925(b) statement. That issue is waived for those additional
reasons, as well. Commonwealth v. Ivy, 146 A.3d 241, 254 (Pa. Super.
2016) (failure to raise issue in statement of questions involved on appeal
waives issue) (citing Pa.R.A.P. 2116(a)); see also Commonwealth v.
Jones, 191 A.3d 830, 834 (Pa. Super. 2018) (citing Pa.R.A.P. 1925(b)(4)(vii)
(“Issues not included in the Statement and/or not raised in accordance with
the provisions of this paragraph (b)(4) are waived.”).
____________________________________________
1 Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).
2 Moreover, while the certified record lacks a transcript dated August 31,
2018, the PCRA court scheduled a hearing for that date to address Appellant’s
request to proceed pro se, Docket Entry 39, and further, entered an order
dated August 31, 2018, permitting Appellant to proceed pro se. Docket Entry
45.
-6-
J-A09009-20
Thus, for all of these reasons, we conclude that the issues are waived.3
See Commonwealth v. Delvalle, 74 A.3d 1081, 1086–1087 (Pa. Super.
2013) (finding claims waived for failure to develop them meaningfully).
Even if the issues were not waived, we would affirm on the basis of the
trial court’s “Opinion on Defendant’s PCRA Petition,” filed May 14, 2019, and
the order denying Appellant’s “Petition for Evidentiary Re-hearing,” of the
same date, as adopted by the PCRA court in its Pa.R.A.P. 1925(a) opinion filed
July 15, 2019.4
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/25/2020
____________________________________________
3 Furthermore, under Pennsylvania law, pro se defendants are subject to the
same rules of procedure as are represented defendants. Commonwealth v.
Williams, 896 A.2d 523, 534 (2006). “[A]ny person choosing to represent
himself in a legal proceeding must, to a reasonable extent, assume that his
lack of expertise and legal training will be his undoing.” In re Ullman, 995
A.2d 1207, 1212 (Pa. Super. 2010). “Although the courts may liberally
construe materials filed by a pro se litigant, pro se status confers no special
benefit upon a litigant, and a court cannot be expected to become a litigant’s
counsel or find more in a written pro se submission than is fairly conveyed in
the pleading.” Commonwealth v. Blakeney, 108 A.3d 739, 766 (Pa. 2014).
4 In the event of further proceedings in this matter, we direct the parties to
attach copies of the opinions.
-7-
Circulated 06/04/2020 02:54 PM
liN THJE COURT OF COMMON JP'LJEA� OlF JJEJFIB'ER.§ON COUNTY
PlENNSYLVANKA
CRHMXNAL lIUVISION
tCOMMONWJEAlL 'fJHI OJF PENNSYLVANiA
V§, CP-33-CR-258-2016
SHANE ALLSHOUSE
Defendant
OPINION ON DEFENDANT'S PCRA PETITION
The defendant, Shane Allshouse ("Allshouse"), filed a timely prose PCRA petition in
which he alleged a variety of claims implicating Rule 600, his amenability to prosecution, the
Commonwealth's motivation for prosecuting him, his Fifth and Fourteenth Amendment rights,
the legality and appropriateness of his sentence, and trial/appellate counsel's effectiveness.
Having knowingly and voluntarily waived his right to PCRA counsel and to be present in the
courtroom, he appeared pro se via video conference for an evidentiary hearing held April 29,
2019. There he briefly testified on his own behalf and proposed to call Erin Cox, Ashley
Harshberger, Billie Harshberger, and John M. Benanti, Esq. as additional witnesses.
It appearing that the defendant did not properly subpoena his would-be witnesses, none
appeared to testify. The district nonetheless stipulated that the laywitnesses would have testified
consistent with the averments set forth in the Allshouse's "Ex-Parte Motion for an Evidentiary
Hearing." Accordingly, the Court finds that they would have testified that the defendant
exhibited "good will and [a] fatherly character" toward the decedent; that the decedent was
suicidal and mentally ill; that she had attempted to kill herself on prior occasions and likely
would have ultimately succeeded whether or not she had access to his rifle; and that he had
suffered immensely as a result of her suicide. The Commonwealth further stipulated, and thus
the Court finds, that other members of the decedent's family were also suicidal. That testimony
was not first presented to the jury, according to Allshouse, because Attorney Bonanti refused to
call his witnesses.
As alleged in the defendant's Petition, Supplemental Amendment, and Motion, Attorney
Bonanti further failed to investigate or prepare for trial, relying solely on the Commonwealth's
evidence; failed to file a motion to suppress and other unspecified pre- and post-sentencing
motions "as directed by Defendant"; employed "scare tactics" and coerced him into repeating his
fs-J�{i"f !1f:=JWJ;
�-=- .
