J-A03042-24
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : RONALD HARVEY FOSTER : : Appellant : No. 368 WDA 2023
Appeal from the PCRA Order Entered December 16, 2021 In the Court of Common Pleas of Beaver County Criminal Division at No(s): CP-04-CR-0002368-2016
BEFORE: BOWES, J., KUNSELMAN, J., and MURRAY, J.
MEMORANDUM BY MURRAY, J.: FILED: March 19, 2024
Ronald Harvey Foster (Appellant) appeals nunc pro tunc from the order
dismissing his first petition under the Post Conviction Relief Act (PCRA).1 We
affirm.
This Court previously summarized the underlying facts:
This case arises from a drug deal gone bad. Many of the facts are undisputed. On several occasions, Appellant sought to purchase marijuana from Dane Mathesius, one of the two murder victims. When Mathesius appeared at an abandoned building to consummate the transaction, Appellant, Lawrence Reddick, Deontae Jones, and Rasheid Hicks were waiting. Present with Mathesius was sixteen-year-old William Booher and thirteen-year- old N.R.
Mathesius stopped his car, and Reddick climbed into the rear passenger seat. Reddick brandished a firearm and directed Mathesius to pull over. Reddick then robbed Mathesius, Booher,
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1 42 Pa.C.S.A. §§ 9541-9546. J-A03042-24
and N.R. At the conclusion of the robbery, Reddick fatally shot both Mathesius and Booher.
The primary issue at trial was Appellant’s awareness of Reddick’s intent to rob Mathesius. Appellant admitted he set up the drug deal. He also admitted he agreed to have Reddick accomplish the transaction, as Appellant feared that Booher intended to rob Appellant.
In contrast, the Commonwealth presented testimony that Appellant planned the robbery with Reddick. Hicks testified that he heard Appellant plan the robbery with Reddick the night before it occurred. Xavier Fisher also testified to Appellant’s involvement in planning the robbery the night before. Jones testified that Appellant had informed him of his intent to rob Mathesius a week prior to the robbery.
Commonwealth v. Foster, 221 A.3d 1239, 505 WDA 2018 (Pa. Super. 2019)
(unpublished memorandum at 1).
On November 14, 2016, the Commonwealth filed an information
charging Appellant with two counts of criminal homicide, three counts of
robbery, and one count each of conspiracy to commit robbery and criminal
use of a communication facility.2
Appellant was represented by Paul Gettleman, Esquire (trial counsel).
On January 13, 2017, Appellant, who was 17 years old at the time of the
alleged offenses, filed a petition to transfer his case to juvenile court
(decertification petition). The defense retained Dr. Nancy Kunsak, a licensed
psychologist, “to assess [Appellant’s] mental status at the time of the
shooting.” Supplement to PCRA Petition, 5/17/21, Exhibit A (Kunsak Report)
2 18 Pa.C.S.A. §§ 2501(a), 3701(a)(1)(i) and (ii), 903(a)(1), 7512(a).
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at 2. On March 16, 2017, Dr. Kunsak submitted a seven-page report in which
she diagnosed Appellant with “Attention Deficit Disorder with Hyperactivity,
Combined Type” (ADHD). Id. at 6. Dr. Kunsak concluded Appellant was
unable “to anticipate the outcome of a sequence of events or his own choices,”
and “was fully influenced by faulty reasoning and shortsightedness” when he
involved himself in the alleged offenses. Id. at 7. Dr. Kunsak stated Appellant
“expresses appropriate remorse and regret,” but opined it was “doubtful that
[Appellant] understands the role his involvement had in the deaths that
occurred.” Id.
On June 16, 2017, Appellant filed a motion to withdraw the
decertification petition. That same day, Appellant (who was 18 years old by
that time) underwent an extensive colloquy regarding his decision to withdraw
his decertification petition. See N.T., 6/16/17, at 3-19. The trial court
granted the motion to withdraw, finding Appellant’s decision was knowing,
intelligent, and voluntary. See PCRA Court Opinion, 12/16/21, at 22.
On September 5, 2017, a jury convicted Appellant of two counts of third-
degree murder,3 three counts of robbery, and one count each of conspiracy to
commit robbery and criminal use of a communication facility.
The trial court scheduled sentencing, ordered a presentence
investigation report, and directed that Appellant undergo a mental health
3 18 Pa.C.S.A. § 2502(b).
