Com. v. Bethea, H.

Opinion

J-S23023-21

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : HILLARD BETHEA : : Appellant : No. 175 EDA 2021

Appeal from the PCRA Order Entered December 17, 2020, in the Court of Common Pleas of Philadelphia County, Criminal Division at No(s): CP-51-CR-0005123-2008.

BEFORE: LAZARUS, J., KUNSELMAN, J., and COLINS, J.*

MEMORANDUM BY KUNSELMAN, J.: FILED SEPTEMBER 10, 2021

Hillard Bethea appeals from the order denying his first timely petition

filed pursuant to the Post Conviction Relief Act (“PCRA”). 42 Pa.C.S.A. §§

9541-46. We affirm.

On direct appeal, this Court summarized:

The underlying facts of the case are not in direct dispute in this appeal. During the early morning hours of Thursday, March 13, 2008, [Bethea] left his home in Elkins Park, Montgomery County and drove a stolen van into the Kensington section of Northeast Philadelphia. There, he solicited a prostitute, the victim. She agreed to provide a combination of oral and vaginal sex (with a condom), for forty dollars. The two drove off in the stolen van, and after stopping at a store for [Bethea] to buy the condom, they went to a nearby parking lot.

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* Retired Senior Judge assigned to the Superior Court. J-S23023-21

While having sex in the back of the van, [Bethea] removed the condom he was wearing and proceeded to urinate on the victim as well as continue vaginal intercourse, now unprotected. The victim protested these and other related acts and began to fight with [Bethea]. He punched her in the face with his fists. When they heard another car start up, the victim tried to get the attention of the other motorist by kicking and yelling loudly. [Bethea] tied a rope around her neck, knotted it, and pulled it from both sides, choking her.

[Bethea] then ran to the front of the van and began to drive away. The victim followed him to the front of the van. She tried to get out, but the doors were locked. While driving erratically, [Bethea] pulled out a thirteen-inch serrated commercial grade kitchen knife and began stabbing at the victim over his right shoulder. She suffered stab wounds to her left leg, thigh, calf, buttock, and palm, right arm, and face. Color photographs introduced by the Commonwealth as trial exhibits confirm that the stab injuries were numerous, deep, and severe. The victim testified that she thought she was going to die.

Then the victim saw a ballpeen hammer on the floor of the van. She picked it up and began hitting [Bethea] with it in the area of his right eye, until he crashed the van into a pole. The victim, naked except for socks and sneakers, tried to retrieve her clothes, but [Bethea] would not let her, punching her in the face. He drove off, leaving her behind, naked and bleeding.

Onlookers called the police, who found the van in an apartment parking lot, and confirmed it was stolen. They then traced [Bethea] through the identification he had left in his wallet on the floor of the van. The victim also identified [Bethea] from a photo array. Cheltenham police arrested [Bethea] at his home in Elkins Park on a warrant from the Philadelphia police.

Commonwealth v. Bethea, 185 A.3d 364, 366-67 (Pa. Super. 2018)

(citations and footnotes omitted).

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We also summarized the procedural history of the case, which included

a prior appeal and remand, as follows:

On November 1, 2010, [Bethea] waived his right to a jury and proceeded to a bench trial. In the middle of the trial, on November 4, 2010, the parties agreed to a negotiated open plea in which [Bethea] would plead guilty to aggravated assault, possession of an instrument of crime, and unauthorized use of an automobile. In return, the Commonwealth agreed to withdraw the charges of attempted murder, rape, and aggravated indecent assault.

On February 15, 2011, the trial court imposed an aggregate sentence of not less than seven nor more than twenty years of incarceration in a state correctional institution. [Bethea] was extremely upset, and had to be subdued by the sheriff staff. [Bethea] filed a pro se motion to withdraw his plea of guilty on February 24, 2011. He claimed, inter alia, that he had not been properly informed of the maximum possible sentence, and in fact, had been assured of a lighter sentence [or] sixty-four months’ imprisonment. The trial court denied the motion to withdraw the plea. [Bethea] appealed.