00 !EJlYfiJ
-5�-
confession 1.0 the jury: failed to object a:1ci request a :-nis�ric.. ·,,·!·ier-. . -..:1e arresting officer testified
that be was in unlawful possessior, of a Iirearn. . : anc that he hac no reasonable basis for any of it.
At the hearing, however. Allshouse said nothing about E oncnti' s performance. focusing almost
exclusively on matters surrounding the decedent s suicide. Asled repeatedly whether he wanted
to say more, he added only that the police never read him his Miranda rights. that the gun the
decedent used to shoot herself was ne ·er in his possession; and that he was rarely at the
residence where the gun was located. He did not embellish any of those statements, though his
brother sought to support the third by showing this jurist the defendant's driver's license. Valid
at the time of the decedent's suicide. it reflected a Dubois address.
Di�cus�ton
Ineffective Assistance of Counsel:
Under the three-prong test delineated in Commonwealth r. Travaglio. 661 A.2d 352 (Pa.
1995). a defendant must demonstrate three things in order to establish an ineffectiveness claim:
l.) That his underlying claim is of arguable merit; 2.) that counsel's action or inaction was not
grounded in any reasonable basis designed to effectuate his interests: and 3.) that but for the act
or omission, the outcome would have been different. Id. At 357. Failure to satisfy any one of the
prongs, as occurred here, will defeat an ineffectiveness claim. See e.g., Commonwealth v. Cox,
863 A.2d 536, 544 (Pa. 2004).
Notwithstanding his multiple allegations of ineffectiveness, Allshouse said nothing about
Attorney Bonanti's representation, and the only one the Court can analyze based solely on the
trial record is that he failed to object or request a mistrial in relation to the arresting officer's
testimony that his client was unlawfully in possession of a firearm. That allegation is plainly
without merit
When a person is charged with violating 18 Pa. C.S.A. § 6105, the Commonwealth must
prove that he was previously convicted of a disqualifying offense. Commonwealth v. Jemison, 98
A.3d 1254 (Pa. 2014). Whereas the Pennsylvania Rules of Evidence might otherwise preclude
reference to a prior conviction, therefore, they do not have that effect when the purpose of
introducing that evidence is to establish a necessary element of the charged offense. Id. at 1262.
That being the case, it is clear from the record that Attorney Benanti had no legally viable
grounds to lodge an objection or request a mistrial based on testimony about Allshouse's prior
conviction for Aggravated Assault.
2
1es;_in,2··y abou: whs: he witnessed ar.i what .he defendant tole him 0·1 September 29. 2015,
together witl-1 the intrcc action cf ."Jld101-1se · � prior ccn v.cticn for Aggr:.:t"\ aied Assault. Access to
records cf the latter vas ur.affecied '.:,y the ;:.assage ::- f four-and-a-half months. and Allshouse was
present and actively engaging with the trooper on the relevant dale of offense. He was
immediately privy to the most relevant events about which Rupp testified . therefore, and
demonstrated through his O\Yn testimony that his memory of events was not so clouded by the
lapse in time that he could not meaningfully respond to the trooper's averments,
Involuntary Confession:
Because Allshouse was not the subject of a custodial interrogation on September 29,
2015, there was no need for the police to issue Miranda warnings. As our Supreme Court
recently reaffirmed. Miranda applies only when a suspect is both in police custody and subjected
to interrogation. Commonwealth v. Yandamuri, 159 AJd 503. 519-:2(} (Pa. 2017). Yet neither
criterion fit Allshouse' s situation at the time in question. The police were at the residence to
investigate a suicide and were speaking with the defendant for that purpose only. (Trial
Transcript, 10120:'2016, pp. 4-5). He was not a suspect at that time and was completely free to
come and go from his own residence as he pleased. It was only later, after Trooper Rupp ran a
criminal history on him, that the matter turned into a criminal investigation, tld. at 9-12). In the
eyes of the law. therefore, Allshouse's statements-his "confession'v=-were gratuitous,
Yandamuri, supra, at 520, and, as such, were not obtained in violation of his constitutional
rights.
Sufficiency of the Evidence:
But for his confession, says Allshouse, the Commonwealth did not have sufficient
evidence to prove the crime with which he was charged. Because that confession was not
obtained in violation of his Fifth Amendment rights, however, it makes no difference.
