Com. v. Stone, M.

J-S53011-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
MICHAEL STONE :
:
Appellant : No. 1122 EDA 2020
Appeal from the PCRA Order Entered March 12, 2020
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0010016-2015
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
MICHAEL STONE :
:
Appellant : No. 1123 EDA 2020
Appeal from the PCRA Order Entered March 12, 2020
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0010017-2015
BEFORE: SHOGAN, J., LAZARUS, J., and STRASSBURGER, J.*
MEMORANDUM BY SHOGAN, J.: FILED FEBRUARY 23, 2021
Appellant, Michael Stone, appeals from the March 12, 2020 order
denying his petition filed pursuant to the Post Conviction Relief Act (“PCRA”),
42 Pa.C.S. §§ 9541-9546. We affirm.
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
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On direct appeal, a prior panel of this Court summarized the relevant
facts and procedural history of this case as follows:
[Appellant] was arrested in August 2015, and charged by
criminal complaint with robbery, burglary, and related offenses.
See Complaint, 8/11/15, at 2. The factual description supporting
the charges read:
At 439 Domino Lane [Appellant], with intent to
commit a crime therein, unlawfully entered a building
or occupied structure belonging to the complainant,
John McFarland [(“the victim”)], by forcing open a
door, and [Appellant] forcibly took money from the
complainant by struggling with the complainant and
taking the complainant’s wallet and phone, and
[Appellant] intimidated or attempted to intimidate the
complainant to refrain from reporting the incident by
telling the complainant that “it would be worse” if
complainant called police.
Id. (unnecessary capitalization omitted).
The trial court held a preliminary hearing on October 6,
2015, and found that the Commonwealth had established a prima
facie case on most of the charged offenses, including robbery and
burglary. See Trial Disposition and Dismissal Form at 1. The
Commonwealth thereafter filed a bill of information on October 14,
2015, charging [Appellant] with robbery, burglary, and other
offenses. See Information at 1.[1] The burglary charge specified
John McFarland as the victim, and 439 Domino Lane, Philadelphia,
as the location [of the crime]. Id.
Formal arraignment took place on October 27, 2015.
Although the record does not reflect what occurred during those
proceedings, [Appellant’s] counsel later stated that the burglary
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1 The lower court docket number was CP-51-CR-0010016-2015.
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charge had been included in that arraignment. See N.T., 5/17/16
(Trial), at 112.[2]
Jury selection for [Appellant’s] trial commenced on May 17,
2016. . . .
* * *
The jury found [Appellant] guilty of both robbery and
burglary.5 [,3] The court sentenced [Appellant] on August 4, 2016,
to consecutive terms of ten to 20 years’ incarceration for burglary
and one to five years’ incarceration for robbery.
5[Appellant] was found not guilty of robbery at CP-
51-CR-0010017-2015
[Appellant] filed a timely notice of appeal . . . .
Commonwealth v. Stone, 193 A.3d 1058, 2632 EDA 2016, at *1–3 (Pa.
Super. filed June 8, 2018) (unpublished memorandum). We affirmed the
judgment of sentence, id., and our Supreme Court declined further review.
Commonwealth v. Stone, 199 A.3d 334, 293 EAL 2018 (Pa. filed December
11, 2018).
Appellant filed a pro se PCRA petition on April 30, 2019. The PCRA court
appointed counsel, who filed an amended petition on October 18, 2019. The
PCRA court issued notice of its intent to dismiss the petition pursuant to
Pa.R.Crim.P. 907 on February 19, 2020. Appellant did not file a response, and
____________________________________________
2 Appellant also had been charged with robbery under lower court docket
number CP-51-CR-0010017-2015, which was consolidated with docket CP-51-
CR-0010016-2015.
3 18 Pa.C.S. §§ 3701(a)(1)(iv) and 3502(a)(1), respectively.
