J-S51004-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : TALIQUE Q. MINCEY, : : Appellant : No. 564 EDA 2017
Appeal from the PCRA Order January 20, 2017 In the Court of Common Pleas of Philadelphia County Criminal Division at No.: CP-51-CR-0003938-2009
BEFORE: DUBOW, J., NICHOLS, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY DUBOW, J.: FILED FEBRUARY 22, 2019
Appellant, Talique Q. Mincey, appeals from the Order entered in the
Philadelphia County Court of Common Pleas dismissing the guilt-phase claims
in his first Petition filed under the Post Conviction Relief Act (“PCRA”), 42
Pa.C.S. §§ 9541-9546. Appellant challenges the effectiveness of counsel’s
assistance for failing to call character witnesses. After careful review, we
affirm.
This Court previously set forth the underlying facts, so we will not repeat
them here. See Commonwealth v. Mincey, No. 1871 EDA 2011,
unpublished memorandum at 1-6 (Pa. Super. filed July 18, 2012). Briefly, on
May 24, 2011, a jury convicted Appellant of First-Degree Murder, Carrying a
Firearm Without a License, and Possession of an Instrument of Crime1 in
____________________________________________
1 18 Pa.C.S. § 2502(a); 18 Pa.C.S. § 6106; and 18 Pa.C.S. § 907, respectively. J-S51004-18
connection with the October 22, 2008 shooting of Thomas Fredrick in
Philadelphia. On July 8, 2011, the trial court sentenced Appellant to the
mandatory term of life imprisonment without parole.
Appellant filed a timely direct appeal, and this Court affirmed Appellant’s
Judgment of Sentence. Id. On May 29, 2013, our Supreme Court denied
allowance of appeal. Commonwealth v. Mincey, 67 A.3d 795 (Pa. 2013).
On December 2, 2013, Appellant filed a pro se PCRA Petition, his first.
The PCRA court appointed counsel, who filed an Amended PCRA Petition on
July 9, 2016. Appellant claimed, inter alia, that: (1) his trial counsel was
ineffective for failing to call available character witnesses; and (2) his sentence
was illegal pursuant to Miller v. Alabama, 567 U.S. 460 (2012), and
Montgomery v. Louisiana, 136 S.Ct. 718 (2016).2 The Commonwealth filed
a Motion to Dismiss arguing that Appellant’s guilt-phase PCRA claims did not
merit relief, but conceding that Appellant is entitled to relief pursuant to Miller
and Montgomery.
On January 20, 2017, the PCRA court dismissed the instant PCRA
Petition without a hearing after providing notice pursuant to Pa.R.Crim.P. 907
2 Counsel annexed Appellant’s certified birth certificate showing his date of birth was January 24, 1991. Appellant was 17 years, 8 months’ old when he committed his crime. In Miller, the U.S. Supreme Court held that it is unconstitutional for state courts to impose an automatic life sentence without possibility of parole upon a homicide defendant for a murder committed while the defendant was under 18 years of age. The United States Supreme Court held in Montgomery that its decision in Miller applies retroactively.
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with respect to Appellant’s ineffective assistance of counsel claim. The PCRA
court granted but stayed Appellant’s sentencing issue under Miller and
Montgomery pending appeal. Order, 1/20/17, citing Commonwealth v.
Bryant, 780 A.2d 646, 648 (Pa. 2001) (directing that review of a PCRA court’s
decision denying guilt-phase relief should precede the imposition of a new
sentence by the trial court).
Appellant filed a timely Notice of Appeal. Both Appellant and the PCRA
court complied with Pa.R.A.P. 1925.
Appellant presents the following issue for our review:
Whether the PCRA court violated paragraph (1) of Rule 907 of Pa.R.Crim.P. by summarily dismissing [Appellant’s] PCRA petition without evidentiary hearing, where there was a genuine issue of material fact as to whether [Appellant] was denied the effective assistance of counsel as guaranteed under the United States and Pennsylvania Constitutions, when trial counsel failed to present character witnesses to testify as to [Appellant’s] reputation for peacefulness and non-violence.
Appellant’s Brief at 4.
We review the denial of a PCRA Petition to determine whether the record
supports the PCRA court’s findings and whether its order is otherwise free of
legal error. Commonwealth v. Fears, 86 A.3d 795, 803 (Pa. 2014). This
Court grants great deference to the findings of the PCRA court if they are
supported by the record. Commonwealth v. Boyd, 923 A.2d 513, 515 (Pa.
Super. 2007). We give no such deference, however, to the court’s legal
conclusions. Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa. Super.
2012).
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There is no right to a PCRA hearing; a hearing is unnecessary where the
PCRA court can determine from the record that there are no genuine issues of
material fact. Commonwealth v. Jones, 942 A.2d 903, 906 (Pa. Super.