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evaluation and a drug and alcohol evaluation. Trial Court Order, 9/5/17. At
the October 17, 2017, sentencing hearing, trial counsel presented testimony
from six witnesses, including Appellant and his mother. See N.T., 10/17/17,
at 21-43. The trial court imposed an aggregate sentence of 34 to 70 years in
prison.
Represented by new, court-appointed counsel (appellate counsel),
Appellant filed a post-sentence motion. The trial court denied the motion, and
Appellant timely appealed. On September 9, 2019, this Court affirmed
Appellant’s judgment of sentence. See Foster, 221 A.3d 1239 (unpublished
memorandum at 13). On June 16, 2020, the Pennsylvania Supreme Court
denied allowance of appeal. See Commonwealth v. Foster, 236 A.3d 1038
(Pa. 2020).
On April 27, 2021, represented by new counsel (PCRA counsel),
Appellant filed the instant, timely PCRA petition. The petition alleged, inter
alia, trial counsel’s ineffectiveness for advising Appellant to withdraw the
decertification petition and for failing to present certain mitigating evidence at
sentencing. PCRA Petition, 4/27/21, at 5-6. The petition also alleged
appellate counsel’s ineffectiveness for failing to preserve these claims in a
post-sentence motion or on appeal. Id. at 6-7, 9-11.
On October 15, 2021, the PCRA court held an evidentiary hearing. Trial
counsel testified that he believed “the facts [relating to the petition] for
decertification were horrendous” and the chances of the trial court granting
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decertification were “remote.” N.T., 10/15/21, at 17. Trial counsel testified
that he discussed with Appellant and Appellant’s mother the prospects of going
forward with the decertification petition, “and ultimately we all decided that
we should just go to trial.” Id.
Dr. Kunsak testified that she discussed with trial counsel “how difficult
it would be to build a case for [Appellant] to be tried as [a juvenile] as opposed
to an adult.” Id. at 155. Dr. Kunsak testified that trial counsel indicated he
did not anticipate Dr. Kunsak having to testify at a decertification hearing, as
trial counsel believed that decertification “was going to be a fruitless pursuit.”
Id. at 155, 172. Dr. Kunsak also testified that trial counsel never contacted
her about testifying at Appellant’s sentencing hearing. Id. at 156.
On December 16, 2021, the PCRA court denied Appellant’s PCRA
petition. PCRA Court Order and Opinion, 12/16/21.
No timely appeal followed. The PCRA court appointed new counsel
(PCRA appellate counsel) and, on November 1, 2022, Appellant filed a petition
to reinstate his appeal rights, nunc pro tunc. On March 2, 2023, the PCRA
court granted the petition and reinstated Appellant’s PCRA appeal rights, nunc
pro tunc. On March 31, 2023, Appellant filed a notice of appeal. The PCRA
court did not direct Appellant to file a concise statement of matters complained
of on appeal, but filed an opinion pursuant to Pa.R.A.P. 1925(a).
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Appellant presents two issues for our review:4
1. [Did the PCRA court err] by finding that neither trial counsel nor appellate counsel was ineffective for failing to adequately advise [Appellant] concerning the withdrawal of the decertification petition … [and] for failing to raise this claim [on appeal?]
2. [Did the PCRA court err] by finding that neither trial counsel nor appellate counsel was ineffective for failing to present mitigation evidence at the time of sentencing … [and] for failing to raise this claim [on appeal?]
Appellant’s Brief at 9.
“We review the denial of PCRA relief by examining whether the PCRA
court’s conclusions are supported by the record and free from legal error.”
Commonwealth v. Johnson, 289 A.3d 959, 979 (Pa. 2023) (citing
Commonwealth v. Housman, 226 A.3d 1249, 1260 (Pa. 2020)). The scope
of our review is “limited to the findings of the PCRA court and the evidence of
record, viewed in the light most favorable to the prevailing party at the trial
level.” Commonwealth v. Hanible, 30 A.3d 426, 438 (Pa. 2011) (citation
omitted).
Appellant claims ineffective assistance of counsel. “[W]e begin, as we
must, with the presumption that counsel acted effectively.”
Johnson, 289 A.3d at 979 (citing Commonwealth v. Robinson, 82 A.3d
998, 1005 (Pa. 2013)); see also Commonwealth v. Lesko, 15 A.3d 345,
380 (Pa. 2011) (“When evaluating ineffectiveness claims, judicial scrutiny of
4 Appellant’s brief identifies a third issue, but his counsel withdrew the claim,
stating it lacks merit. See Appellant’s Brief at 9, 13, 31-33.
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counsel’s performance must be highly deferential.” (citation and quotation
marks omitted)).