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the PCRA court dismissed the petition on March 12, 2020. Appellant filed
timely notices of appeal from the March 12, 2020 order. Both Appellant and
the PCRA court complied with Pa.R.A.P. 1925.4
The notice of appeal listing lower court docket number CP-51-CR-
0010016-2015 was assigned Superior Court docket number 1122 EDA 2020;
the notice of appeal listing lower court docket number CP-51-CR-0010017-
2015 was assigned Superior Court docket number 1123 EDA 2020. On July
20, 2020, we consolidated the appeals sua sponte. Order, 7/20/20, at 1.
Appellant presents the following issues in his Statement of Questions
Involved in his appellate brief5:
1. Whether the PCRA court erred by dismissing the PCRA
petition when clear and convincing evidence was presented
that established multiple instances of trial counsel’s
ineffectiveness[?]
2. Whether the PCRA court erred by dismissing the PCRA
petition when clear and convincing evidence was presented
that established multiple violations of [A]ppellant’s
constitutional rights[?]
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4 The PCRA court filed a “Letter in Lieu of Opinion” referencing “the reasons
for the dismissal of Appellant’s [PCRA] petition” in footnote one of its order
dismissing the petition, which merely states the basis of its reasoning in
conclusory single sentences in a footnote. Order Sur PCRA Petition, 6/8/20,
at 1 n.1.
5 Apellant’s Brief does not comply with multiple Rules of Appellate Procedure,
including, for example, Pa.R.A.P. 124(3) (“Text must be double spaced”);
Pa.R.A.P. 2111(a)(11) and (d) (requiring Appellant to append the statement
of errors complained of on appeal filed with the trial court); Pa.R.A.P. 2119
(c) (Reference to the record) and (e) (statement of place of raising or
preservation of issues).
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3. Whether the PCRA court erred by failing to grant an
evidentiary hearing[?]
Appellant’s Brief at 8.
When reviewing the propriety of an order denying PCRA relief, we
consider the record “in the light most favorable to the prevailing party at the
PCRA level.” Commonwealth v. Stultz, 114 A.3d 865, 872 (Pa. Super.
2015) (quoting Commonwealth v. Henkel, 90 A.3d 16, 20 (Pa. Super. 2014)
(en banc)). This Court is limited to determining whether the evidence of
record supports the conclusions of the PCRA court and whether the ruling is
free of legal error. Commonwealth v. Rykard, 55 A.3d 1177, 1183 (Pa.
Super. 2012). We grant great deference to the PCRA court’s findings that are
supported in the record and will not disturb them unless they have no support
in the certified record. Commonwealth v. Rigg, 84 A.3d 1080, 1084 (Pa.
Super. 2014).
To be eligible for relief under the PCRA, a defendant must plead and
prove that his conviction and/or sentence resulted from one of the
circumstances delineated by the PCRA. See 42 Pa.C.S. § 9543 (outlining the
eligibility requirements for PCRA relief). Among those requirements are that
the issue must not be previously litigated or waived. 42 Pa.C.S. § 9543(a)(3).
An issue is previously litigated if “the highest appellate court in which the
petitioner could have had review as a matter of right has ruled on the merits
of the issue[.]” 42 Pa.C.S. § 9544(a)(2).
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Appellant’s first issue assails the effectiveness of trial counsel. To plead
and prove ineffective assistance of counsel, a petitioner must establish: (1)
that the underlying issue has arguable merit; (2) counsel’s actions lacked an
objective reasonable basis; and (3) actual prejudice resulted from counsel’s
act or failure to act. Commonwealth v. Treiber, 121 A.3d 435, 445 (Pa.
2015). A claim of ineffectiveness will be denied if [Appellant’s] evidence fails
to meet any one of these prongs. Commonwealth v. Martin, 5 A.3d 177,
183 (Pa. 2010). Counsel is presumed to have rendered effective assistance
of counsel. Commonwealth v. Montalvo, 114 A.3d 401, 410 (Pa. 2015).
