Opinion
J-S42010-15 No. 2157 EDA 2014
08-05-2015
COMMONWEALTH OF PENNSYLVANIA, Appellee v. DONYEA M. PHILLIPS, Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the PCRA Order June 27, 2014
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0014513-2007
BEFORE: SHOGAN, MUNDY, and FITZGERALD, JJ. MEMORANDUM BY SHOGAN, J.:
Former Justice specially assigned to the Superior Court.
Donyea M. Phillips ("Appellant") appeals pro se from the order denying his petition for collateral relief filed pursuant to the Post Conviction Relief Act ("PCRA"), 42 Pa.C.S. §§ 9541-9546. We affirm.
On direct appeal, a panel of this Court summarized the underlying facts and procedural history of this case as follows:
Appellant pleaded guilty to [multiple counts of attempted first-degree murder, reckless endangerment of another person ("REAP"), criminal conspiracy, possession with intent to deliver a controlled substance ("PWID"), and numerous other crimes] following an incident in which he fired at police officers who were executing a search warrant after observing a drug purchase at the property. Appellant fired multiple times, striking two police
officers, and surrendered only after speaking with negotiators.1 At sentencing, Appellant agreed that he was subject to a mandatory-minimum term of five to ten years' imprisonment for PWID. It was further determined that he had a prior record of zero; however, his offense gravity score for attempted murder was fourteen, three for REAP, and eight for conspiracy. Appellant was sentenced to: ten to twenty years' incarceration following application of the deadly weapons guideline enhancement for each of the two counts of attempted murder, imposed consecutively; six to twelve months' incarceration for each of the ten counts of REAP, resulting in an aggregate sentence of five to ten years' incarceration, imposed consecutively to the attempted murder sentences; the mandatory-minimum, but concurrent, term of five to ten years' imprisonment for PWID; and a concurrent term of two to four years' imprisonment for conspiracy, resulting in an aggregate sentence of twenty-five to fifty years' incarceration.
Commonwealth v. Phillips , 3531 EDA 2008, 998 A.2d 1005 (Pa. Super. filed April 12, 2010) (unpublished memorandum at 1-2). That panel affirmed the judgment of sentence, id. at 9, and the Pennsylvania Supreme Court denied allowance of appeal. Commonwealth v. Phillips , 14 A.3d 826 (Pa. 2011).1 Appellant ultimately proceeded to the plea hearing with seventy counts of various crimes charged against him.
Appellant was sixteen years old when he fired upon the police officers. Before trial, he requested transfer of his case to the juvenile court. The trial court denied his request on April 30, 2008. Thereafter, Appellant entered guilty pleas on July 2, 2008.
Appellant timely filed a pro se PCRA petition on October 30, 2011. On March 6, 2012, the PCRA court appointed counsel, who, after reviewing Appellant's claims and the record, determined that the appeal was frivolous and no meritorious claims could be raised through an amended petition. Thus, counsel filed a Turner/Finley letter and petitioned to withdraw on January 31, 2014. After conducting an independent review of Appellant's claims, the PCRA court filed a Pa.R.Crim.P. 907 notice on April 15, 2014, advising Appellant of its intent to dismiss the petition without a hearing. Appellant filed a response to the Rule 907 notice on May 27, 2014. On June 27, 2014, the PCRA court dismissed the PCRA petition and granted counsel leave to withdraw. This timely pro se appeal followed. Appellant and the PCRA court complied with Pa.R.A.P. 1925.
Commonwealth v. Turner , 544 A.2d 927 (Pa. 1988), and Commonwealth v. Finley , 550 A.2d 213 (Pa. Super. 1988) (en banc).
The certified record indicates that Appellant filed an amended petition on February 25, 2014, and counsel filed a supplemental Finley letter on March 29, 2014. However, the record does not contain an order of court granting leave to file the amended petition. See Commonwealth v. Baumhammers , 92 A.3d 708, 730 (Pa. 2014) (citing Pa.R.Crim.P. 905(A) and Commonwealth v. Porter , 35 A.3d 4, 12 (Pa. 2012) for rule that leave to amend must be sought and obtained; because amendments are not "self-authorizing," petitioners may not automatically "amend" their PCRA petitions via responsive pleadings). Therefore, we shall not consider the amended petition or the supplemental Finley letter.