On July 11, 2012, a predecessor panel of this Court, noting discrepancies in the maximum length of sentence stated in the written and oral guilty plea colloquies, vacated [Bethea’s] judgment of sentence and remanded for trial.

Bethea, 185 A.3d at 367-68 (citation and footnotes omitted).

Following remand, the trial court held a hearing on various motions,

including Bethea’s pro se motion for recusal. “The trial judge refused to recuse

herself, noting that in a jury trial the jury, not she, would be the finder of

fact.” Id. at 368.

On February 4, 2014, a jury convicted Bethea of aggravated assault,

rape, possession of an instrument of crime, and unauthorized use of a motor

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vehicle. On November 21, 2014, the trial court found Bethea to be a sexually

violent predator and sentenced him to an aggregate term of 23½ to 47 years

of incarceration. Bethea filed a timely appeal to this Court in which he

challenged the trial court’s denial of his Pa.R.Crim.P. 600 motion, and an

alleged error that occurred during jury section. Bethea, 185 A.3d at 369.

Finding no merit to either claim, we affirmed his judgment of sentence.

Bethea, supra.

On April 23, 2019, Bethea filed a pro se PCRA petition. The PCRA court

appointed counsel, but the petition was held in abeyance until Bethea’s

pending petition for allowance of appeal was considered. On November 5,

2019, our Supreme Court denied Bethea’s petition. Commonwealth v.

Bethea, 219 A.3d 597 (Pa. 2019).

On March 20, 2020, PCRA counsel filed an amended PCRA petition. The

Commonwealth filed a motion to dismiss the petition on July 20, 2020. On

November 13, 2020, the PCRA court issued a Pa.R.Crim.P. 907 notice of its

intent to dismiss Bethea’s PCRA petition without a hearing. Bethea did not file

a response. By order entered December 17, 2020, the PCRA court denied

Bethea’s petition. This timely appeal followed. The PCRA court did not require

Pa.R.A.P. 1925 compliance.

Bethea raises the following issues on appeal:

I. Whether the [PCRA] court erred in denying [Bethea’s] PCRA petition without an evidentiary hearing on the issues raised in the amended PCRA petition regarding trial counsel’s ineffectiveness.

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II. Whether the [PCRA] court was in error in not granting relief on the issue that counsel was ineffective for the following reasons:

a. Counsel was ineffective for failing to file a post[-] verdict motion that the verdict was against the weight of the evidence.

b. Counsel was ineffective for failing to file a motion for reconsideration of sentence.

c. Appellate counsel was ineffective for failing to appeal [the denial of the] recusal of trial judge motion.

d. Appellate counsel was ineffective for failing to appeal [the] issue that the charges were contrary to law[.]

Bethea’s Brief at 7.

This Court’s standard of review regarding an order dismissing a petition

under the PCRA is to ascertain whether “the determination of the PCRA court

is supported by the evidence of record and is free of legal error. The PCRA

court’s findings will not be disturbed unless there is no support for the findings

in the certified record.” Commonwealth v. Barndt, 74 A.3d 185, 191-92

(Pa. Super. 2013) (citations omitted).

The PCRA court has discretion to dismiss a petition without a hearing when the court is satisfied that there are no genuine issues concerning any material fact, the defendant is not entitled to post-conviction collateral relief, and no legitimate purpose would be served by further proceedings. To obtain a reversal of a PCRA court’s decision to dismiss a petition without a hearing, an appellant must show that he raised a genuine issue of material fact which, if resolved in his favor, would have entitled him to relief, or that the court otherwise abused its discretion in denying a hearing.

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Commonwealth v. Blakeney, 108 A.3d 739, 750 (Pa. 2014) (citations

omitted).