Moreover, we have explained that trial counsel cannot be deemed ineffective
for failing to pursue a meritless claim. Commonwealth v. Loner, 836 A.2d
125, 132 (Pa. Super. 2003) (en banc).
With regard to the second prong, we have reiterated that trial counsel’s
approach must be “so unreasonable that no competent lawyer would have
chosen it.” Commonwealth v. Ervin, 766 A.2d 859, 862-863 (Pa. Super.
2000) (quoting Commonwealth v. Miller, 431 A.2d 233 (Pa. 1981)). “The
test is not whether other alternatives were more reasonable, employing a
hindsight evaluation of the record. . . . [T]he balance tips in favor of a finding
of effective assistance as soon as it is determined that trial counsel’s decision
had any reasonable basis.” Commonwealth v. Pierce, 527 A.2d 973, 975
(Pa. 1987).
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As to the third prong, generally, prejudice requires proof that there is a
reasonable probability that but-for counsel’s error, the outcome of the
proceeding would have been different. Commonwealth v. Diaz, 226 A.3d
995, 1008 (Pa. 2020). “A failure to satisfy any prong of the ineffectiveness
test requires rejection of the claim of ineffectiveness.” Commonwealth v.
Daniels, 963 A.2d 409, 419 (Pa. 2009). Thus, when it is clear that a
petitioner has failed to meet the prejudice prong of an ineffective-assistance-
of-counsel claim, the claim may be disposed of on that basis alone, without a
determination of whether the first two prongs have been met.
Commonwealth v. Baker, 880 A.2d 654, 656 (Pa. Super. 2005).
Finally, we are bound by the PCRA court’s credibility determinations
where there is support for them in the record. Commonwealth v. Battle,
883 A.2d 641, 648 (Pa. Super. 2005) (citing Commonwealth v. Abu-Jamal,
720 A.2d 79 (Pa. 1998)).
The PCRA court noted as follows:
Because [Appellant’s] claims are devoid of merit, counsel cannot
be ineffective. See Commonwealth v. Koehler, 36 A.3d 121, 144
(Pa. 2012). Specifically,
1. [Appellant] failed to demonstrate that counsel was
ineffective for failing to investigate or call witnesses on his
behalf, where he has not provided proof that such witnesses
existed, that they were available, that counsel knew or
should have known of such witnesses, that the witnesses
were willing to testify, and that the absence of such
witnesses’ testimony prejudiced him.
2. [Appellant] failed to demonstrate that counsel was
ineffective for failing to file post sentence motions, where
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there is no claim that he asked sentencing counsel to do so,
and he did not demonstrate what the unfiled motions would
have addressed or, if there was a failure to file, that the post
sentence motions would have altered the outcome.
3. [Appellant] failed to demonstrate that counsel was
ineffective for failing to adequately cross examine the
complainant. The record demonstrates that counsel
adequately cross examined the complainant and [Appellant]
failed to allege any additional areas of cross examination, or
that such additional examination would have altered the
outcome.
4. [Appellant] failed to demonstrate that counsel was
ineffective for failing to file a motion challenging the affidavit
of probable cause. He failed to allege any specific falsehoods
in the affidavit or evidence that the affiant officer knew the
Information was false, and there is no basis upon which to
conclude that had such a motion been filed, it would have
been successful.
5. [Appellant] failed to demonstrate that counsel was
ineffective for failing to adequately communicate with him
before trial. When given the opportunity to claim such
failure to communicate, he failed to do so. Instead,
[Appellant] testified that he had the opportunity to discuss
his case with counsel. NT[,] 5/17/16, 108. He also failed
to allege any prejudice from any alleged failure to
communicate, what he would have communicated, or that
such additional communication would have altered the
outcome.
6. [Appellant] failed to demonstrate that counsel was
ineffective for failing to investigate DNA and fingerprint
evidence. He failed to demonstrate that there was any such
evidence available for testing, or how such evidence would
have changed the result.