On appeal, Appellant presents the following questions for our consideration, which we reproduce verbatim:
1). Did the PCRA Court Commit Reversible err, when it was presented with a timely Petition, in regards to the Legality of a sentence and ineffective Assistance of Counsel?Appellant's Brief at VI.
2). Did the Court err, when it sentence Appellant to an Illegal sentence that as predicated on a Plead Colloguy that was not Lawful, Voluntarily, Intelligently and/or Knowingly entered?
3). Is appellant's Sentence illegal, has it Violates the Eighth Amendments prohibition against Cruel and unusual Punishment, and Denied Appellant his Fourteenth Amendment right to Due Process of Law?
4). Did Appellant received Ineffective Assistance of Counsel under the Strickland Standard, therefore, deprived him of his Constitutional rights to Counsel and pertinent to the Due Process of law?
When reviewing the propriety of an order granting or denying PCRA relief, 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).
In order to obtain collateral relief, a PCRA petitioner must establish by a preponderance of the evidence that his conviction or sentence resulted from one or more of the circumstances enumerated in 42 Pa.C.S. § 9543(a)(2). Instantly, Appellant purports to raise a claim that his sentence was illegal because his plea was not voluntary, intelligent, and knowing. 42 Pa.C.S. § 9543(a)(2)(iii). Appellant also fashions a claim based on the unconstitutional application of mandatory minimum sentences to a juvenile. 42 Pa.C.S. § 9543(a)(2)(i). Finally, Appellant raises the ineffectiveness of trial and PCRA counsel. 42 Pa.C.S. § 9543(a)(2)(ii).
Appellant included five ineffective-assistance-of-counsel claims in his concise statement of errors complained of on appeal. Pa.R.A.P. 1925(b) Statement, 8/15/14, at ¶¶ 4-8. In his brief to this Court, however, Appellant presents only four claims, abandoning his argument that trial counsel was ineffective for failing to correct information in the written plea colloquy. Id. at ¶ 6.
Appellant first argues that his sentence was illegal because it was based upon an invalid guilty plea. Appellant claims his guilty plea was not valid for three reasons. First, he was under the influence of psychotropic medications when he entered his guilty plea, which impaired his ability to enter a voluntary, intelligent, and knowing plea. Appellant's Brief at 2. Second, he was lead to believe through the colloquy that the victims' identities as police officers would not be considered at sentencing. Id. at 5. Third, his plea was not knowing, intelligent, and voluntary because the maximum sentence that could have been imposed was unconstitutional pursuant to Graham v. Florida , 560 U.S. 48 (2010). Id. at 6.
The Commonwealth maintains that, "under the guise of challenging his sentence, [Appellant has] solely attacked the validity of his guilty plea and colloquy," and this claim is waived. Commonwealth's Brief at 9. In the event Appellant's guilty plea challenge is reviewable, the Commonwealth further asserts that it is meritless. Id. at n.2.
Upon review of the certified record, we agree with the Commonwealth that, despite Appellant framing the issue as an illegal-sentence claim, Appellant is, in fact, challenging the validity of his guilty plea. We also agree that this issue is waived.
We note with approval, the trial court's analysis of Appellant's Graham -based claim:
Here, [Appellant] received an aggregate sentence of 25 to 50 years in prison. Because he was 16 years old at the time that he was incarcerated for this case, he will be eligible for parole at age 41. That certainly provides [Appellant] with a meaningful opportunity to obtain release. Nothing in Graham, nor any other authority, would render such a sentence to be in violation of the Eighth Amendment. Graham, 560 U.S. at 49; see Commonwealth v. Lawrence, ___ A.3d ___, 2014 PA Super 182 at *4, (Pa. Super. 2014) (statutory mandatory minimum sentence of 35 years imprisonment for juveniles convicted of first degree murder did not violate the principles set forth in Graham).PCRA Court Opinion, 10/17/14, at 8.
