Com. v. Blamo, M.

Superior Court of Pennsylvania

Com. v. Blamo, M.

DecidedAugust 27, 2014

Docket1519 EDA 2013

StatusUnpublished

This text of Com. v. Blamo, M. (Com. v. Blamo, M.) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Com. v. Blamo, M., (Pa. Ct. App. 2014).

Pincite

Opinion

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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

- 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

- 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

-2- J-S26019-14

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.

-3- 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

-4- 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

-5- J-S26019-14

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).

Free access — add to your briefcase to read the full text and ask questions with AI