783 A.2d 328 (Pa.Super. 2001), Commonwealth v. Thomas

Citation783 A.2d 328
Opinion JudgeThe opinion of the court was delivered by: Kelly, J.
Party NameCOMMONWEALTH of Pennsylvania, Appellee v. Frederick THOMAS, Appellant.
Case DateSeptember 06, 2001
CourtSuperior Court of Pennsylvania

Page 328

783 A.2d 328 (Pa.Super. 2001)

COMMONWEALTH of Pennsylvania, Appellee

v.

Frederick THOMAS, Appellant.

Superior Court of Pennsylvania

September 6, 2001.

Submitted June 11, 2001.

Page 329

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Page 330

[Copyrighted Material Omitted]

Page 331

George H. Newman, Philadelphia, for appellant.

Catherine L. Marshall, Asst. Dist Atty., Philadelphia, for the Com., appellee.

Before: JOHNSON, MUSMANNO, and KELLY, JJ.

KELLY, J.:

¶ 1 Appellant, Frederick Thomas, asks us to determine whether the trial court erred when it denied his petition for post conviction collateral relief filed pursuant to the Post Conviction Relief Act ("PCRA").1 We hold that the trial court properly denied Appellant's PCRA petition and affirm the court's order.

¶ 2 The relevant facts and procedural history of this case are as follows. On April 24, 1996, after a waiver trial, Appellant was convicted of aggravated assault,2 simple assault,3 carrying firearms on public streets,4 and recklessly endangering another person.5 The trial court sentenced Appellant to a total term of seven and one-half to fifteen years' incarceration. Represented by new counsel on direct appeal, Appellant sought review of his judgment of sentence. On December 9, 1997, this Court affirmed Appellant's judgment of sentence. On September 28, 1998, Appellant filed a pro se PCRA petition for relief and the PCRA court appointed counsel. Appellant's PCRA attorney subsequently filed a "no merit" letter with the court, asserting that the issues set forth in Appellant's petition lacked merit and that no further issues could be raised in an amended, counseled petition. On November 9, 1999, the PCRA court dismissed Appellant's petition and granted Appellant's PCRA attorney leave to withdraw. With newly obtained pro bono counsel, Appellant brings this timely appeal.

¶ 3 On appeal, Appellant raises several issues for our consideration:

1. WAS APPELLANT DENIED HIS RIGHT TO EFFECTIVE ASSISTANCE OF POST CONVICTION

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COUNSEL DURING POST-CONVICTION PROCEEDINGS?

2. IS APPELLANT ENTITLED TO A NEW TRIAL BECAUSE COUNSEL WAS INEFFECTIVE IN FAILING TO IMPEACH THE PROSECUTION'S SOLE EYEWITNESS WITH THAT WITNESS' PENDING CRIMINAL CHARGES IN VIOLATION OF APPELLANT'S FIFTH, SIXTH AND FOURTEENTH AMENDMENT RIGHTS AS WELL AS HIS RIGHTS UNDER ARTICLE I, SECTION 9 OF THE PENNSYLVANIA CONSTITUTION[?]

3. WAS APPELLANT DENIED HIS STATE AND FEDERAL CONSTITUTIONAL RIGHT TO TESTIFY?

4. IS APPELLANT ENTITLED TO RELIEF FROM HIS CONVICTION BECAUSE THE PROSECUTOR ENGAGED IN MISCONDUCT DURING THE TRIAL WHEN HE SHIFTED THE BURDEN OF PERSUASION BY COMMENTING ON THE ABSENCE OF A POTENTIAL WITNESS FOR THE DEFENSE, DEPRIVING APPELLANT OF HIS RIGHTS UNDER THE FIFTH, SIXTH AND FOURTEENTH AMENDMENTS AND THE CORRESPONDING PROVISIONS OF THE PENNSYLVANIA CONSTITUTION?