2008). “With respect to the PCRA court’s decision to deny a request for an
evidentiary hearing, or to hold a limited evidentiary hearing, such a decision
is within the discretion of the PCRA court and will not be overturned absent
an abuse of discretion.” Commonwealth v. Mason, 130 A.3d 601, 617 (Pa.
2015).
The law presumes counsel has rendered effective assistance.
Commonwealth v. Rivera, 10 A.3d 1276, 1279 (Pa. Super. 2010). The
burden of demonstrating ineffectiveness rests on Appellant. Id. To satisfy
this burden, Appellant must plead and prove by a preponderance of the
evidence that: “(1) his underlying claim is of arguable merit; (2) the particular
course of conduct pursued by counsel did not have some reasonable basis
designed to effectuate his interests; and, (3) but for counsel’s ineffectiveness,
there is a reasonable probability that the outcome of the challenged
proceeding would have been different.” Commonwealth v. Fulton, 830 A.2d
567, 572 (Pa. 2003) (citations omitted). Failure to satisfy any prong of the
test will result in rejection of the appellant’s ineffective assistance of counsel
claim. Commonwealth v. Jones, 811 A.2d 994, 1002 (Pa. 2002).
-4- J-S51004-18
Appellant claims that counsel was ineffective for failing to call witnesses
to testify about his good character, i.e., that he was peaceful and law abiding.
Appellant’s Brief at 14-23.
To obtain relief on a claim that counsel was ineffective for failing to call
a potential witness, the PCRA petitioner must establish that: “(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.
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J-S51004-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : TALIQUE Q. MINCEY, : : Appellant : No. 564 EDA 2017
Appeal from the PCRA Order January 20, 2017 In the Court of Common Pleas of Philadelphia County Criminal Division at No.: CP-51-CR-0003938-2009
BEFORE: DUBOW, J., NICHOLS, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY DUBOW, J.: FILED FEBRUARY 22, 2019
Appellant, Talique Q. Mincey, appeals from the Order entered in the
Philadelphia County Court of Common Pleas dismissing the guilt-phase claims
in his first Petition filed under the Post Conviction Relief Act (“PCRA”), 42
Pa.C.S. §§ 9541-9546. Appellant challenges the effectiveness of counsel’s
assistance for failing to call character witnesses. After careful review, we
affirm.
This Court previously set forth the underlying facts, so we will not repeat
them here. See Commonwealth v. Mincey, No. 1871 EDA 2011,
unpublished memorandum at 1-6 (Pa. Super. filed July 18, 2012). Briefly, on
May 24, 2011, a jury convicted Appellant of First-Degree Murder, Carrying a
Firearm Without a License, and Possession of an Instrument of Crime1 in
____________________________________________
1 18 Pa.C.S. § 2502(a); 18 Pa.C.S. § 6106; and 18 Pa.C.S. § 907, respectively. J-S51004-18
connection with the October 22, 2008 shooting of Thomas Fredrick in
Philadelphia. On July 8, 2011, the trial court sentenced Appellant to the
mandatory term of life imprisonment without parole.
Appellant filed a timely direct appeal, and this Court affirmed Appellant’s
Judgment of Sentence. Id. On May 29, 2013, our Supreme Court denied
allowance of appeal. Commonwealth v. Mincey, 67 A.3d 795 (Pa. 2013).
On December 2, 2013, Appellant filed a pro se PCRA Petition, his first.
The PCRA court appointed counsel, who filed an Amended PCRA Petition on
July 9, 2016. Appellant claimed, inter alia, that: (1) his trial counsel was
ineffective for failing to call available character witnesses; and (2) his sentence
was illegal pursuant to Miller v. Alabama, 567 U.S. 460 (2012), and
Montgomery v. Louisiana, 136 S.Ct. 718 (2016).2 The Commonwealth filed
a Motion to Dismiss arguing that Appellant’s guilt-phase PCRA claims did not
merit relief, but conceding that Appellant is entitled to relief pursuant to Miller
and Montgomery.
On January 20, 2017, the PCRA court dismissed the instant PCRA
Petition without a hearing after providing notice pursuant to Pa.R.Crim.P. 907
2 Counsel annexed Appellant’s certified birth certificate showing his date of birth was January 24, 1991. Appellant was 17 years, 8 months’ old when he committed his crime. In Miller, the U.S. Supreme Court held that it is unconstitutional for state courts to impose an automatic life sentence without possibility of parole upon a homicide defendant for a murder committed while the defendant was under 18 years of age. The United States Supreme Court held in Montgomery that its decision in Miller applies retroactively.