To obtain post-conviction relief, a petitioner is required to plead and prove that "the allegation of error has not been previously litigated or waived." 42 Pa.C.S. § 9543(a)(3). An issue is waived if it could have been raised before trial, at trial, on direct appeal, or in a prior state post-conviction proceeding. 42 Pa.C.S. § 9544(b). In order to preserve a challenge to his guilty plea, a defendant must either make a timely objection during the plea colloquy or raise the claim in a post-sentence motion. Commonwealth v. D'Collanfield , 805 A.2d 1244, 1246 (Pa. Super. 2002) (instructing that claim challenging validity of guilty plea waived where appellant neither objected during colloquy nor challenged it in post-sentence motion); Pa.R.Crim.P. 720.
Here, Appellant did not object to the guilty plea during his colloquy or challenge the plea in his counseled October 22, 2008 post-sentence motion. Therefore, Appellant's stand-alone claim (and attending arguments) that his guilty plea was invalid, raised for the first time on collateral review, is waived. 42 Pa.C.S. § 9544(b).
We note that the certified record includes a pro se letter from Appellant to the trial court, sent while Appellant was represented by counsel and baldly asking to withdraw his guilty plea. The trial court docketed the letter as a motion to withdraw guilty plea, afforded counsel ten days to file an amended motion, and instructed that the motion would be denied if no amended motion was filed. Order, 11/4/08. No counseled, amended motion appears on the docket or in the record, and we will not consider Appellant's pro se letter challenging the validity of his guilty plea. See Commonwealth v. Reid , 642 A.2d 453 (Pa. 1994) (quoting Commonwealth v. Ellis , 626 A.2d 1137 (Pa. 1993) for holding that any pro se documents filed while defendant is represented by counsel will not be considered).
Even if not waived, Appellant's guilty plea challenge is not cognizable under the PCRA because it does not underlie an allegation of trial counsel's ineffectiveness. 42 Pa.C.S. § 9543(a)(2)(ii); compare Commonwealth v. Spotz , 47 A.3d 63, 82 (Pa. 2012) (where claim of trial court error is waived, only cognizable claim under PCRA is claim of ineffective assistance of counsel).
Next, Appellant challenges as unconstitutional the application of mandatory minimum sentences to a juvenile. Appellant's Brief at 7. Specifically, Appellant argues that, because he was sixteen years old when he shot the police officers, his sentence of incarceration for twenty-five to fifty years violates the Eighth Amendment prohibition against cruel and unusual punishment. Id. at 8. In support of his position, Appellant relies on, inter alia, Miller v . Alabama , ___ U.S. ___, 132 S.Ct. 2455 (2012), in which the United States Supreme Court held that "mandatory life-without-parole sentences for juveniles violate the Eighth Amendment." Id. at 2464. Citing Commonwealth v. Lawrence , 99 A.3d 116 (Pa. Super. 2014), and Commonwealth v. Brooker , 103 A.3d 325 (Pa. Super. 2014), the Commonwealth responds that Appellant's claim is contradicted by Pennsylvania case law. Commonwealth's Brief at 10. We agree with the Commonwealth.
In disposing of this issue, we adopt as our own the thorough and well-reasoned analysis of the PCRA court:
[O]ur Superior Court has recently held that mandatory minimum sentences imposed upon a juvenile do not contravene the Eighth Amendment. Commonwealth v. Lawrence, ___ A.3d ___, 2014 Pa. Super. 182 (Pa. Super. 2014) (rejecting Eighth Amendment challenge to mandatory minimum sentence of 35 years for juveniles convicted of first degree murder).PCRA Court Opinion, 10/17/14, at 9-10.