5. IS APPELLANT ENTITLED TO RELIEF FROM HIS CONVICTION AND SENTENCE BECAUSE TRIAL COUNSEL LABORED UNDER A CONFLICT OF INTEREST IN VIOLATION OF APPELLANT'S STATE AND FEDERAL RIGHT TO COUNSEL ACTING IN HIS INTEREST?

6. DID THE DISTRICT ATTORNEY'S FAILURE TO TURN OVER THE TRIAL DISCOVERY TO APPELLANT OR UNDERSIGNED COUNSEL DENY APPELLANT HIS RIGHT TO MEANINGFUL POST-CONVICTION REVIEW AND EFFECTIVE ASSISTANCE OF POST-CONVICTION COUNSEL?

7. WERE ALL PRIOR COUNSEL INEFFECTIVE?

8. IS APPELLANT ENTITLED TO RELIEF FROM HIS CONVICTION AND SENTENCE BECAUSE OF THE CUMULATIVE EFFECT OF THE ERRORS?

(Appellant's Brief at 2).

¶ 4 Our scope of review when examining a PCRA court's denial of relief is limited to determining whether the court's findings are supported by the record and the order is otherwise free of legal error. Commonwealth v. Yager, 454 Pa.Super. 428, 685 A.2d 1000, 1003 (1996) (en banc), appeal denied, 549 Pa. 716, 701 A.2d 577 (1997) (citations omitted); Commonwealth v. Gaskins, 692 A.2d 224, 226 (Pa.Super.1997). This Court will not disturb the findings of the PCRA court unless they have no support in the record. Id.

¶ 5 In his first, second, third, and seventh issues, Appellant raises various claims of ineffective assistance of counsel. Our standard of review when faced with a claim of ineffective assistance of counsel is well settled.

First, counsel is presumed to be effective and the burden of demonstrating ineffectiveness rests on appellant. To prevail on a claim of ineffectiveness, appellant must show that his underlying contentions possess arguable merit. Finding no merit, our inquiry would cease because counsel will not be

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deemed ineffective for failing to pursue a baseless or meritless claim. If appellant's contention is found to be of arguable merit, he must also establish that the course chosen by counsel had no reasonable basis designed to effectuate his client's interests. Finally, appellant must show how counsel's commission or omission prejudiced appellant.

Commonwealth v. Harrison, 444 Pa.Super. 103, 663 A.2d 238, 240 (1995), appeal denied, 544 Pa. 602, 674 A.2d 1067 (1996) (internal citations omitted). The PCRA does not impose a more onerous burden on an appellant alleging ineffective assistance of counsel than that required on direct appeal. Commonwealth v. Kimball, 555 Pa. 299, 724 A.2d 326 (1999). Where it is clear that the prejudice prong has not been met, we may dispose of the claim on that basis alone, without determining the other two prongs. Commonwealth v. Wilson, 543 Pa. 429, 440, 672 A.2d 293, 298 (1996), certiorari denied, 519 U.S. 951, 117 S.Ct. 364, 136 L.Ed.2d 255 (1996); Commonwealth v. Paolello, 542 Pa. 47, 76, 665 A.2d 439, 454 (1995).

¶ 6 In his first issue, Appellant argues that his PCRA counsel was ineffective because he failed to review the record thoroughly, failed to investigate Appellant's claims, and conducted limited discussion with Appellant. Appellant contends that his PCRA counsel's ineffective assistance resulted in the denial of meaningful PCRA review of his meritorious issues. We disagree.

¶ 7 Counsel will not be found ineffective in a vacuum. Commonwealth v. Horton, 434 Pa.Super. 478, 644 A.2d 181 (1994). This Court will not consider claims of ineffectiveness without some showing of factual predicate upon which counsel's assistance may be evaluated. Commonwealth v. Coleman, 445 Pa.Super. 199, 664 A.2d 1381, 1386 (1995), appeal denied, 545 Pa. 675, 682 A.2d 306 (1996).

