J-S26019-14 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF : PENNSYLVANIA
Appellee :
:
v. :
:
MELVIN BLAMO, :
:
Appellant : No. 1519 EDA 2013
Appeal from the PCRA Order Entered April 26, 2013, In the Court of Common Pleas of Philadelphia County, Criminal Division, at No. CP-51-CR-0704391-2006.
BEFORE: BENDER, P.J.E., SHOGAN and FITZGERALD*, JJ. MEMORANDUM BY SHOGAN, J.: FILED AUGUST 27, 2014 Appellant, Melvin Blamo, appeals from the denial of his petition filed
9546. We affirm.
We previously summarized the relevant facts and procedural history of this appeal as follows:
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the checking account of Alhaji Tholley. On June 22, 2006, Co-
defendant, Appellant, and approximately ten cohorts confronted Mr. Tholley at a local park. The men approached Mr. Tholley, surrounded him, and brandished firearms. Co-defendant warned Mr. Tholley not to appear in court to testify against Co-defendant in the theft case. Following this warning, the men beat Mr.
attempted to intervene. At that point, Mr. Tholley and Mr.
Dukaray fled. During their flight, one of the assailants drew his weapon, opened fire, and shot Mr. Dukaray in the back. Mr.
Dukaray required hospitalization for his injuries.
____________________
*Former Justice specially assigned to the Superior Court.
J-S26019-14
Appellant and Co-defendant proceeded to a joint trial on May 20, 2009.2 Following jury selection, the Commonwealth informed the court that it could not locate Mr. Tholley, and it did not expect him to appear at trial. Consequently, the
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receiving evidence regarding the Commonweal locate Mr. Tholley, the court permitted the introduction of Mr.
testimony into the record. Mr. Tholley surprised everyone and actually appeared at trial to testify in person on May 22, 2009.
At the conclusion of trial, the jury found Appellant guilty of aggravated assault, retaliation against a witness, intimidation of a witness, and conspiracy.
2
Co-defendant absconded prior to the start of trial, and the court tried him in absentia.
On June 30, 2009, the court sentenced Appellant to an aggregate term of one hundred twenty-three (123) to three hundred sixty (360) months of imprisonment. Appellant timely filed a motion for reconsideration of sentence on July 7, 2009.
Thereafter, Appellant obtained new counsel. On August 31, 2009, new counsel filed a supplemental post-sentence motion on
alleged trial counsel was ineffective for failing to present character witnesses. The court subsequently determined the ineffectiveness challenge should be deferred to collateral review.
reconsideration of sentence was denied by operation of law.
Appellant timely filed a notice of appeal on December 31, 2009. On January 21, 2010, the court ordered Appellant to file a concise statement of matters complained of on appeal, pursuant to Pa.R.A.P. 1925(b). Appellant subsequently complied with the
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Commonwealth v. Blamo, 29 A.3d 826, 43 EDA 2010 (Pa. Super. 2011) (unpublished memorandum at 1 3). We affirmed the judgment of sentence on April 8, 2011.
Appellant filed a counseled petition pursuant to the PCRA on May 7, 2012, which, after notice, the PCRA court dismissed without a hearing on April 26, 2013. Appellant filed a timely notice of appeal. The PCRA court directed Appellant to file a concise statement of the errors complained of on appeal within twenty-one days of the date of the order pursuant to Pa.R.A.P. 1925(b), or by July 15, 2013. The record certified to us on appeal revealed that while no such statement was filed or docketed, it appeared that a Rule 1925(b) statement had been served upon the Philadelphia District Attorney on July 15, 2013. Thus, on July 11, 2014, this Court directed Appellant to file of record the Rule 1925(b) statement previously served on the Commonwealth. The resulting supplemental record was then certified and transmitted to this Court.
Appellant raises the following single issue on appeal:
he was afforded ineffective assistance of trial counsel whose decision to forego the presentation of readily available character witnesses was objectively unreasonable and prejudiced appellant.