It is true, however, that the statute providing the mandatory minimum sentence now challenged by [Appellant] has since been ruled unconstitutional on other grounds in Commonwealth v. Newman, ___ A.3d ___, 2014 Pa. Super. 178 (Pa. Super. 2014). The statute at issue provides for a mandatory minimum sentence of five years for someone possessing drugs with intent to distribute when the defendant or his accomplice is in possession of a firearm. 42 Pa.C.S. § 9712.1. The statute provides that the applicability of the mandatory is to be determined by the judge at the time of sentencing. However, in Alleyne v. United States, 133 S.Ct. 2151 (2013), the Supreme Court of the United States held that any facts that determine a mandatory minimum sentence must
be found by a jury. 133 S.Ct. at 2160-2161. In Newman, the Superior Court found that the provision in section 9712.1 stating that the judge, and not the jury, was to determine the applicability of the mandatory sentence, was not severable, and therefore, section 9712.1 was constitutionally infirm. 2014 PA Super 178 at *15.
Nevertheless, it appears that [Appellant] is not entitled to have his PWID sentence vacated. In Commonwealth v. Miller, the Superior Court held that claims predicated on Alleyne are not cognizable on collateral review. Commonwealth v. Miller, [102] A.3d [988], 2014 Pa. Super. 214 at *5 (Pa. Super. 2014), ("This Court has recognized that a new rule of constitutional law is applied retroactively to cases on collateral review only if the United States Supreme Court or our Supreme Court specifically holds it to be retroactively applicable to those cases.").
Finally the [c]ourt notes that [Appellant's] aggregate sentence would be unaffected even if his mandatory minimum sentence under section 9712.1 were vacated. [Appellant's] sentence on that count was run concurrent to all of the other sentences and therefore had no effect on the total term of imprisonment.
Appellant's remaining claims are based on his contention that trial and PCRA counsel were ineffective. To prove an ineffective-assistance-of-counsel ("IAC") claim, 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. Rykard , 55 A.3d at 1189-1190. A claim of ineffectiveness will be denied if the petitioner's evidence fails to meet any one of these prongs. Commonwealth v. Martin , 5 A.3d 177, 183 (Pa. 2010). We reiterate that counsel's representation is presumed to have been effective unless the petitioner proves otherwise. Commonwealth v. Williams , 732 A.2d 1167, 1177 (Pa. 1999). Further, 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).
Appellant presents several challenges to trial counsel's representation. First, Appellant complains that trial counsel failed to file an interlocutory appeal from the order denying his decertification to juvenile court. Appellant's Brief at 11. In support of his position, Appellant proffers the testimony of his expert, Dr. Kevin Heilbrun, who testified that Appellant was amenable to rehabilitation in the juvenile system. Id. at 14. The Commonwealth counters that, "at no point in [Appellant's] PCRA filings did he proffer that he requested trial counsel to file such an appeal. . . . Without such a request, he has no basis to claim trial counsel was ineffective." Commonwealth's Brief at 13.
Our review of the record confirms that Appellant did not plead in his petition or proffer evidence that he asked trial counsel to file an interlocutory appeal from Judge Lerner's decertification order. PCRA Petition, 10/30/11. However, even if Appellant had made such a request, we conclude that no prejudice resulted from trial counsel's failure to comply. In reaching this conclusion, we rely on the following, well-reasoned analysis of the trial court:
Under the Juvenile Act, minors fifteen years old or older who commit certain serious criminal acts delineated in the Act,PCRA Court Opinion, 10/17/14, at 11-13 (internal citations and quotation marks omitted). In sum, we decline Appellant's invitation to reweigh Dr. Heilbrun's testimony and disturb the PCRA court's ruling.
are charged directly in criminal court, subject to the right of the minor to apply for transfer of the case to juvenile court. 42 Pa.C.S. §§ 6302 & 6322(a). Included among the serious charges that may directly be filed in adult criminal court is attempted murder. 42 Pa.C.S. § 6302. Following the filing of such charges, a petition of the minor to transfer the case to juvenile court is adjudicated at a decertification hearing, where the defendant bears the burden of proving, by a preponderance of the evidence, that the transfer of the case would serve the public interest. See 42 Pa.C.S. § 6322(a).