-2- J-S51004-18
with respect to Appellant’s ineffective assistance of counsel claim. The PCRA
court granted but stayed Appellant’s sentencing issue under Miller and
Montgomery pending appeal. Order, 1/20/17, citing Commonwealth v.
Bryant, 780 A.2d 646, 648 (Pa. 2001) (directing that review of a PCRA court’s
decision denying guilt-phase relief should precede the imposition of a new
sentence by the trial court).
Appellant filed a timely Notice of Appeal. Both Appellant and the PCRA
court complied with Pa.R.A.P. 1925.
Appellant presents the following issue for our review:
Whether the PCRA court violated paragraph (1) of Rule 907 of Pa.R.Crim.P. by summarily dismissing [Appellant’s] PCRA petition without evidentiary hearing, where there was a genuine issue of material fact as to whether [Appellant] was denied the effective assistance of counsel as guaranteed under the United States and Pennsylvania Constitutions, when trial counsel failed to present character witnesses to testify as to [Appellant’s] reputation for peacefulness and non-violence.
Appellant’s Brief at 4.
We review the denial of a PCRA Petition to determine whether the record
supports the PCRA court’s findings and whether its order is otherwise free of
legal error. Commonwealth v. Fears, 86 A.3d 795, 803 (Pa. 2014). This
Court grants great deference to the findings of the PCRA court if they are
supported by the record. Commonwealth v. Boyd, 923 A.2d 513, 515 (Pa.
Super. 2007). We give no such deference, however, to the court’s legal
conclusions. Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa. Super.
2012).
-3- J-S51004-18
There is no right to a PCRA hearing; a hearing is unnecessary where the
PCRA court can determine from the record that there are no genuine issues of
material fact. Commonwealth v. Jones, 942 A.2d 903, 906 (Pa. Super.
2008). “With respect to the PCRA court’s decision to deny a request for an
evidentiary hearing, or to hold a limited evidentiary hearing, such a decision
is within the discretion of the PCRA court and will not be overturned absent
an abuse of discretion.” Commonwealth v. Mason, 130 A.3d 601, 617 (Pa.
2015).
The law presumes counsel has rendered effective assistance.
Commonwealth v. Rivera, 10 A.3d 1276, 1279 (Pa. Super. 2010). The
burden of demonstrating ineffectiveness rests on Appellant. Id. To satisfy
this burden, Appellant must plead and prove by a preponderance of the
evidence that: “(1) his underlying claim is of arguable merit; (2) the particular
course of conduct pursued by counsel did not have some reasonable basis
designed to effectuate his interests; and, (3) but for counsel’s ineffectiveness,
there is a reasonable probability that the outcome of the challenged
proceeding would have been different.” Commonwealth v. Fulton, 830 A.2d
567, 572 (Pa. 2003) (citations omitted). Failure to satisfy any prong of the
test will result in rejection of the appellant’s ineffective assistance of counsel
claim. Commonwealth v. Jones, 811 A.2d 994, 1002 (Pa. 2002).
-4- J-S51004-18
Appellant claims that counsel was ineffective for failing to call witnesses
to testify about his good character, i.e., that he was peaceful and law abiding.
Appellant’s Brief at 14-23.
To obtain relief on a claim that counsel was ineffective for failing to call
a potential witness, the PCRA petitioner must establish that: “(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. Washington, 927 A.2d 586, 599 (Pa. 2007).
As an initial matter, a petitioner must name and identify with specificity
the alleged witnesses. See Commonwealth v. Brown, 767 A.2d 576, 583-
84 (Pa. Super. 2001); Commonwealth v. Copenhefer, 719 A.2d 242, 254
(Pa. 1998) (holding petitioner not entitled to relief where he failed to “set forth
the name of a single person who was willing to testify on his behalf as a
character witness”). “The bare assertion that counsel failed to call unnamed
witnesses is an insufficient basis upon which to grant relief.” Commonwealth
v. Aycock, 470 A.2d 130, 134 (Pa. Super. 1983).
After carefully reviewing the certified record, including Appellant’s pro
se and Amended PCRA Petitions, we conclude that Appellant has failed to
identify by name any alleged witness supporting his allegations. Since
Appellant did not identify any character witnesses in any way, he could not
-5- J-S51004-18
prove that they in fact existed, that trial counsel was aware, or should have
been aware, of them, or that they were available for trial. As a result,
Appellant cannot prevail on his claim of ineffective assistance of trial counsel
for failing to locate or call these unidentified witnesses at trial. Thus, the PCRA
court did not abuse its discretion in denying Appellant’s guilt-phase PCRA
claims without an evidentiary hearing.
The record supports the PCRA court’s findings and its Order is otherwise
free of legal error. Accordingly, we affirm.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 2/22/19
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