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J-S26019-14
Our standard of review of an order denying PCRA relief is whether the findings of the PCRA court are supported by the record and are free of legal error. Commonwealth v. Spotz, 18 A.3d 244, 259 (Pa. 2011); Commonwealth v. Hernandez, 79 A.3d 649, 651 (Pa. Super. 2013). It is
his conviction or sentence resulted from one or more of the enumerated
determinations, when supported by the record, are binding on this Court. Spotz, 18 A.3d at 259.
Counsel is presumed effective, and Appellant bears the burden of provin Commonwealth v. Koehler, 36 A.3d 121, at 132 (Pa. 2012). To rebut that presumption, Appellant must
prejudiced him. Strickland v. Washington, 466 U.S. 668, 687 691 (1984). Our Supreme Court has characterized the Strickland standard as tripartite. Commonwealth v. Pierce, 527 A.2d 973, 975 (Pa. 1987). Thus, to prove ineffective assistance of counsel, Appellant must demonstrate that: (1) the underlying iss lacked an objective reasonable basis; and (3) Appellant was prejudiced by Koehler, 36 A.3d at 132. Moreover, counsel
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J-S26019-14
cannot be deemed ineffective for failing to raise a meritless claim. Commonwealth v. Harris, 852 A.2d 1168, 1173 (Pa. 2004).
assistance is deemed constitutionally effective if he chose a particular course that had some reasonable basis designed to eff Koehler, 36 A.3d at 132 (quoting Commonwealth v. Colavita, 993 A.2d
e
Commonwealth v.
Ly, 980 A.2d 61, 73 (Pa. 2009). A court is not required to analyze the
fails under any necessary element of the Strickland test, the court may Koehler, 36 A.3d at 132.
present the testimony of witnesses, Appellant must show that:
(1) the witness existed; (2) the witness was available; (3) trial counsel was informed of the existence of the witness or should
prepared to cooperate and would have testified on the
ence of the testimony
prejudiced the petitioner. Commonwealth v. Miller, 868 A.2d 578, 581-82 (Pa. Super. 2005) (quotation omitted).
Commonwealth v. Hammond, 953 A.2d 544, 556 (Pa. Super. 2008).
minal
prosecution must be limited to his general reputation for the
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particular trait or traits of character involved in the commission Commonwealth v. Luther, 317 Pa.
Super. 41, 463 A.2d 1073, 1077 (1983) (citations omitted).
evidence must relate to a period at or about the time the
testimony of witnesses as to the community opinion of the Id. at 1077-78 (citations omitted) (emphasis in original).
Commonwealth v. Lauro, 819 A.2d 100, 109 (Pa.Super. 2003). Failure to
ineffectiveness. Id.
The PCRA Court has filed a sufficient and complete analysis of the issue presented on appeal in its Pa.R.A.P. 1925(a) opinion, and we rely upon it in affirming this case. We supplement that decision in one minor respect.
s character evidence, PCRA petition, 5/7/12, at unnumbered 3, and he cites this contention as support for his claim that he was prejudiced
Our review of the trial testimony, however, discloses a vigorous defense that
victim. N.T., 5/22/09, at 28 46. Indeed, in his appellate brief, Appellant
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J-S26019-14
As noted above, the PCRA court has completely addressed the issue Appellant presented in his petition, and we adopt its reasoning as our own. Accordingly, we affirm the order denying PCRA relief.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 8/27/2014
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IN THE COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY FIRST JUDICIAL DISTRICT OF PENNSYLV ANIA
COMMONWIEALTH OF PENNSYLVANIA CP·51-CR·0704391·2006
v.