Nor does it matter that the defendant believes the Commonwealth only prosecuted him
because it blamed him for the decedent's suicide, not because it believed he had committed a
crime. That contention is completely speculative and is dubious at best given that the
Commonwealth was confident enough to prosecute him through trial. Regardless of what the
4
In all its other permutations, the defendant · s ineffectiveness claim was incapable of
meaningful review absent additional relevant testimony. and he did not offer any. Consequently.
there is i10 evidence that Allshouse even asked Benanti to file any motions or call the proffered
laywitnesses to testify at trial. There is no evidence that the attorney failed 10 investigate outside
of the discovery. And there is no evidence that he utilized "scare tactics" to "coerce" Allshouse
into repeating his un-Mirandized confession to the jury. His ineffectiveness claim thus fails in its
entirety under Travaglia's first prong.
For the reasons discussed below, the defendant's substantive claims fare no better.
Rule 600:
As the record reflects, the subject charge was filed on February 9, 2016. The defendant
was then released on unsecured bail. For purposes of Rue 600. then, the Commonwealth had
3651.o bring him to trial. See Pa.R.Crim.P. 600(A)&(B) (providing that the Commonwealth has
180 days to commence trial against an incarcerated defendant and 3 65 days to commence trial
against an unincarcerated defendant). With respect to Rule 600, therefore, there was no violation
to be remedied.
Due Process-Charging Delay:
It was September 29, 2015 when the police first went to Allshouse's residence to
investigate his girlfriend's daughter's suicide. Trooper Seth Rupp filed the initiating criminal
complaint against the defendant less than four-and-a-half months later, and the record belies his
contention that the delay amounted to a due process violation.
To establish a due process violation based on pre-indictment delay, said our Supreme
Court, a defendant must establish that the Commonwealth· s reasons for the delay were improper
and that he was actually prejudiced by the delay. Commonwealth v. Louden, 803 A.2d 1181,
1184 (Pa. 2002). Prejudice, in this context, requires a specific quantum of proof:
"In order for a defendant to show actual prejudice, he or she must show
that he or she was meaningfully impaired in his or her ability to defendant against
the state's charges to such an extent that the disposition of the criminal
proceedings was likely affected. This kind of prejudice is commonly
demonstrated by the loss of documentary evidence or the unavailability of a key
witness. It is not sufficient for a defendant to make speculative or conclusory
claims of possible prejudice as a result of the passage of time."
Id (quoting Commonwealth v. Scher, 803 A.2d 1204 (Pa. 2002) (internal citations omitted)).
Allshouse's testimony was void of any reference to either the Commonwealth's reason for the
3
II� THJE COlUJR.T OIF COMMON PJLJEA§ OJF JEFFERSON COUNTY
PJENNSYLVANIA
fVK§ION
CGMM:01':\'\'EALTH OF PENN§YJLVANJ!A
CP-33-CR-258-20li6
§HAEE ALLSHOUSE
Defendant
ORIDJER
AND NOW, this 14th day of May 2(H�, for the reasons articulated in the foregoing
Opinion, it is hereby Ordered and Decreed that the defendant's Petition for Post-Conviction
Collateral Relief is DENIED.
If the defendant wishes to appeal this judgment to the Superior Court, he shall, within
THYR'Jl'Y pa) DAY§ from the date this Order is filed, file and serve a Notice of Appeal as set
forth in rules 901-906 of the Pennsylvania Rules ofAppellate Procedure.
BY THE COURT,
]D).A.
Defendant
6
Ccmmcnwealth objectively believed. moreover, the Legislature codified. the alleged conduct as
crimina l and the jury believed beyond a reasonable doubt that Allshouse was guilty of it.
As for the defendant's late revelation that he was hardly ever at the residence where the
gun was located, which he presumably intends as a means to disestablish the element of
possession, the Court rejects it. He testified on his OVl'Il behalf at trial. and he told the jury that
he and his girlfriend had been living together at the Brookville residence for approximately a
year-and-a-half at the time of the suicide. (Trial Transcript, p. 20 ). He may not now undo that
testimony just because he thinks an alternative living arrangement would benefit him with
respect to this PCRA claim. Where he usually resided at that time is immaterial in any event, as
is the address he gave PennDOT when he renewed his driver's license on August 1, 2014, as
neither changes the fact that he told Trooper Rupp the gun was his and that he kept it beside the
refrigerator inside the residence, (see id. at 6)-a statement that, as discussed above, was
gratuitously offered. Accordingly, the evidence was indeed sufficient to establish the element of
possession so as to warrant the jury's verdict.
Sentencing:
Alleyne v. United States. 570 U.S. 99 (2013), has no bearing on this case, as the Court did
not impose a mandatory or enhanced sentence; what it did was issue a maximum sentence that
fell within the aggravated range of the sentencing guidelines. (Sentencing Transcript,
11/18/2016, pp. 6-7). Alleyne, therefore, is wholly inapposite.