A PCRA petitioner will be granted relief only when he proves, by a preponderance of the evidence, that his conviction or sentence resulted from the “[i]neffective assistance of counsel which, in the circumstances of the particular case, so undermined the truth- determining process that no reliable adjudication of guilt or innocence could have taken place.”
Commonwealth v. Spotz, 84 A.3d 294, 311 (Pa. 2014) (quoting 42
Pa.C.S.A. § 9543(a)(2)(ii)).
To establish a claim of ineffectiveness, a PCRA petitioner must plead and
prove:
(1) the underlying claim has arguable merit; (2) no reasonable basis existed for counsel’s action or failure to act; and (3) he suffered prejudice as a result of counsel’s error, with prejudice measured by whether there is a reasonable probability the result of the proceeding would have been different. Commonwealth v. Chmiel, 30 A.3d 1111, 1127 (Pa. 2011) (employing the ineffective assistance of counsel test from Commonwealth v. Pierce, 527 A.2d 973, 975-76 (Pa. 1987)). … Additionally, counsel cannot be deemed ineffective for failing to raise a meritless claim. Finally, because a PCRA petitioner must establish all the Pierce prongs to be entitled to relief, we are not required to analyze the elements of an ineffectiveness claim in any specific order; thus, if a claim fails under any required element, we may dismiss the claim on that basis.
Commonwealth v. Treiber, 121 A.3d 435, 445 (Pa. 2015) (citations
modified).
In his first issue, Appellant asserts trial counsel was ineffective for failing
to advise Appellant not to withdraw the decertification petition, and appellate
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counsel was ineffective for failing to raise this claim on appeal. See
Appellant’s Brief at 14-20.
We begin by considering whether the decertification petition has
arguable merit. We have explained that
a claim has arguable merit where the factual averments, if accurate, could establish cause for relief. See Commonwealth v. Jones, 876 A.2d 380, 385 (Pa. 2005) (“if a petitioner raises allegations, which, even if accepted as true, do not establish the underlying claim ..., he or she will have failed to establish the arguable merit prong related to the claim”). Whether the facts rise to the level of arguable merit is a legal determination.
Commonwealth v. Sandusky, 203 A.3d 1033, 1043 (Pa. Super. 2019)
(citation modified; brackets omitted).
The Juvenile Act provides that, except in the case of the most serious
crimes,
if it appears to the court in a criminal proceeding that the defendant is a child … the court shall forthwith halt further criminal proceedings, and, where appropriate, transfer the case to the division or a judge of the court assigned to conduct juvenile hearings.
42 Pa.C.S.A. § 6322(a). However, “[i]n determining whether to transfer a
case charging murder or any of the offenses excluded from the definition of
‘delinquent act’ in [42 Pa.C.S.A. §] 6302, the child shall be required to
establish by a preponderance of the evidence that the transfer will serve the
public interest.” Id.; see also K.B. v. Tinsley, 208 A.3d 123, 128 (Pa. Super.
2019) (“A preponderance of the evidence standard is defined as the greater
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weight of the evidence, i.e., to tip a scale slightly is the criteria or requirement
for preponderance of the evidence.” (citation omitted)).
Because Appellant was charged with murder, he was not entitled to a
transfer to juvenile court as a matter of right. Id. To prevail on his
decertification petition, Appellant had the burden of establishing that the
transfer would serve the public interest. Id.
“The decision whether to grant an application for transfer to the Juvenile
Court of a minor charged with murder is within the sound discretion of the
hearing judge.” Commonwealth v. Austin, 664 A.2d 597, 598 (Pa. Super.
1995) (citation omitted). “An abuse of discretion which will warrant reversal
of the trial court’s decision to retain a murder case in the Criminal Division
may not merely be an error of judgment, but must be a misapplication of the
law or an exercise of manifestly unreasonable judgment based upon partiality,
prejudice or ill will.” Id. at 599 (citation omitted).