FILED
JUL 18 2013 SUPERIO R COURT 1519 EDA 2013
. Criminal Appeals Unit MELVIN BLAMOFirst Judicial District of PA
.,...,
r.r~' o.:R.:r. ... J91lOO6 """"', ~ Ill""'" """"'"
OPINION
CHRIS R. WOGAN, •T. 1111111111111111111111111 7043081241
Procedural Posture
The Supennj' loun ser out the facts and proceduraJ his-tOry 0 1 this case as f'JlIo\\''!l In defendant's dlrecr appeal to that court:
In 2005. Charles Yancy ("Co-defendant") tOok fund, from tbe cheelung .ceouot of ,~ Ihaij Tholley. On June 22, 2006. Co-defendant, Appellant, and apprDXlmatdy tcn cohorts confronted f\lr. ThoUey at a local park.
The men approached Mr. ThoUey, surrounded him, and brandIShed firearms. Co-defendant warned ~1r Tholley not [Q appear ill court 10 t<sofi' agaInst Codefendant 1fl the theft case. Followmg tillS warnUlg, the meo beat Mr. ThoUey. Mr. TholJey's fnend, Amill:a Dukaray, unsuccessfully ane;:.mprcd to lflLelvene. 1\r [h;u pOInt, Mr. Tholle) and Mr. Dukaray Oed. During dlel1' llighl, one of the assailants drew his weapon, opened fire, and shot Mr Dukaray 10 the back. Mr. Dukaray required hospltalizaUOll for ius 1l1junes ~prdlant ano Co-defendant proceeded to a lOlot ttlal on Mq 20.
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2009. 1 PolloWlng jury seleco()n~ the (nnunonweallh lniormcd the court fhal it could not locate 1\1 .. 111011eYl and it dJd not expect Jum to appear af mal. CnnsequcnrJy, rhe Commonwc:1.lrh a"ked LO introduce lvh.
'Tholley's tesumony from Appellant's and Co-defendant's prclirrunary heMlngs . .A. fter rccclVlflg evtdence regardtng the Commonwealth '5 efforts tu locate ?vir. Tholley, rJle court pennmed the introductlon of L\fr.
Thollcy's prcwnin"T heanog resomony. Un M.IY 21, 2009.
Cnmmon\V~alth WItnesses read Mr. Tholley's prelmunary heanng [('st1mony Into rJ1C record. Mr. Tholley sw:pnscd everyone and actually appeared ar tr1al to testify in person on May 22, 2009. At the conclUSIOn of trial, the jU1T found Appellant guilty of aggravated assault, r""Moon a~~l1nSI ;1 WlTflCSS. 1n00000darion of a WltneS~, and con::;plIacy.
On June 30. 2009, the co urt sentenced Appellant ro an aggregate term of onc hundred rwonty-three (123.1 [Q three hundred SIXty (36m months of lInpnsonmem. Appell'lnt timely filed a monnn for reconSIderation of sent~nce on Julv -. 2009. Thereafter. J \ppeUant obulJleJ new counsel. On August 31,2009 1 new coun~eJ filed a supplemental post-sentence motion on\ppell.nt's behalf In the "upplern~ntaJ motlon, new counsel alleged tnal counsel was rneffecovc for f::ulmg to present character WHoesse5. '111C court subsequently determlllecl rhe meffectlveness challenge should be defcned to coU:llcral reVlew. By order entered December', 2009. Appellant'~ mOtion for rccon::;iderauon of sentenct: was derued by operauon of law.
Sec Commonwealth y, Melvin Blamo, No. 43 FDA 201 n. Supenor Court 0plOlOn rtJed>\pril 8, 201 O.
Defendant's sentence was affinned on direct ~ppeal . as cited above.
On May 7, 2012, PCR.>\. counsel \X ayne Sachs, EsqulI<. Filed.r "PenDon For .~nd Consobdated I\lemorandum Of Law In Support Of .Post-ConVlcDoo Rdief unJcr 42 PACS. SeeMn 9541, ft. H9." On September 28,2012, the Commonwealrh fiJeJ It!'. !-.100Ull to DtsrJUss, On MarcJl 5,2013, rJus CClurt sent defendant a J\ionce pursuant to Pa.RCrim.P, 907, rhat the issues raJsed in his reM Petioon were
Co-defendant absconded pnor to the starr of trtal, and [he court cried h.im in absenlia.