7. [Appellant] failed to demonstrate that the evidence was
insufficient to support his conviction or that appellate
counsel was ineffective in failing to raise such a claim.
[Appellant] waived the claim by failing to raise it on direct
appeal and he do[es] not offer any evidence that he asked
appellate counsel to raise the claim, or that the claim had
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any merit. The evidence at trial, as summarized in the
court’s January 30, 2017, Memorandum Opinion, 2-4, was
sufficient to support the convictions[.]
Order Sur PCRA Petition, 6/8/20, at 1 n.1.
Appellant’s first issue is waived. Appellant provides merely conclusory
statements of the alleged ineffectiveness of trial counsel and fails to develop
his arguments. Appellant’s Brief at 12–15. The only case law set forth in his
brief references PCRA standards and requirements to establish ineffective
assistance of counsel. Id. at 12–14. Appellant wholly fails to cite to the record
where any of the various alleged instances of ineffectiveness occurred. For
example, Appellant stated that he “sought to impeach the testimony of the
complaining witness based on a pre-existing acrimony between [the victim]
and [Appellant],” but there is no reference to the record where Appellant
allegedly so testified. Id. at 13. Appellant contends that trial counsel failed
to “present defense witness testimony,” id. at 13, but he does not identify
what witness or witnesses were foregone. Id. To prevail on a claim of trial
counsel’s ineffectiveness for failure to call a witness, an appellant must prove:
“(1) the witness existed; (2) the witness was available; (3) trial counsel was
informed of the existence of the witness or should have known of the witness’s
existence; (4) the witness was prepared to cooperate and would have testified
on [the] appellant’s behalf; and (5) the absence of the testimony prejudiced
[the] appellant.” Commonwealth v. Chmiel, 889 A.2d 501, 545-546 (Pa.
2005) (citations omitted). Trial counsel’s failure to call a particular witness
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does not constitute ineffective assistance without some showing that the
absent witness’s testimony would have been beneficial or helpful in
establishing the asserted defense. Id. Appellant must demonstrate how the
testimony of the uncalled witness would have been beneficial under the
circumstances of the case. Id. Appellant has not identified any witness, let
alone complied with the parameters of the level of proof to prove ineffective
assistance of counsel for failure to call a witness. See Commonwealth v.
Brown, 161 A.3d 960, 967–968 (Pa. Super. 2017) (failure to provide
affidavits or certifications from foregone witness indicating willingness and
availability to testify is sufficient for PCRA court to reject claim without holding
evidentiary hearing).
“It is not this Court’s responsibility to comb through the record seeking
the factual underpinnings of an appellant’s claim.” Commonwealth v.
Samuel, 102 A.3d 1001, 1005 (Pa. Super. 2014). Appellant has not
developed any of the bald allegations nor explained how he was prejudiced,
and he failed to support his allegations of ineffectiveness by any citation to
the record. It is beyond cavil that where an appellate brief fails to provide
any discussion of a claim with citation to relevant authority or fails to develop
the issue in any other meaningful fashion capable of review, that claim is
waived. Commonwealth v. Woodward, 129 A.3d 480 (Pa. 2015).
In his second issue, Appellant contends the PCRA court erred in
dismissing his petition because he presented clear and convincing evidence
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that his constitutional rights were violated “by the introduction of perjured
testimony and a conviction based on insufficient evidence.” Appellant’s Brief
at 15.
Appellant asserts that his constitutional rights were violated at trial “by
the Commonwealth’s failure to prove each element of the crimes charged
beyond a reasonable doubt.” Appellant’s Brief at 15. This claim is waived.