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40 practice notes
  • Commonwealth v. Curry, 110415 PACP, CR-637-2011
    • United States
    • November 4, 2015
    ...to vitiate a knowing and intelligent decision by the client not to testify in his own behalf. Commonwealth v. Thomas, 2001 PA Super 263, 783 A.2d 328, 334 (Pa.Super. 2001)(collecting cases). See also Commonwealth v. O'Bidos, 2004 PA Super 131, 849 A.2d 243, 250 (Pa.Super. 2004). In other wo......
  • 836 A.2d 956 (Pa.Super. 2003), Commonwealth v. Murray
    • United States
    • Pennsylvania Superior Court of Pennsylvania
    • November 13, 2003
    ...whether the court's findings are supported by the record and the order is otherwise free of legal error. Commonwealth v. Thomas, 783 A.2d 328, 332 (Pa.Super.2001). [3] We recognize that it is a fundamental principle that new issues may not be raised on appeal. We are also aware that the iss......
  • 849 A.2d 243 (Pa.Super. 2004), Commonwealth v. O'Bidos
    • United States
    • Pennsylvania Superior Court of Pennsylvania
    • April 23, 2004
    ...for preventing appellant from testifying on his own behalf at trial. To address this issue, we are guided by Commonwealth v. Thomas, 783 A.2d 328 (Pa.Super.2001), which provides that the decision to testify on one's own behalf: is ultimately to be made by the accused after full consultation......
  • Commonwealth v. Ridley, 111020 PASUP, 3244 EDA 2019
    • United States
    • Pennsylvania Superior Court of Pennsylvania
    • November 10, 2020
    ...is the trial judge rather than a jury. Commonwealth v. Dent, 837 A.2d 571, 582 (Pa. Super. 2003); Commonwealth v. Thomas, 783 A.2d 328, 335 (Pa. Super. 2001). Commonwealth v. Irwin, 579 A.2d 955, 957 (Pa. Super. 1990). "[T]rial judges sitting as fact finders in......
  • Request a trial to view additional results
40 cases
  • Commonwealth v. Curry, 110415 PACP, CR-637-2011
    • United States
    • November 4, 2015
    ...to vitiate a knowing and intelligent decision by the client not to testify in his own behalf. Commonwealth v. Thomas, 2001 PA Super 263, 783 A.2d 328, 334 (Pa.Super. 2001)(collecting cases). See also Commonwealth v. O'Bidos, 2004 PA Super 131, 849 A.2d 243, 250 (Pa.Super. 2004). In other wo......
  • 836 A.2d 956 (Pa.Super. 2003), Commonwealth v. Murray
    • United States
    • Pennsylvania Superior Court of Pennsylvania
    • November 13, 2003
    ...whether the court's findings are supported by the record and the order is otherwise free of legal error. Commonwealth v. Thomas, 783 A.2d 328, 332 (Pa.Super.2001). [3] We recognize that it is a fundamental principle that new issues may not be raised on appeal. We are also aware that the iss......
  • 849 A.2d 243 (Pa.Super. 2004), Commonwealth v. O'Bidos
    • United States
    • Pennsylvania Superior Court of Pennsylvania
    • April 23, 2004
    ...for preventing appellant from testifying on his own behalf at trial. To address this issue, we are guided by Commonwealth v. Thomas, 783 A.2d 328 (Pa.Super.2001), which provides that the decision to testify on one's own behalf: is ultimately to be made by the accused after full consultation......
  • Commonwealth v. Ridley, 111020 PASUP, 3244 EDA 2019
    • United States
    • Pennsylvania Superior Court of Pennsylvania
    • November 10, 2020
    ...is the trial judge rather than a jury. Commonwealth v. Dent, 837 A.2d 571, 582 (Pa. Super. 2003); Commonwealth v. Thomas, 783 A.2d 328, 335 (Pa. Super. 2001). Commonwealth v. Irwin, 579 A.2d 955, 957 (Pa. Super. 1990). "[T]rial judges sitting as fact finders in......
  • Request a trial to view additional results