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WIthout ment. On Ap[l] 26, ~013, t1u, coun formally dJSllU>5cd defendsnr\ PClL\ Petition.
On May 23,2013, defendant filed Ius No~ce of Appeal, represented by \'eaync Sachs, EsqUire. On June 24, 2013, thiS court ord ered defendant to file a 1925(b.' Statement ofJ\latters Comp lamed of on'\.ppeal.
Discussion
Defenuan[ cialmed In hlS peRA Pefloon that mal counsel. Lawrence \'7e!!'h, EsquIre, falled to present tesumony of reacWy availahle character witnesses based on counsel's nusundcrstandtng or appltcable law. Oefelldant\ enure claim re:'its on Ius Inrerpreranon of [he law rhar the Commonwealth rna}' only Closs-exarrune a character \VltneS!:i. countering testunony of pt(1cefuJ non-vIolent behavior of dctcndam at (he orne of [he underlying cnme, Wlth a sepnrare cnml: comrrutred bv defendant before the underlYIng cIIme and for which he had already been CQI1VICred and sentenced before the undc:r.Iywg offen!'e was commmed. nus readmg amounts to a \lvlndfd.u for defenJant. b contrary to the truth~deremurung process at uiaJ, and IS not suppOtl hy the c",os ctcd by defendam.
As the Comrnonwcaltll correctly noted, Commonw,alt/] o. Rim, 856 A.2d 03 t.Pa.Suptr 200·n "was concerned Wlth whether (he Judgments u~ed to Impe.'\ch were final at the time o f trial. R56 A.2d 'U 97 .98 (holding u,c of one·day old com1coon, (0 lIDpeach character WItnesses was llTlpemusslble because: the COnVlcoons wele
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unsenrenced at tune 01 rnal; relYlOg on Commonwealtli 1'. z.:,pald, 314 A,2d 299 n'a 19-4), whIch held (f1al coun~e1 was Ulcf(ecov~ for fl::vl.!aLn~ Ius clien['~ two poor
convictions for volunt-ary manslaughter when the chent had ntH yer been ~en[enccd at toe Dmc of trml)." "[TJhe Commonwcltlth could have used defendant's mo~t seuuus pnor judgments to lffipeach tiny character resumony a" [(I hl<; non-YIOlenr and law- abiding character." As the Commonwealth set' our: "Defendant was scnrenced nn those ,udgmcnts---gUilty ple:ls TO charge~ of unauthorlzed u~t of d mOlO! vt:hicle. dtsordedy conduct and dnVlng Wlthout a ucense----on \1ay 30, 200""), about [wo J'~'U:s
before ills maim this case'" See Commonwealth ~ronun to Dlsmls~, p. 5. \nd, as the Commonwealth notes, "fmctic1IuJgmem::; abo mc.::ct the rt:qwrUTII,;Tlh of.. .Commoll,,',allh r'. N,lIo"" 565 A.2ed "70 Pa.Super I q~9 . . t<qUlr.ling) mat convictions Introduced to Impeach !l character Wltnes~ have been comrru[[t~d pnor to the offense for which rllC defendant IS curn:ntly on tIul Here [he prior Judgment:- 111 question stemmed frum a prosecution that conunenccd with an arre:'.t on Dcccmbet 22. ~005. ~cveral mon!h~ before the beaung <wd shooong {hat led tu defendant's Judgments U1 thts case" Nellom. at 774 (bold emph",,, ndded "'WItness should he subject to cro~s-examinacion only about conVICtiOnS that arose out of offenses nCCUffUlgpnor 10 the commissJOo of tht :lUegt.d offense ."~ Therefore, 1[ was
1 Under Rule 405. Methods of ProvlOg Charaerer'
la Reputation c",dencc. In all cases t wluch eVldencc of character or a rrrut of In
characler of a pe"on Is adrru.'"ble. proof rna)' be made Gy ,esumon)' as to reputauon
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reasonable fi)f defense ct"ll.lOf:el to (orew, prouuc.mg ch<traner resumony on bl.!hllif of defendant since 1115 prIor conVlcnons cOllld have heen lnuQduced to Impeach tht: WltnCSSCS . SIT CQmmooy,;talth v ludd, wr A.2d 1224. 1232-1233 P:..Super
200(,: 'Jlprellant':i "mote recent COllV1C[iOns for SJ11lpic : a~!'iaul[l r('ckJe~s endangerment.