In his four substantive claims set forth in issue II of his brief, Bethea

challenges the effectiveness of trial and appellate counsel. To obtain relief

under the PCRA premised on a claim that counsel was ineffective, a petitioner

must establish by a preponderance of the evidence that counsel’s

ineffectiveness so undermined the truth determining process that no reliable

adjudication of guilt or innocence could have taken place. Commonwealth

v. Johnson, 966 A.2d 523, 532 (Pa. 2009). “Generally, counsel’s

performance is presumed to be constitutionally adequate, and counsel will

only be deemed ineffective upon a sufficient showing by the petitioner.” Id.

This requires the petitioner to demonstrate that: (1) the underlying claim is

of arguable merit; (2) counsel had no reasonable strategic basis for his or her

action or inaction; and (3) the petitioner was prejudiced by counsel's act or

omission. Id. at 533. A finding of "prejudice" requires the petitioner to show

"that there is a reasonable probability that, but for counsel’s unprofessional

errors, the result of the proceeding would have been different." Id. A failure

to satisfy any prong of the test for ineffectiveness will require rejection of the

claim. Commonwealth v. Martin, 5 A.3d 177, 183 (Pa. 2010).

When attempting to prove ineffectiveness, the burden is always on the

PCRA petitioner. While claims of trial court error may support the arguable

merit element of an ineffectiveness claim, a PCRA petitioner must

meaningfully discuss each of the three prongs of the ineffectiveness claim in

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order to prove that he is entitled to relief. Commonwealth v. Reyes-

Rodriguez, 111 A.3d 775, 780 (Pa. Super. 2015). To this end, failure to elicit

testimony from trial counsel regarding the reasonable basis for trial counsel’s

actions is fatal to a PCRA claim of ineffectiveness. See Commonwealth v.

Koehler, 36 A.3d 121, 146-47 (Pa. 2012). It is petitioner’s burden to

produce counsel at a PCRA evidentiary hearing in order to meet his burden of

proof that his claims warrant relief. Commonwealth v. Jones, 596 A.2d 885

(Pa. Super. 1991).

Here, the PCRA court has authored a thorough and well-reasoned

opinion supporting the denial of post-conviction relief. The Honorable Linda

K. Carpenter has addressed each of Bethea’s ineffectiveness claims with

proper citation to legal authorities and citation to the certified record. We

discern no legal errors in Judge Carpenter’s analysis and/or an abuse of

discretion when rejecting Bethea’s claims. As such, we adopt Judge

Carpenter’s opinion as our own in affirming the order denying Bethea post-

conviction relief. See PCRA Court’s Opinion, 1/6/21, at unnumbered 7-9

(concluding that Bethea could not prove prejudice regarding trial counsel’s

failure to file a post-verdict motion challenging the weight of the evidence;

given all the evidence presented at trial, the jury’s guilty verdict did not shock

one’s sense of justice); at unnumbered 9-11 (concluding Bethea could not

prove prejudice regarding trial counsel’s failure to file a motion for

reconsideration of sentence; because the trial court provided reasons for its

sentence and explained that the aggregate sentence included a rape

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conviction when his original plea did not); at unnumbered 11-13 (concluding

appellate counsel was not ineffective for failing to appeal the denial of Bethea’s

pro se recusal motion; the trial court was no longer the fact-finder, and Bethea

failed to establish the court’s bias against him); and at unnumbered 13-16

(concluding appellate counsel was not ineffective for failing to challenge his

convictions as being “contrary to law;” the evidence trial was more than

sufficient to sustain Bethea’s convictions).1

Finally, because we agree with Judge Carpenter that Bethea’s

ineffectiveness claims did not warrant an evidentiary hearing, Bethea’s claim

to the contrary at issue I in his brief fails. Blakeney supra.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 9/10/2021

1 The parties are directed to attach Judge Carpenter’s January 6, 2021, opinion

to this memorandum in any future appeal.

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