“In determining whether the child has so established that the transfer
will serve the public interest, the court shall consider the factors contained in
[42 Pa.C.S.A. §] 6355(a)(4)(iii)….” 42 Pa.C.S.A. § 6322(a); accord
Commonwealth v. Green, 291 A.3d 317, 318 n.1 (Pa. 2022). Section
6355(a)(4)(iii) provides that transfer is warranted only if the trial court finds
that there are reasonable grounds to believe that the public interest is served by the transfer of the case…. In determining whether the public interest can be served, the court shall consider the following factors:
(A) the impact of the offense on the victim or victims;
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(B) the impact of the offense on the community;
(C) the threat to the safety of the public or any individual posed by the child;
(D) the nature and circumstances of the offense allegedly committed by the child;
(E) the degree of the child’s culpability;
(F) the adequacy and duration of dispositional alternatives available under this chapter and in the adult criminal justice system; and
(G) whether the child is amenable to treatment, supervision or rehabilitation as a juvenile by considering the following factors:
(I) age;
(II) mental capacity;
(III) maturity;
(IV) the degree of criminal sophistication exhibited by the child;
(V) previous records, if any;
(VI) the nature and extent of any prior delinquent history, including the success or failure of any previous attempts by the juvenile court to rehabilitate the child;
(VII) whether the child can be rehabilitated prior to the expiration of the juvenile court jurisdiction;[5]
(VIII) probation or institutional reports, if any;
(IX) any other relevant factors….
42 Pa.C.S.A. § 6355(a)(4)(iii) (footnote added).
5 Juvenile court jurisdiction expires when a delinquent child “attains 21 years
of age.” 42 Pa.C.S.A. § 6352(a)(5).
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“[F]or purposes of analyzing the factors in [Section] 6355(a)(4)(iii), a
trial court may (but need not) assume that the juvenile is guilty and
committed the alleged acts constituting the offense.” Commonwealth
v. Brown, 26 A.3d 485, 508 (Pa. Super. 2011) (emphasis added).
Appellant asserts trial counsel never properly assessed whether the
Section 6355(a)(4)(iii) factors could have been established in Appellant’s
favor. Appellant’s Brief at 16. However, Appellant fails to demonstrate that
the factors could have been established even if trial counsel had acted
differently.
Appellant’s PCRA petition alleged trial counsel should have pursued the
decertification petition because he “possessed a promising expert report” from
Dr. Kunsak. PCRA Petition, 4/27/21, at 23-24, 27. On appeal, however,
Appellant concedes that, at the PCRA evidentiary hearing, “Dr. Kunsak
testified that she never assessed [Appellant] concerning the 42 Pa.C.S.A. §
6355(a)(4)(iii) factors.” Appellant’s Brief at 17; see N.T., 10/15/21, at 195
(Dr. Kunsak admitting she is “not aware of what the factors are.”). The PCRA
court determined Dr. Kunsak’s report did not support decertification, in part
because it relied on Appellant’s self-serving denial of culpability for the
underlying offenses. See PCRA Court Opinion, 12/16/21, at 26-28; see also
id. at 26 (quoting the holding of Brown, supra, that a trial court considering
decertification may assume the juvenile is guilty).
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Appellant now argues that because Dr. Kunsak’s report did not support
decertification, trial counsel was ineffective for not obtaining some other
report. See Appellant’s Brief at 17-18. However, whether a more favorable
report could have been obtained remains mere conjecture. Appellant had the
opportunity to substantiate his claim at the PCRA evidentiary hearing, where
he was required to prove facts establishing the merit of his underlying
decertification petition. See Commonwealth v. Fisher, 813 A.2d 761, 771
(Pa. 2002) (ineffectiveness claim rejected where petitioner “did not present
anything at the PCRA evidentiary hearing which would have produced a
different result [on the underlying issue]…. Counsel cannot be faulted for
failing to discover or present evidence if [petitioner] fails to meet the burden
of establishing that the evidence exists.”).
The PCRA court analyzed the Section 6355(a)(4)(iii) factors and
concluded Appellant’s decertification petition lacked merit:
The crimes [charged against Appellant], robbery and criminal homicide, had the most serious impact imaginable on the victims. The impact on their families and the communities cannot be overestimated. [Appellant’s] threat to the public safety, as the person who planned the robbery, is great. The nature of the circumstances, ambush and armed robbery of three unsuspecting juveniles, including a thirteen year old boy, at a drug deal set up by [Appellant], is of the most serious character. Although [Appellant] was not the actual shooter, the testimony demonstrated his planning role in the scheme, and his efforts to conceal evidence after the fact, and therefore his high level of culpability. The alternatives available in the juvenile system would clearly have been inadequate to address [Appellant’s] needs….
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The [PCRA c]ourt does not believe that [Appellant] would have been amenable to treatment, supervision, or rehabilitation as a juvenile. He was nearly eighteen years old at the time of the offense. Although he was diagnosed with “Attention- Deficit/Hyperactivity Disorder, combined presentation[,]” and had abused marijuana, he was of average intelligence, able to manage his school work, and performed well in football. His criminal sophistication was demonstrably high, although his prior record was not substantial. The [PCRA c]ourt does not believe [Appellant] could have been rehabilitated for such serious crimes in the short time that would have been available before the juvenile court’s jurisdiction expired.