and dnvmg under the Innuence" .1dmL~~lble. If appellant " presented chat!lcrer cv;dt.:nn.: to establish th;lt he was a non-vlOlenl pcr:son, the.' Commonwealth would be aUO\"ed to presenr evidence oflus more recuu pnor ro nvlCtlOl1s''''
Ncvenheles!), defendant was no[ cnutlcd [I) P( R,\ rtlief on thts lncffecuvenc!'s chum because he Clll1nOI prove he was prt'Judiced br the absence of character
tesnmony :1T trial. As the COmJllonweaJrh pOU1[cd our, "la)ILhoug- characrer
h
restimony I:'; rheoreacalJy .sufficient by lr~elt to cre:1te reas-onable doubt. tr 1:. rarely <:ufficicllt 111 pracoce. 5 U l.g.. CflIJJmOnW, ,";/.1h tl. Cull, 688 .A.2J 1 191, 119' (Pa.Super. 199- 'l'lppellam faileJ fO esrabhsh prellHlicc for nuT caUIng character ""tnesses where evidence estabhshed lu~ gLUh nf cnmes charged) ... " D(::f~ndant cannot demonstrate iH
the PCR.\ level that he was preludJceJ b) ,m)' lack of (har.crcr tesoman), where lbe
Commonwe-<llth presented te~omony ar tr.l .. u from on(' of the gunshot vicruns, Amara Dukar:\}' (who persnn}1Uy knuws defenJanl ), tha.t defcnJanr was Involved In the
aitercaoon learung ro d,c shooong, and defendant had a gun (I" T 5/ 2U / 09, p. 9+
On cross-exarrunaOOll of Lhc rcpuratJon w1tness, lOqWry 1~ allowable into specific instances of conduct probanve of the character mnr Ul quesoon, except that in crmunal case~ lflqUHy toW allegaoon:. or other cnrrunal nu~conduct of lhe accuseJ not resulting in conviction is oot permissible. See PR.R.E. 405 (hold emphasis added I.
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179 Police statements by hoth "Kurns that defendant conunittcd the c[lme~ uther documentary eVldcnce of rhe come, pouce tesumony, JnJ fon:nslC evidence was also rresclllcd ,Ir rnal :;'cc "Commonweal:1- v. Nmbalf. 724 ,\ 2d 326 (pa. 1999)(prejudice reC]UlreS a shoWlng dUl, but for counseJ':-; faulted aCDon or OrruSSlOl1, there eXists a [ea~onahle prt'lhabilit) thaI the outcome;: wouJd havt' been dlffcrt:.nt)fl", citmg Commonwealth':, 'M otlon to Dism.lss, p. 6. Dekndllilt did not demomuate chat there CXl~tS a n:asoJlahk pfobahililJ that the outcome would have been dlfferem If counsel had GlUed character WItnesses con'iidenng rhe eVIdence of guilt presented Jt
mal Jhtref0re, ru:; peR..:\ lI1effecovcnc~5 clam1 Joes not cnode hun to post- con\'1Coon reuef
Conclusion
Dt:fendant's reM lI1effecovt:ness claIm is merlciess. Defendant's sentences should remain.
CHRIS R. WOGAN,].
1 Summary rusnussal o[ PCR.\ Pennun approprtate 1f cl:ums are 'Wlthom mel1L ~ CornmonwenJth v. PaYDe, 794 .\,2<1 902, 90G l'a.Supcr. 2002).