In determining whether the public interest would be served by the transfer, the hearing court must consider the following factors: "(A) the impact of the offense on the victim or victims; (B) the impact of the offense on the community; (C) the threat to the safety of the public or any individual posed by the child; (D) the nature and circumstances of the offense allegedly committed by the child; (E) the degree of the child's culpability; (F) the adequacy and duration of dispositional alternatives available in the juvenile system and in the adult criminal justice system; and (G) whether the child is amenable to treatment, supervision or rehabilitation as a juvenile." 42 Pa.C.S. § 6355(a)(4)(iii). The decision of whether to grant a decertification motion is "within the sound discretion of the hearing judge, whose decision will not be disturbed absent a gross abuse of . . . discretion." Commonwealth v. Reed, 645 A.2d 872, 877 (Pa. Super. 1994)(en banc), appeal denied, 658 A.2d 794 (Pa. 1995). An abuse of this discretion will not be found where the claim on appeal is that the court should have weighed the evidence differently. See, e.g., Commonwealth v. Moss, 543 A.2d 514, 516 (Pa. 1988).
Here, [Appellant's] decertification petition was handled by Judge Benjamin Lerner of [the Court of Common Pleas of Philadelphia County], at a hearing that was held on April 30, 2008. The record of that hearing demonstrates that Judge Lerner did not abuse his discretion when he denied [Appellant's] decertification petition.
At the hearing, Judge Lerner explicitly considered all of the required statutory factors before concluding that it would not serve the public interest to transfer [Appellant's] case to juvenile court. N.T. 4/30/08 at 17-19. Judge Lerner further considered all of the discovery materials in this case, as well as [Appellant's]
school records, J-file, academic progress report, and psychological evaluation. N.T. 4/30/08 at 5-6.
Ultimately, however, Judge Lerner determined that [Appellant's] need for rehabilitation and the severity of the crimes of which he was accused required that the case stay in adult criminal court. N.T. 4/30/08 at 24-25. [Appellant] was eight months away from being 18 years old at the time of the decertification hearing, and Judge Lerner found that if [Appellant] were found guilty of the crimes of which he was accused, that "the juvenile justice system would have no jurisdiction over him when he turned 21 . . . and it's absolutely clear that the public interest will not be served by sending this case back." N.T. 4/30/08 at 24-25. Judge Lerner further stated that [Appellant] would, if convicted, be afforded the opportunity to address and treat any needs indicated in the psychological evaluation, but that such treatment could not happen in "as short a time as is available in the juvenile justice system." N.T. 4/30/08 at 25-26. This finding, supported by the record, strongly supports the [c]ourt's decision not to send this case to juvenile court. See Commonwealth v. Zoller, 498 A.2d 436, 439-440 (Pa. Super. 1985) (decertification denied upheld where court found that a juvenile program did not provide sufficient time to ensure that the defendant was rehabilitated). Judge Lerner also relied on the severity of the crime, which consisted of "meeting these officers with a hail of gunfire." N.T. 4/30/08 at 23. This was also a critical factor supporting his decision. See Commonwealth v. Waters, 483 A.2d 855, 858 (Pa. Super. 1984), cert. denied, 471 U.S. 1173 (1985) (denial of decertification proper when court finds that the violent nature of the crime and the need to protect the community outweighs the defendant's lack of prior record score and mitigating personal factors); see also Commonwealth v. Sanders, 814 A.2d 1248, 1252 (Pa. Super. 2003) (denial of decertification proper even when such denial is based solely on the severity of the crime).
Accordingly, the record demonstrates that Judge Lerner properly exercised his discretion in denying [Appellant's] petition for decertification. Therefore, there was no basis for counsel to challenge Judge Lerner's ruling in an interlocutory appeal. As a result, counsel's failure to do so therefore could not have deprived [Appellant] of effective assistance of counsel.
Appellant's second IAC claim concerns trial counsel "permitting the Commonwealth to amend the information in open court, without [Appellant] being present." Appellant's Brief at 16. The amendments included correcting the name of a victim, changing the objective of the conspiracy charge from burglary to PWID, and lowering the grading of the conspiracy charge. N.T., 7/2/08, at 4-6. According to Appellant, "[s]aid amendment outside the presence of appellant disrupted the fairness of the procedure and denied him his Sixth Amendment right to confrontation and his Fifth and Fourteenth Amendment rights to Due Process of law." Id. at 19. Contrarily, the Commonwealth argues, "It is absurd to say that had defense counsel objected to these amendments -- so [Appellant] could have observed the ministerial changes instead of being informed of them a few moments later -- it would have changed the result of the hearing." Commonwealth's Brief at 15.
