Com. v. Pratt, E.

• Court: Superior Court of Pennsylvania
• Decided: September 17, 2020
• Docket: 1351 WDA 2019
• Status: Unpublished

Opinion

J-S26019-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : EUGENE M. PRATT : : Appellant : No. 1351 WDA 2019

Appeal from the PCRA Order Entered August 15, 2019 In the Court of Common Pleas of Fayette County Criminal Division at No(s): CP-26-CR-0001261-2014

BEFORE: MURRAY, J., McLAUGHLIN, J., and PELLEGRINI, J.*

MEMORANDUM BY McLAUGHLIN, J.: FILED SEPTEMBER 17, 2020

Eugene Pratt appeals from the order denying his petition filed under the

Post Conviction Relief Act (PCRA). See 42 Pa.C.S.A. §§ 9541-9546. Pratt

claims his trial counsel was ineffective due to her failure to call two witnesses.

We affirm.

Pratt was arrested on in July 2014 for charges relating to an incident

involving two victims, Ashley Weakland and Tyler Rockwell, at the home of

Pratt’s cousin, Deb Call. N.T., 3/9/16, at 15, 30. Pratt arrived looking for

Weakland, claiming that she had stolen his cell phone. Id. at 16, 32. Weakland

testified that Pratt cornered her in the bathroom and held a knife against her

neck while demanding the cell phone, which Weakland said did not belong to

Pratt, but rather to Weakland. Id. at 32-36. Weakland testified that as she

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* Retired Senior Judge assigned to the Superior Court. J-S26019-20

reached for the cell phone, Pratt cut her hand with the knife, causing her to

drop the cell phone. Id. at 36. Rockwell went into the bathroom to intervene,

and Pratt turned on Rockwell and held the knife to Rockwell’s throat and

threatened to cut him, stating, “[S]hut up boy I’ll slice you too.” Id. at 19.

Pratt then grabbed the cell phone, exited the house, and drove away in a

vehicle. Id. at 21, 38.

Pratt testified in his own defense and said that Weakland had taken

Pratt’s vehicle and rented it to another woman. Id. at 85, 88. Pratt said that

when he got the vehicle back, several of his belongings were missing,

including his cell phone. Id. at 88. Pratt also testified that there was no cutting

or threatening. Id. at 90-91. He claims he forced his way into the bathroom,

grabbed the cell phone, and left the home. Id. at 90.

Following trial, a jury convicted Pratt of Terroristic Threats and Simple

Assault, and the trial court, sitting without a jury, found him guilty of the

summary offense of Harassment.1 The court sentenced Pratt in March 2016 to

an aggregate term of 33 to 90 months’ imprisonment. This Court affirmed the

judgment of sentence in April 2018.

In December 2018, Pratt filed a pro se PCRA petition, claiming his trial

counsel was ineffective. After the court appointed counsel, Pratt filed an

amended petition claiming his counsel was ineffective for failing to call two

witnesses, Deb Call and Bernard Richardson.

1 See 18 Pa.C.S.A. §§ 2706, 2701, and 2709, respectively.

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The PCRA court held an evidentiary hearing, at which both Pratt and trial

counsel testified. According to Pratt, Deb Call would have testified that the

attack did not occur, and Richardson would have testified that he saw

Weakland with Pratt’s phone and truck. N.T., 6/7/19, 6-7. Pratt said that he

informed counsel of the witnesses and that he believed such testimony would

have proven his innocence. Id. at 7-8.

Counsel also testified. She said she met with Pratt repeatedly and knew

that Pratt wanted to subpoena Call to testify because she could potentially

provide exculpatory evidence. Id. at 18. Counsel said that she spoke with Call,

who reported that she did not witness the incident. Id. at 18-19. Counsel said

she consulted Pratt on this matter, and they reached a joint decision not to

have Call testify. Id. at 21. She further testified that Pratt never asked her to

contact Richardson and did not provide her with Richardson’s contact

information. Id. at 21-22. Counsel knew of Richardson but did not seek

testimony from him because even if he said he saw Weakland with Pratt’s

phone and truck, that would not have exculpated Pratt from the charges

relating to the attacks. Id. Neither Richardson nor Call testified at the hearing,

and Pratt did not provide a certification or affidavit from either of them setting

forth their testimony or stating that they were willing and available to testify

for Pratt.

The PCRA court found trial counsel’s testimony credible and denied

relief. Pratt filed this timely appeal. He raises one issue on appeal: “whether

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the PCRA [c]ourt did err in not finding ineffective assistance of trial counsel.”

Pratt’s Br. 5.

On appeal from the denial of PCRA relief, “we must determine whether

the ruling of the PCRA court is supported by the record and is free of legal

error.” Commonwealth v. Spotz, 18 A.3d 244, 259 (Pa. 2011). “The PCRA

court’s credibility determinations, when supported by the record, are binding

on this Court.” Id. “However, this Court applies a de novo standard of review

to the PCRA court’s legal conclusions.” Id.

“Counsel is presumed to have been effective.” Commonwealth v.

Andrews, 158 A.3d 1260, 1263 (Pa.Super. 2017). A petitioner claiming

otherwise “must show that: (1) his underlying claim is of arguable merit; (2)

counsel had no reasonable basis for his action or inaction; and (3) the

petitioner suffered actual prejudice as a result.” Spotz, 84 A.3d at 311. Failure

to satisfy any one prong of this test will result in denial of the claim. Id.

To establish counsel was ineffective for failing to call a witness, the

petitioner must prove:

(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. Johnson, 966 A.2d 523, 536 (Pa. 2009) (quoting

Commonwealth. v. Washington, 927 A.2d 586, 599 (Pa. 2007)).

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The PCRA court properly rejected Pratt’s ineffectiveness claim. Nothing

in the record suggests either witness was willing and able to testify for the

defense. Moreover, the PCRA court credited counsel’s testimony that Call did

not see the incident and counsel and Pratt jointly agreed not to present Call’s

testimony, and that Richardson’s proposed testimony would not have

exculpated Pratt. The PCRA court’s findings have ample support in the record

and it did not err in denying Pratt’s petition.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 9/17/2020

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