J-S04006-16



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                          Appellee

                     v.

CURTIS A. SHEERER,

                          Appellant                  No. 1802 WDA 2014


                 Appeal from the PCRA Order October 8, 2014
                 In the Court of Common Pleas of Erie County
             Criminal Division at No(s): CP-25-CR-00002942-2012


BEFORE: BOWES, OLSON, and STRASSBURGER,* JJ.

MEMORANDUM BY BOWES, J.:                        FILED FEBRUARY 16, 2016

       Curtis A. Sheerer appeals pro se from the October 8, 2014 order

denying his first timely PCRA petition after counsel was permitted to

withdraw pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988),

and Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc)

(“Turner/Finley”). We affirm.

       A jury found Appellant guilty of aggravated assault on July 23, 2013.

Appellant, despite notice, failed to appear for sentencing.         The court

sentenced Appellant in his absence on September 17, 2013. It imposed a

sentence of seven and one-half to fifteen years incarceration. Appellant did

not file an appeal. The underlying facts of this matter are as follows.




*
    Retired Senior Judge assigned to the Superior Court.
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       The victim, James McCoy, was at the Lakeside Tavern, in Erie County,

with Kim Schmidt on the evening of June 13, 2012.        Mr. McCoy and Ms.

Schmidt were friends and, according to Mr. McCoy, dating at that time.

Appellant was previously romantically involved with Ms. Schmidt. Mr. McCoy

also had dated a woman named Tabitha Bromley, who at the time of both

the incident and trial in this matter was dating Appellant.     Ms. Bromley

arrived at the bar and began to order drinks for Mr. McCoy. According to Mr.

McCoy, Ms. Bromley was attempting to rekindle their prior relationship. Ms.

Schmidt telephoned Appellant and told him to come pick up his girlfriend,

Ms. Bromley.     Appellant arrived, displeased with Mr. McCoy and Ms.

Bromley.    Appellant chased Mr. McCoy around the parking lot of the bar

before Mr. McCoy left in his vehicle.     Ms. Bromley had also entered Mr.

McCoy’s car and left the bar with him. Appellant then began to chase Mr.

McCoy and Ms. Bromley in his vehicle.         Mr. McCoy pulled into a car

dealership and turned his car lights off and Appellant passed him.

       Mr. McCoy and Appellant did not have additional contact with one

another that night. The next day, Ms. Bromley called Mr. McCoy and invited

him to come to the home of Jennifer Bailey, with whom Ms. Bromley was

staying at the time. Mr. McCoy arrived at Ms. Bailey’s home around 6:00

p.m.    Ms. Bromley and her twenty-year old daughter, Samantha, were

present. Ms. Bailey was inside preparing dinner and another person named

Richard Fahey was also inside.

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        While Mr. McCoy and Ms. Bromley were outside smoking cigarettes,

and Samantha Bromley was also present, Appellant came around the corner

of the home and punched Mr. McCoy on the left side of his face, causing four

fractures and the loss of three teeth. Specifically, Mr. McCoy suffered two

acute sinus fractures and two orbital fractures. The blow to Mr. McCoy’s face

caused him to stumble toward the house. Although Mr. McCoy did not see

who struck him, when he turned around he saw Appellant. Appellant then

ran around the house. Ms. Bailey did not witness the attack, but she did see

a person she believed was Appellant, running away from her home.          She

provided a written statement to police identifying Appellant as the person

who fled from her home, but acknowledged at trial that she did not see his

face.

        Mr. McCoy called 911 and Officer David Pernice arrived to investigate.

Mr. McCoy identified Appellant as his attacker. Ms. Bromley also informed

Officer Pernice that Appellant had punched Mr. McCoy. She then transported

Appellant to the hospital. At trial, however, Ms. Bromley, who as mentioned,

was dating Appellant, declined to identify him as the assailant. 1 Similarly,

Samantha Bromley testified that Appellant was walking down the side of the

Bailey house after Mr. McCoy was struck in the face.       However, she had
____________________________________________


1
  The Commonwealth also introduced Facebook posts from Ms. Bromley to
Mr. McCoy, in which Ms. Bromley indicated that Appellant hit Mr. McCoy on
the day in question.



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earlier provided a written statement to police indicating that Appellant

punched Mr. McCoy.

       Ms. Schmidt testified that she received two text messages from

Appellant on June 14, 2012.          The first message arrived at 6:39 p.m. and

read, “I just punched James in the mouth.”             N.T., 7/23/13, at 49.   Ms.

Schmidt received a second message from Appellant at 6:45 p.m., which

stated, “I just dropped him in one hit.”         Id.    When questioned by trial

counsel as to whether she sent the messages herself, she denied it.        Based

on this evidence, the jury found Appellant guilty of aggravated assault. The

court imposed the aforementioned sentence on September 17, 2013.

       As noted, Appellant did not file a direct appeal.2 However, on June 20,

2014, Appellant filed his underlying pro se PCRA petition. The PCRA court

appointed counsel, who filed a Turner/Finley no-merit letter and petition to

withdraw.      The PCRA court granted counsel’s petition to withdraw and

provided Rule 907 notice of its intent to dismiss Appellant’s petition.