The PCRA court concluded that this IAC claim lacked merit:
"A defendant is guaranteed the right to be present at any stage of the criminal proceeding that is critical to its outcome if his presence would contribute to the fairness of the procedure." Commonwealth v. Hunsberger, 58 A.3d 32, 37 (Pa. 2012), quoting Kentucky v. Stincer, 482 U.S. 730, 745 (1987). At the beginning of the sentencing hearing, the Commonwealth moved to amend the information to correct the victim's name in Count 31 to Officer Quinn. N.T. 7/2/08 at 4. The CommonwealthPCRA Court Opinion, 10/17/14, at 13-14.
further moved to amend the information to reflect that the charge of criminal conspiracy should be an ungraded felony and that the object of the conspiracy was not burglary, but possession with intent to deliver. N.T. 7/2/08 at 6.
In neither case was [Appellant] prejudiced by counsel's waiver of [Appellant's] presence. The amendment to correct the name of the victim was a purely clerical correction. As for the conspiracy charge, the amendment merely lessened the gravity of the offense and reflected the agreement that had been reached between [Appellant] and the Commonwealth for purposes of the guilty plea. [Appellant's] presence for these ministerial corrections to the information could not have contributed to the fairness of the procedure. Accordingly, the record establishes that trial counsel was not ineffective for failing to object to the amendments being made without [Appellant] being present.
Upon review, we discern support in the record for the PCRA court's findings. Specifically, the record indicates that, with Appellant present in the courtroom, the trial court explained all of the charges and the Commonwealth's burden of proof on each charge. N.T., 7/2/08, at 13-20. The trial court specifically informed Appellant that the conspiracy charge had been amended; it then explained the charge of conspiracy-PWID and the Commonwealth's burden of proof. Id. at 17-18. The Commonwealth presented the factual basis for all of the charges and amendments, which Appellant conceded was accurate. Id. at 20-30, 31-32. When asked if he understood the charges, Appellant answered affirmatively and chose to plead guilty to all of the charges. Id. at 13-20, 34-39. Based on the record before us, we agree with the PCRA court that Appellant's second IAC claim does not warrant relief.
Appellant's third IAC claim is that trial counsel was ineffective for "failing to argue mitigating factors at sentencing relating to a juvenile's diminished culpability and other mitigating factors as recognized by the United States Supreme Court in Roper v. Simmons," 543 U.S. 551 (2005). Appellant's Brief at 20. Relying on science and social science studies, Appellant explains, the Roper Court observed that juveniles lack capacity for mature judgment, are more vulnerable to negative external influence, and lack fully formed characters. Id. In response, the Commonwealth points to the testimony of Dr. Heilbrun as contradicting Appellant's claim. According to the Commonwealth, that testimony "directly concerned [Appellant's] status as a juvenile and his ability to be rehabilitated." Commonwealth's Brief at 17 (citing N.T., 10/14/08, at 36-41).
The PCRA court also disposed of this IAC claim with reference to Dr. Heilbrun's testimony, as follows:
At sentencing, counsel presented the testimony of Dr. Kirk Heilbrun, the court appointed psychologist who examined [Appellant] in preparation of [Appellant's] April 30, 2008 decertification hearing. Dr. Heilbrun testified concerning his evaluation of [Appellant], including his findings regarding [Appellant's] amenability to treatment and rehabilitation as a minor. N.T. 10/14/08 at 36. Dr. Heilbrun further testified concerning [Appellant's] mental capacity as a minor and his prospects for reform. N.T. 10/14/08 at 36-39. Counsel further presented the testimony of several social workers, with whom [Appellant] had been working while incarcerated pending trial, who further testified concerning [Appellant's] demeanor andPCRA Court Opinion, 10/17/14, at 15.
prospects. N.T. 10/14/08 at 62, 66-67. Moreover, the [trial court] explicitly recognized that there were several mitigating factors in this case, including [Appellant's] "horrible, depraved childhood," his young age, his lack of a criminal record, and his acceptance of responsibility for the crimes he committed. N.T. 10/14/2008 at 23-25, 109-110.