The PCRA requires a petitioner to prove that his claim “has not been previously
litigated or waived.” 42 Pa.C.S. § 9543(a)(3). A claim is waived under the
PCRA “if the petitioner could have raised it but failed to do so before trial, at
trial, during unitary review, on appeal or in a prior state postconviction
proceeding.” 42 Pa.C.S. § 9544(b) (emphasis added). Appellant could have
raised this issue in his direct appeal but failed to do so. See Stone, 2632
EDA 2016, (unpublished memorandum); Commonwealth v. Koehler, 36
A.3d 121, 140 (Pa. 2012) (Koehler’s substantive due-process-violation claim
was waived on PCRA review where he could have raised it on direct appeal,
but failed to do so); Commonwealth v. Cox, 983 A.2d 666, 704 (Pa. 2009)
(claim that trial court violated the appellant’s right to due process by failing
to give a jury instruction was waived on PCRA review where the appellant
failed to raise it previously). While Appellant apparently asserted appellate
counsel’s ineffectiveness in this regard to the trial court, he has not argued it
in his appellate brief. Therefore, as the claim is abandoned, it is waived. See
Commonwealth v. Heggins, 809 A.2d 908, 912 n.2 (Pa. Super. 2002)
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(“[A]n issue identified on appeal but not developed in the appellant’s brief is
abandoned and, therefore, waived.”).
Furthermore, Appellant failed to identify to the PCRA court, and to us on
appeal, which crime was not proven and what element was foregone. “An
appellant’s [Pa.R.A.P.] 1925(b) statement must state with specificity the
element or elements upon which the appellant alleges that the evidence was
insufficient.” Commonwealth v. Stiles, 143 A.3d 968, 982 (Pa. Super.
2016) (quoting Commonwealth v. Garland, 63 A.3d 339, 344 (Pa. Super.
2013)); see also Pa.R.A.P. 1925(b)(4)(ii) (“[T]he Statement shall concisely
identify each ruling or error that the appellant intends to challenge with
sufficient detail to identify all pertinent issues for the judge.”). “Such
specificity is of particular importance in cases where, as here, [A]ppellant was
convicted of multiple crimes each of which contains numerous elements that
the Commonwealth must prove beyond a reasonable doubt.” Garland, 63
A.3d at 344. Failure to identify what specific elements the Commonwealth did
not prove at trial in a Rule 1925(b) statement renders an appellant’s
sufficiency-of-the-evidence claim waived for appellate review. See
Commonwealth v. Tyack, 128 A.3d 254, 261 (Pa. Super. 2015) (finding
appellant’s issues waived where “1925(b) statement simply declared, in
boilerplate fashion, that the evidence was insufficient to support his
conviction”).
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Instantly, Appellant generically stated the following in his Pa.R.A.P.
1925(b) statement: “Appellant also established a violation of his Due Process
rights based on his conviction upon evidence that did not prove his guilt
beyond a reasonable doubt.” Pa.R.A.P. 1925(b) Statement, 4/18/20, at 2.
Appellant does not identify any element of burglary or robbery that was not
proven beyond a reasonable doubt. Additionally, Appellant’s “Statement of
the Questions Involved” fails to specify what element(s) of burglary or robbery
was not challenged on appeal. Appellant’s Brief at 8. Consequently,
Appellant’s nonspecific and inaccurate due process claim based upon a lack of
sufficiency of the evidence, which fails to state any elements of any crimes
allegedly not proven by the Commonwealth, is waived for this reason, as well.
Tyack, 128 A.3d at 261.
Even if not waived, we would conclude the issue lacks arguable merit
because the evidence presented at trial was sufficient. In reviewing the
sufficiency of the evidence, we must determine whether the evidence admitted
at trial and all reasonable inferences drawn therefrom, viewed in the light most
favorable to the Commonwealth as verdict winner, were sufficient to prove
every element of the offense beyond a reasonable doubt. Commonwealth
v. Green, 203 A.3d 250, 253 (Pa. Super. 2019), appeal denied, 216 A.3d
1036, 54 WAL 2019 (Pa. July 30, 2019). “[T]he facts and circumstances
established by the Commonwealth need not preclude every possibility of
innocence.” Commonwealth v. Colon-Plaza, 136 A.3d 521, 525–526 (Pa.