Appellant filed a response and the PCRA court dismissed his petition.

Appellant filed a timely notice of appeal and the PCRA court directed

Appellant to file and serve a Pa.R.A.P. 1925(b) concise statement of errors

complained of on appeal. Appellant complied by filing a boilerplate concise
____________________________________________


2
  PCRA counsel addressed this issue in his Turner/Finley no-merit letter.
Appellant does not contest that he was denied his direct appeal rights in this
matter.



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statement that parroted the PCRA statute but did not raise any specific

issues.   The PCRA court issued an order indicating that the concise

statement’s lack of specificity precluded it from authoring a decision

addressing     Appellant’s   claims.   The   matter   is   now   ready   for   our

consideration. Appellant presents three issues for our review.

      A. Was Appellant denied effective assistance of counsel,
         whereby, his trial attorney offered no defense when there was
         [a] defense available?

      B. Should the lower court have given Appellant an evidentiary
         hearing on “newly discovered evidence”?

      C. Was Appellant denied access to the court by not giving him
         (under court order of this Honorable Court, see attached
         Exhibit “B”, whereby he requested verious [sic] documents,
         police reports, witnesses statements and testimony
         transcripts?

Appellant’s brief at 2.

      In reviewing a PCRA appeal, we consider the record “in the light most

favorable to the prevailing party at the PCRA level.”       Commonwealth v.

Henkel, 90 A.3d 16, 20 (Pa.Super. 2014) (en banc).           In performing this

review, we consider the evidence of record and the factual findings of the

PCRA court. Id. We afford “great deference to the factual findings of the

PCRA court and will not disturb those findings unless they have no support in

the record.”    Id.   Accordingly, so long as a PCRA court’s ruling is free of

legal error and is supported by record evidence, we will not disturb its




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decision. Id. Where the issue presents a question of law, “our standard of

review is de novo and our scope of review is plenary.” Id.

      Preliminarily,   we   agree   with   the   PCRA   court’s   conclusion   that

Appellant’s issues in his Rule 1925(b) statement were boilerplate and that,

because they lacked specificity, it could not address his claims. Appellant’s

Rule 1925(b) concise statement set forth the following issues verbatim:

      A. Ineffictive [sic]     assistance of counsel which, in the
         circumstances of      the particular case, so undermined the
         truth-determining    process that no reliable adjuication [sic] of
         guilt or innocence   could have taken place.

      B. The inavailability [sic] at the time of trial of exculpatory
         evidence that has subsequently become available and would
         have changed the outcome of the trial if it had been
         introduce[d].

      C. The improper obstruction by government officials of the
         petitioner’s right of appeal where a meritorious appealable
         issue existed and was properly preserved in the records, and

      D. A violation of the Constitution of this Commonwealth and the
         Constitution of the United States which, in the circumstances
         of the particular cause [sic], so undermined the truth-
         determining process that no relable [sic] adjudocation [sic] of
         guilt or innocence could have taken place.

Appellant’s Pa.R.A.P. 1925(b) concise statement, 11/10/14.           These issues

merely repeated subsections of the PCRA statute.          As Appellant failed to

adequately preserve his first two issues in his Rule 1925(b) statement, they

are waived; further, they are without merit.        Insofar as Appellant’s third

issue leveled on appeal contends that he was not provided the necessary

transcripts to effectuate his appeal, we find that he is not entitled to relief.

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      Appellant argues that he was not supplied with his preliminary hearing

or trial transcripts. First, we note that Appellant’s claims do not relate to his

preliminary   hearing;   moreover,    Appellant     could   not   establish   actual

prejudice relative to issues that transpired at his preliminary hearing. See

Commonwealth v. Stultz, 114 A.3d 865 (Pa.Super. 2015). To the extent

Appellant claims that his trial transcripts were not provided, we acknowledge

that both the PCRA court and this Court entered orders directing that

Appellant be provided with his trial transcripts.

      The Commonwealth posits in its brief that it provided a copy of its file

to Appellant without the transcript and avers that original PCRA counsel

turned over his file to Appellant. Even assuming Appellant did not receive

his transcripts from either the PCRA court or PCRA counsel, he does not

argue how this omission prejudiced him in his ability to address his merits

based arguments.

      Appellant’s first issue on appeal relates to trial counsel not presenting

certain witnesses, permitting inculpatory text messages he sent that were

purportedly not turned over in discovery into evidence, and that another

person admitted to committing the assault. The only portion of Appellant’s

argument that relates to evidence that would have been part of the

transcript pertains to the text messages. There is no dispute by the parties

or in the record regarding those communications. Thus, the alleged lack of a

trial transcript could not have prejudiced Appellant’s ability to address his

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issue.    Appellant’s contention is that the messages were not contained in

discovery. PCRA counsel below inquired into this matter and learned from

trial counsel that these messages were provided in discovery.            Further,

additional evidence demonstrated that Appellant struck the victim in this

matter.