As for the assertion that the sentence was excessive, moreover, excessiveness is a
challenge to the discretionary aspects of the sentence and was the issue discussed by the Superior
Court in response to the defendant's direct appeal. Accordingly, the matter has been fully
litigated and does not provide an avenue for relief in this context. See 42 Pa C.S.A. § 9543(a)(3)
(saying that a petitioner, to be eligible for relief, must plead and prove that the allegation of error
has not been previously litigated), and § 9544(a)(2) (saying that a matter has been previously
litigated if the highest appellate court in which the petitioner has the right of appeal has ruled on
the merits of the issue). Like his trial and pre-trial issues, therefore, Allshouse's sentencing
challenges do not avail him under the Post Conviction Relief Act.
5
IN THE COURT OF COMMON PLEAS OF JEFFERSON COUNTY , , . __ �: :_::
PENNSYLVANIA .�� ::= :;·- ', -..� - .. -
CRIMINAL DIVISION
COMMONWEALTH OF PENNSYLVANIA
vs. CP-33-CR-258-2016
SHANE ALLSHOUSE
Defendant
ORDER
AND NOW, this 14th day of May 2019, for the reasons articulated in the foregoing
Opinion, it is hereby Ordered and Decreed that the defendant's Petition for Post-Conviction
Collateral Relief is DENIED.
If the defendant wishes to appeal this judgment to the Superior Court, he shall, within
THIRTY (30) DAYS from the date this Order is filed, file and serve a Notice of Appeal as set
forth in rules 901-906 of the Pennsylvania Rules ofAppellate Procedure.
BY THE COURT,
D.A.
Defendant
6
IN 1I'H1E C01IJR1f OJF COMMON PLEA§ OF JEFFERSON COUNTY
Circulated 06/04/2020 02:54 PM
PENNSYLVANIA
CRIMINAL DIVISION
COMMONWEAL TH OF PENNSYLVANIA
vs. CP-33-CR-258-2016
§HANE ALLSHOUSE
Defendant
ORDER
AND NOW9 this 14th day of May 2019, it is hereby Ordered and Decreed that the
defendant's "Petition for Evidentiary Re-hearing," wherein he asks the Court to reopen the
record for additional testimony, is DENIED.
A record may be reopened to prevent a failure or miscarriage of justice, Commonwealth
v. Chambers, 685 A.2d 96, 109 (Pa. 1996), Commonwealth v. Baldwin, 58 A.3d 754, 763 (Pa.
2012), and a judge does not abuse his discretion by declining to open a record when doing so
will not serve that purpose. See id So it is ill: this case.
The defendant would like to fault the Clerk of Courts and the Court itself for his proposed
witnesses' failure to appear and testify at his PCRA hearing. Having elected to proceed without
counsel, though, he was the one solely responsible for making that happen, and the record
indicates that it was he, not the Court or the Clerk of Courts, that failed in that regard. It was his
obligation to either reach out to his witnesses informally or order and serve subpoenas to compel
their appearance, and that he would err in that regard was one of the risks he accepted when he
decided to dismiss the attorney the Court had appointed for him. The proper administration of
justice was not compromised just because that risk became a reality.
Be that as it may, the defendant was not prejudiced by the absence of his proposed
witnesses. As the record reflects, the Commonwealth stipulated and the Court found that the
laywitnesses' testimony would have been consistent with the proffer he made in his motion for
an evidentiary hearing. At this point, therefore, their actual testimony would only be cumulative.
-SY-
T
Given the defendant's failure to offer his own testimony with respect to Attorney Bonanti's
representation, moreover, testimony from the attorney would be irrelevant. 1
Whether one trusts the accuracy of the record or accepts the defendant's contention that
the Court failed him by not compelling his witnesses to attend the PCRA hearing, therefore, the
trajectory of the hearing itself-specifically the district attorney's stipulation and the defendant's
failure to support his written averments regarding Attorney Bonanti's allegedly ineffective
assistance-indicates that the absence of his proposed witnesses made no difference to the
resolution of his claims.
IT KS FURf.HER ORDERED AND llECRJEED that the defendant's "Motion
Compelling Transmission of Notes of Testimony .. is DJENIEID. Whereas the Court has denied
his request for a re-hearing and there is no appeal pending in this matter, he has no need for a
transcript of the April 29, 2019 hearing at this time.
BY THE COURT,
D.A.
Defendant
I
As the Court discusses in its PCRA Opinion, the defendant said nothing about his ineffectiveness allegations
during his own testimony and, as a result, failed to satisfy even the first of the three-prong of the ineffective
assistance of counsel inquiry delineated in Commonwealth v. Travaglia, 661 A.2d 352 (Pa. 1995).
2