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Super. 2016) (quoting Commonwealth v. Robertson-Dewar, 829 A.2d
1207, 1211 (Pa. Super. 2003)). It is within the province of the fact-finder to
determine the weight to be accorded to each witness’s testimony and to
believe all, part, or none of the evidence. Commonwealth v. Tejada, 107
A.3d 788, 792–793 (Pa. Super. 2015). The Commonwealth may sustain its
burden of proving every element of the crime by means of wholly
circumstantial evidence. Commonwealth v. Mucci, 143 A.3d 399, 409 (Pa.
Super. 2016). Moreover, as an appellate court, we may not re-weigh the
evidence and substitute our judgment for that of the fact-finder.
Commonwealth v. Rogal, 120 A.3d 994 (Pa. Super. 2015).
A person commits burglary as a felony of the first degree when he
enters, with the intent to commit a crime therein, a building or occupied
structure adapted for overnight accommodations when “at the time of the
offense any person is present.” 18 Pa.C.S. § 3502(a)(1)(i). “A person is guilty
of robbery if, in the course of committing a theft, he inflicts bodily injury upon
another or threatens another with or intentionally puts him in fear of
immediate bodily injury.” 18 Pa.C.S. § 3701(a)(1)(iv). Bodily injury is defined
as “[i]mpairment of physical condition or substantial pain.” 18 Pa.C.S. § 2301.
An act is deemed “in the course of committing a theft” if it occurs “in an
attempt to commit theft or in flight after the attempt or commission.” 18
Pa.C.S § 3701(2).
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In this case, all of the elements of burglary and robbery were met. The
victim, who is “semi-paralyzed,” testified that as he entered his apartment on
August 8, 2015, at approximately 1:00 a.m., Appellant forced his way into the
victim’s apartment by overpowering the victim, and demanded money. N.T.,
5/17/16, at 19, 23, 25. Initially, the victim did not know who was assaulting
him because it was dark and the assailant wore a ski mask, but the victim
then recognized him as Appellant; Appellant later removed the ski mask. Id.
at 25–27.
Appellant returned the next morning, and the victim telephoned the
police. N.T., 5/17/16, at 31–32. Later that day, as the victim was going to a
friend’s house because he was fearful in his apartment, Appellant attacked the
victim again, overpowered him, and demanded more money. Id. at 34–35.
The credited testimony of the victim alone was sufficient to support Appellant’s
convictions. Thus, even if this issue were not waived, we would conclude that
Appellant has not suffered a due process violation based on the lack of
sufficient evidence to support his convictions.
Appellant’s final claim of a due-process violation alleges prosecutorial
misconduct. Appellant’s Brief at 16. This claim is waived. Appellant did not
assert such issue in his Pa.R.A.P. 1925(b) statement (“Issues not included in
the Statement and/or not raised in accordance with the provisions of this
paragraph (b)(4) are waived”), nor was it included in Appellant’s statement of
questions involved pursuant to Pa.R.A.P. 2116 (“No question will be
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considered unless it is stated in the statement of questions involved or is fairly
suggested thereby.”).
In his final issue, Appellant avers that the PCRA court erred “by failing
to grant an evidentiary hearing.” Appellant’s Brief at 17. “There is no absolute
right to an evidentiary hearing on a PCRA petition, and if the PCRA court can
determine from the record that no genuine issues of material fact exist, then
a hearing is not necessary.” Commonwealth v. Jones, 942 A.2d 903, 906
(Pa. Super. 2008) (quoting Commonwealth v. Barbosa, 819 A.2d 81 (Pa.
Super. 2003)). “[S]uch 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). Because there were no discernable
genuine issues of material fact regarding counsel’s effectiveness that were
properly preserved, we cannot identify any abuse of the PCRA court’s
discretion in denying Appellant an evidentiary hearing. Id.Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/23/2021
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