         Similarly, the absence of a transcript would have little impact on

Appellant’s ability to litigate his extra-record ineffectiveness claim relative to

counsel’s failure to present certain witnesses.          “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. Stewart, 84 A.3d 701, 706

(Pa.Super. 2013) (en banc). The failure to meet any of these aspects of the

ineffectiveness test results in the claim failing. Id.

         A claim has arguable merit where the factual predicate is accurate and

“could establish cause for relief.”     Id.   at 707.    A determination as to

whether the facts asserted present a claim of arguable merit is a legal one.

Id.   In considering whether counsel acted reasonably, we do not use a

hindsight analysis; rather, an attorney’s decision is considered reasonable if

it effectuated his client’s interests. Id. Only where “no competent counsel

would have chosen that action or inaction, or, the alternative, not chosen,

offered a significantly greater potential chance of success[,]” will counsel’s

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strategy be considered unreasonable. Id. Finally, actual prejudice exists if

“there is a reasonable probability that, but for counsel's errors, the result of

the proceeding would have been different.” Id. It is presumed that counsel

renders effective representation.

       Where the issue involves an attorney’s failure to call a witness, the

petitioner must prove: (i) the witness existed; (ii) the witness was available

to testify; (iii) counsel knew of, or should have known of, the existence of

the witness; (iv) the witness was willing to testify; and (v) the absence of

the testimony was so prejudicial as to have denied the defendant a fair trial.

Commonwealth           v.    Chmiel,      30   A.3d   1111,   1143   (Pa.   2011);

Commonwealth v. Cox, 983 A.2d 666, 692 (Pa. 2009).

       In his brief, Appellant specifically refers to Johnathan Schwab and

Forest Vannucci. These men, according to Appellant, would offer testimony

that another person, Bobby McClelland, admitted to them to striking the

victim.3    This evidence, if introduced for its truth, would be inadmissible

hearsay.4      Thus, the evidence could only be introduced as possible

____________________________________________


3
   There was testimony at trial that Mr. McClelland, eighteen years old at the
time of the incident, was present in the area. However, no one identified
him as the attacker. Mr. McClelland is now deceased.
4
    It is unclear whether Mr. McClelland was deceased at the time of trial,
thereby implicating the statement against interest exception to the hearsay
rule. However, such a statement must be supported by corroborating
circumstances that clearly indicate trustworthiness. See Pa.R.E. 804(b)(3).



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impeachment evidence.          Appellant does not develop any argument in this

regard and every witness to the incident either identified Appellant as the

assailant at one time, or acknowledged that he fled the area after the

assault.

       As to unnamed other witnesses whom Appellant claims would have

testified that the victim had a disreputable character and angered other

people who would have had a motive to assault the victim, his failure to

identify these witnesses is fatal.        Furthermore, Appellant has neglected to

proffer any admissible testimony that these alleged witnesses could have

provided.

       Appellant’s second issue leveled on appeal also does not require the

trial transcript to materially advance his position. That claim argues that he

learned of newly-discovered evidence in the nature of information from

Johnathan Schwab that another individual struck the victim and that Mr.

Schwab’s mother, Kim Schmidt, lied at trial about the text messages.5 The

initial portion of Appellant’s claim is inconsistent with his first issue where he

alleges counsel was ineffective for failing to present Mr. Schwab. Moreover,

Appellant fails to indicate in any manner how this evidence could not have

been ascertained prior to trial.
____________________________________________


5
  Appellant’s theory is that Kim Schmidt, the mother of Johnathan Schwab,
and Appellant’s former girlfriend, kept Appellant’s cell phone, and somehow
knew of the attack and then texted herself from Appellant’s phone.



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      This Court has explained in the PCRA context that a “petitioner must

plead and prove by a preponderance of the evidence ‘the unavailability at

the time of trial of exculpatory evidence that has subsequently become

available and would have changed the outcome of the trial if it had been

introduced.’   42   Pa.C.S.   §   9543(a)(2)(vi).”       Commonwealth          v.

Foreman, 55 A.3d 532, 537 (Pa.Super. 2012). In addition, this Court has,

in Commonwealth v. Padillas, 997 A.2d 356 (Pa.Super. 2010), opined

that a petitioner must show the evidence “(1) could not have been obtained

prior to the conclusion of the trial by the exercise of reasonable diligence;

(2) is not merely corroborative or cumulative; (3) will not be used solely to

impeach the credibility of a witness; and (4) would likely result in a different

verdict if a new trial were granted.” Id. at 363; see also Commonwealth

v. Walker, 36 A.3d 1, 14 n.17 (Pa. 2011). Failure to satisfy any of these

aspects of the test results in the claim failing. Padillas, supra at 363.

      Mr. Schwab’s proffered testimony that another person admitted to

committing the crime and that his mother stated that she lied at trial also

would be hearsay if introduced for its truth.        Further, after-discovered

evidence claims generally cannot succeed if the evidence will be used solely

for impeachment purposes.      In sum, Appellant’s first two issues are both

waived and without merit and his final issue does not entitle him to relief.

      Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/16/2016




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