The [PCRA c]ourt finds that [Appellant] has failed to present evidence that would prove that [Appellant’s] decertification would have served the public interest. Rather, the [PCRA c]ourt finds that [Appellant’s] decertification would have demeaned the seriousness of his crimes. [Appellant] therefore fails to prove … arguable merit…. Because his claim has no arguable merit[,] … [Appellant’s] counsel was not ineffective.
PCRA Court Opinion, 12/16/21, at 26, 28-29.
The record supports the PCRA court’s analysis. We agree that
Appellant’s underlying claim lacks arguable merit and, therefore, his first
ineffectiveness claim against trial counsel fails.
Regarding the alleged ineffective assistance of appellate counsel, we
observe the following. “Where a petitioner alleges multiple layers of
ineffectiveness, he is required to plead and prove, by a preponderance of the
evidence, each of the three prongs of ineffectiveness relevant to each layer of
representation.” Commonwealth v. Parrish, 273 A.3d 989, 1003 n.11 (Pa.
2022). “In determining a layered claim of ineffectiveness, the critical inquiry
is whether the first attorney that the defendant asserts was ineffective did, in
fact, render ineffective assistance of counsel. If that attorney was effective,
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then subsequent counsel cannot be deemed ineffective for failing to raise the
underlying issue.” Commonwealth v. Burkett, 5 A.3d 1260, 1270 (Pa.
Super. 2010). Here, we concluded trial counsel was not ineffective.
Accordingly, Appellant’s claim of ineffective assistance of appellate counsel,
premised on trial counsel’s ineffectiveness, fails. See id.
In his second issue, Appellant asserts trial counsel was ineffective for
failing to present certain mitigating evidence at sentencing, and appellate
counsel was ineffective for failing to raise this claim on appeal. See
Appellant’s Brief at 21-30. Appellant notes trial counsel presented testimony
from six character witnesses during the sentencing hearing, but asserts “there
was no mention of [Appellant’s] mental health diagnosis and how it affected
him.” Id. at 24. Rather, Appellant argues, trial counsel only presented
witnesses who testified Appellant “was a good kid” and asked for leniency.
Id. Appellant maintains trial counsel should have called Dr. Kunsak and Dr.
Daniel Graff to testify at the sentencing hearing. Id. at 27-28. Their
testimony, Appellant asserts, would have explained his medical diagnosis, his
“lack of decision-making capabilities,” and his potential for rehabilitation. Id.
at 24-27. Appellant further argues trial counsel should have asked Appellant’s
mother, who did testify at sentencing, to testify regarding Appellant’s medical
history and diagnosis. Id. at 24-26. We will separately address Appellant’s
claim as to each proposed witness.
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To prove trial counsel was ineffective for failing to call a witness, a PCRA
petitioner must demonstrate:
(1) the witness existed; (2) the witness was available to testify for the defense; (3) counsel knew of, or should have known of, the existence of the witness; (4) the witness was willing to testify for the defense; and (5) the absence of the testimony of the witness was so prejudicial as to have denied the defendant a fair trial.
Commonwealth v. Brown, 196 A.3d 130, 167 (Pa. 2018) (citation omitted).
At the PCRA evidentiary hearing, Dr. Kunsak testified that she was
available and willing to testify at Appellant’s sentencing hearing. N.T.,
10/15/21, at 156. Trial counsel acknowledged he knew of Dr. Kunsak’s
existence. Id. at 25-26. We may therefore consider whether the absence of
her testimony prejudiced Appellant.
The PCRA court reviewed Dr. Kunsak’s report and specifically found that
it did not have “high mitigating value[.]” PCRA Court Opinion, 12/16/21, at
8. The PCRA court stated:
At best, [the report] is largely conclusory, providing few examples to support the statements it makes. At worst, it is contradicted by the voluminous evidence that was received at trial, and even makes statements that could well be construed as aggravating. For example, it states that [Appellant] has “not learn[ed] from past disciplinary measures to modify his behavior” despite the fact that “[h]e often was punished for the outcome of his behavioral choices….” Thus, the report indicates that [Appellant] has a history of refusing to behave in an acceptable way despite repeated attempts at correction. Further, the report states, “[Appellant] often does not see how he is responsible for bad choices when they are a product, in part, of someone else’s influences.” It would appear the report may be suggesting that [Appellant], rather than displaying genuine remorse, instead shifts the blame for [his] actions to others. Next, the report states
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that “many individuals like [Appellant] have problems with authority because those in charge—parents, teachers, employers, coaches—can see what he cannot see.” Thus, the report further reinforces the view that [Appellant] has refused to conform his conduct to the reasonable expectations of everyday authorities because he sees things differently. Nevertheless, the report agrees that [Appellant] is of average intelligence, that he has the ability to complete his class work, and that he benefited emotionally and behaviorally from … play[ing] on the Aliquippa football team.