As counsel did present mitigating evidence at sentencing, [Appellant's] claim that counsel was ineffective for failing to do so was properly rejected.
Our review of the record reveals support for the PCRA court's findings and no error of law. At sentencing, the trial court possessed a pre-sentence investigative report and a mental health evaluation. N.T., 10/14/08, at 3, Exhibit D-2. Additionally, the trial court heard testimony from Dr. Heilbrun regarding Appellant's family life and academics, his criminal history, his strengths and weaknesses, and his amenability to rehabilitation in the juvenile system. Id. at 30-58. Moreover, the trial court heard character testimony from Sara Morris of Youth Empowerment Project and Michael Gaskins of Philadelphia Lives Center for Transformation, both social workers with organizations that conducted workshops Appellant attended while in the county jail. Id. at 59-69. Lastly, Appellant's uncle testified on his behalf and ten individuals—family members and friends—stood and identified themselves to the sentencing court. Id. at 70-75. Based on the foregoing, we conclude Appellant's IAC claim that counsel failed to present mitigating evidence regarding his youth lacks merit.
Appellant's final IAC claim is directed at PCRA counsel, who, Appellant asserts, "was ineffective for failing to Amend [the] PCRA Petition to include the above issues and for failing to conduct a thorough review of the record to uncover them." Appellant's Brief at 23. According to Appellant, "it is perposterous [sic] to think that an experience [sic] attorney was unable to uncover the above issues, whereas an untrained pro' se [sic] defendant was." Id. at 24. The Commonwealth's counterargument is succinct: "As there are in fact no meritorious issues to raise on [Appellant's] behalf, PCRA counsel was not ineffective." Commonwealth's Brief at 18. The PCRA court's disposition of Appellant's final IAC claim is also brief: "For the reasons stated above, [Appellant's] underlying claims are without merit. Because all of the underlying claims are without merit, the derivative claim of PCRA counsel's ineffectiveness is equally meritless." PCRA Court Opinion, 10/17/14, at 16.
Appellant's claim of PCRA counsel's ineffectiveness is properly before us because he raised it in the PCRA court. Response to Notice of Intent to Dismiss, 5/27/14, at 27. Accord Commonwealth v. Pitts , 981 A.2d 875, 879-880 n.3 & n.4 (Pa. 2009) (holding that claims of PCRA counsel's ineffectiveness must be raised in response to Rule 907 notice or they will be waived on appeal).
Pennsylvania courts routinely recognize the right to effective PCRA counsel. Commonwealth v. Henkel , 90 A.3d 16, 22 (Pa. Super. 2014), appeal denied, 101 A.3d 785 (Pa. 2014) (citations omitted). However, where a petitioner's underlying IAC claim is without arguable merit, PCRA counsel has no basis to assert trial counsel's purported ineffectiveness. Commonwealth v. Freeland , 106 A.3d 768, 780 (Pa. Super. 2014). Here, we have concluded the PCRA court properly ruled that Appellant's underlying claims of trial counsel's ineffectiveness lack merit. Consequently, we further conclude the PCRA court properly ruled that PCRA counsel was not ineffective for failing to raise meritless issues. Freeland , 106 A.3d at 780.
Finally, we address Appellant's complaint that the PCRA court did not conduct a hearing on his petition for collateral relief. Appellant's Brief at 2. As discussed above, Appellant's meritless claims failed to establish any genuine issues of fact entitling him to relief. Therefore, we conclude the PCRA court did not abuse its discretion or commit an error of law by not conducting a hearing. Commonwealth v. Simpson , 66 A.3d 253, 260 (Pa. 2013) ("Where a PCRA petition does not raise a 'genuine issue of material fact,' the reviewing court is not required to hold an evidentiary hearing on the petition.") (citations omitted); Pa.R.Crim.P. 907.
Order affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/5/2015