Com. v. Holmes, T.

• Court: Superior Court of Pennsylvania
• Decided: July 31, 2017
• Docket: Com. v. Holmes, T. No. 3819 EDA 2016
• Status: Unpublished

Opinion

J-S44043-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA v. : : TERRY LOUISE HOLMES, : : Appellant : No. 3819 EDA 2016

Appeal from the Order entered November 8, 2016 in the Court of Common Pleas of Montgomery County, Criminal Division, No(s): CP-46-CR-0005569-2012

BEFORE: BENDER, P.J.E., SHOGAN and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.: FILED JULY 31, 2017

Terry Louise Holmes (“Holmes”) appeals from the Order denying her

first Petition for relief filed pursuant to the Post Conviction Relief Act

(“PCRA”).1 We affirm.

In its Opinion, the PCRA court set forth the facts underlying the instant

appeal, which we adopt for the purpose of this appeal. See PCRA Court

Opinion, 1/26/17, at 1-5.

Briefly, the charges against Holmes arose from a claim of tenant fraud

relevant to Holmes’s residence in public housing administered by the

Montgomery County Housing Authority (“MCHA”), and funded by the United

States Department of Housing and Urban Development (“HUD”). It was

alleged that Holmes improperly permitted Craig Holmes, Sr., and Craig

Holmes, Jr., to reside with her and her daughters in public housing, and

1 42 Pa.C.S.A. §§ 9541-9546. J-S44043-17

misrepresented that fact to MCHA. Following a bench trial, Holmes was

convicted of theft by unlawful taking, theft by deception, receiving stolen

property, unsworn falsification to authorities and securing execution of

documents by deception.2 Prior to sentencing, Holmes retained new

counsel. The trial court subsequently sentenced Holmes to three to twenty-

three months of incarceration, followed by five years of probation. This

Court affirmed Holmes’s judgment of sentence. Commonwealth v.

Holmes, 116 A.3d 675 (Pa. Super. 2014) (unpublished memorandum).

Holmes did not petition for allowance of appeal to the Pennsylvania Supreme

Court.

Holmes, through counsel, subsequently filed the instant timely PCRA

Petition, her first. The PCRA court conducted a hearing on Holmes’s Petition.

On July 26, 2016, the PCRA court entered an Order denying the Petition.

However, the following day, upon the agreement of the parties, the PCRA

court vacated its July 26, 2016 Order and reopened the record, “pending

further advice of counsel.” PCRA Court Opinion, 1/26/17, at 6. Holmes,

through counsel, submitted a letter to the Office of the District Attorney and

the trial court, stating that her husband worked for the United States Postal

Service from 2:00 a.m. to 10:30 a.m., with Sundays and Thursdays off. The

PCRA court closed the record.

2 See 18 Pa.C.S.A. §§ 3921(a), 3922(a), 3925(a), 4904(a), 4114(a).

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On November 8, 2016, the PCRA court denied Holmes’s Petition.

Holmes filed a pro se Notice of Appeal, and a pro se entry of appearance

that included the withdrawal of appearance of Holmes’s PCRA counsel. The

PCRA court subsequently appointed counsel to represent Holmes.3

Holmes now presents the following claim for our review:

WHETHER THE PCRA COURT ERRED IN CONCLUDING THAT [HOLMES] FAILED TO DEMONSTRATE TRIAL COUNSEL’S INEFFECTIVENESS IN FAILING TO OBTAIN AND PRESENT EVIDENCE AT TRIAL, WHICH WOULD HAVE CONTRADICTED THE TESTIMONY OF A KEY COMMONWEALTH WITNESS[,] WHEN [HOLMES] INFORMED TRIAL COUNSEL OF THE EXISTENCE OF THE EVIDENCE, AND REQUESTED THAT [COUNSEL] OBTAIN THE SAME?

Brief for Appellant at 4.

Holmes asserts that the PCRA court improperly denied her relief, based

upon the fact that she did not present the testimony of her trial counsel,

whom she alleged rendered ineffective assistance. Id. at 13. Holmes

contends that the PCRA court disregarded her own testimony at the hearing.

Id. Holmes asserts that at the hearing, she testified that her trial counsel

repeatedly assured her that counsel would obtain the requested information.

Id. When Holmes asked her counsel why he had not obtained the

information, counsel provided no reason. Id. Holmes further asserts that

counsel could have no reasonable basis for failing to present evidence that

3 The PCRA court did not order Holmes to file a Pa.R.A.P. 1925(b) concise statement of matters complained of on appeal.

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would have contradicted the Commonwealth’s evidence that Craig Holmes,

Sr., was witnessed leaving her apartment. Id.

“In reviewing the denial of PCRA relief, we examine whether the PCRA

court’s determination is supported by the record and free of legal error.”

Commonwealth v. Montalvo, 114 A.3d 401, 409 (Pa. 2015) (citation and

internal quotation marks omitted). The PCRA court’s findings will not be

disturbed unless there is no support for the findings in the certified record.

Commonwealth v. Treadwell, 911 A.2d 987, 989 (Pa. Super. 2006).

In its Opinion, the PCRA court set forth the relevant law, addressed

Holmes’s claim, and concluded that it lacks merit. See PCRA Court Opinion,

1/26/17, at 6-7. We agree with the sound reasoning of the PCRA court, as

set forth in its Opinion, and affirm on this basis with regard to Holmes’s

claim. See id.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 7/31/2017

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