Id. at 8-9.
Moreover, the PCRA court made clear that it was aware of Appellant’s
ADHD diagnosis at the sentencing hearing:6
It appears to the [PCRA c]ourt that the serious mental health condition that [Appellant] claims he had that the [PCRA c]ourt failed to consider was … ADHD[]. The transcript of the sentencing hearing plainly shows that the [PCRA c]ourt reviewed with counsel the reports and evaluations that had been prepared prior to sentencing, including the pre-sentence report, a mental health evaluation, a drug and alcohol evaluation, and the sentencing guidelines. N.T., 10/17/17, at 4-7. The pre-sentence report stated that [Appellant] had been diagnosed with ADHD. Thus, the [PCRA c]ourt was already aware of the diagnosis.
PCRA Court Opinion, 12/16/21, at 8.7
The PCRA court concluded,
to the extent there is any mitigating value to [Dr. Kunsak’s] letter, report, and testimony, the [PCRA c]ourt cannot say that they provide any substantive information that was not already captured ____________________________________________
6 The same judge presided over Appellant’s trial, sentencing, and PCRA petition.
7 Where the trial court has the benefit of a presentence investigation report,
“we can assume [it] was aware of relevant information regarding the defendant’s character and weighed those considerations along with mitigating statutory factors.” Commonwealth v. Moury, 992 A.2d 162, 171 (Pa. Super. 2010).
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by the pre-sentence report, mental health evaluation, and drug and alcohol evaluation, or the evidence presented at trial…. The [PCRA c]ourt therefore finds that [Appellant] failed to prove that he was prejudiced by trial counsel’s failure to present this evidence at sentencing.
Id. at 10.
The record supports the PCRA court’s analysis. We agree that Appellant
failed to demonstrate he was prejudiced by the absence of Dr. Kunsak’s
testimony.
Appellant next argues trial counsel was ineffective for failing to call Dr.
Daniel Graff to testify at sentencing. Appellant’s Brief at 27-28. Appellant
claims Dr. Graff was Appellant’s pediatrician and “would have appeared for
testimony concerning [Appellant’s] medical records.” Id. at 28. Though
Appellant’s brief asserts Dr. Graff “is still an active pediatrician in Beaver
County,” Appellant cites to nothing in the record establishing Dr. Graff’s
availability and willingness to testify on Appellant’s behalf. Id. at 27. Our
review discloses Dr. Graff did not testify at the PCRA evidentiary hearing and
Appellant’s brief fails to specify the expected substance of his testimony. See
Commonwealth v. Selenski, 228 A.3d 8, 17 (Pa. Super. 2020) (rejecting
an ineffectiveness claim for failure to call a witness where the proposed
witness did not testify at PCRA evidentiary hearing and petitioner did not
demonstrate how the witness’s testimony would have been helpful).
Accordingly, Appellant’s claim regarding Dr. Graff fails.
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Finally, Appellant asserts trial counsel rendered ineffective assistance by
not eliciting testimony from Appellant’s mother regarding Appellant’s medical
history. Appellant’s Brief at 26. Appellant argues his mother “would have
testified regarding the day-to-day impact of [Appellant’s] mental health
diagnosis….” Id. However, Appellant’s brief fails to specify the expected
substance of this testimony, and Appellant’s mother did not testify at the PCRA
evidentiary hearing. See Selenski, 228 A.3d at 17. As such, Appellant failed
to establish prejudice resulting from the absence of this testimony.
Because Appellant failed to plead and prove trial counsel’s
ineffectiveness for failing to present mitigating evidence at sentencing, his
claim of appellate counsel’s ineffectiveness for failing to raise this issue lacks
merit. Burkett, 5 A.3d at 1270.
For the above reasons, neither of Appellant’s issues merit relief.
Order affirmed.
Judge Bowes joins the memorandum.
Judge Kunselman did not participate in the consideration or decision of
this case.
DATE: 03/19/2024
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