J-S19007-19

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* Retired Senior Judge assigned to the Superior Court.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

DEVIN SMITH 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 2409 EDA 2018

Appeal from the PCRA Order Entered July 13, 2018

In the Court of Common Pleas of Philadelphia County Criminal Division at 

No(s): CP-51-CR-0010586-2013

BEFORE: LAZARUS, J., KUNSELMAN, J., and STRASSBURGER*, J.

MEMORANDUM BY LAZARUS, J.: FILED APRIL 18, 2019

Devin Smith appeals from the order, entered in the Court of Common 

Pleas of Philadelphia, dismissing his petition filed pursuant to the Post 

Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. Upon careful 

review, we affirm.

In February 2013, Smith killed Ramona Bell in a Philadelphia “crack 

house” by beating her about the head and body. A jury convicted Smith of 

third-degree murder on July 10, 2014 and, on November 14, 2014, the court 

sentenced him to 20 to 40 years’ incarceration. Smith appealed; this Court 

affirmed his judgment of sentence on March 9, 2016. See Commonwealth 

v. Smith, 144 A.3d 193 (Pa. Super. 2016) (Table). In doing so, this Court 

found Smith’s sole appellate issue—a challenge to the sufficiency of the 

evidence—waived for failure to specify any unproven element of third-degree 

murder. The Pennsylvania Supreme Court denied allowance of appeal on 
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August 25, 2016. See Commonwealth v. Smith, 145 A.3d 726 (Pa. 2016) 

(Table).

On January 26, 2017, Smith filed the instant pro se PCRA petition. 

Counsel was appointed and filed an amended petition, alleging appellate 

counsel’s ineffectiveness for filing an inadequate Pa.R.A.P. 1925(b) statement, 

resulting in the waiver of Smith’s appellate claim. Smith requested 

reinstatement of his appellate rights nunc pro tunc. The PCRA court dismissed 

Smith’s petition on July 18, 2018. This timely appeal follows, in which Smith 

raises the following claim for our review:

Did the PCRA [c]ourt err when it dismissed [Smith’s] [p]ro [s]e

[p]etition without a hearing and all where [Smith], on the papers, 

had pled and proved that he was entitled to relief?

Brief of Appellant, at 3.

We begin by noting:

This Court’s standard of review regarding an order dismissing a 

petition under the PCRA is whether the determination of the PCRA 

court is supported by evidence of record and is free of legal error. 

In evaluating a PCRA court’s decision, our scope of 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. Weatherill, 24 A.3d 435, 438 (Pa. Super. 2011).

Smith’s claim asserts the ineffectiveness of appellate counsel. “It is 

settled that the test for counsel ineffectiveness is the same under both the 

Pennsylvania and Federal Constitutions: it is the performance and prejudice 

test set forth in Strickland v. Washington, 466 U.S. 668 [] (1984).” 

Commonwealth v. Gribble, 863 A.2d 455, 460 (Pa. 2004). 
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[T]he constitutional ineffectiveness standard requires the 

defendant to rebut the presumption of professional competence 

by demonstrating 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 proceedings would 

have been different. A failure to satisfy any prong of the test for 

ineffectiveness will require rejection of the claim. 

Commonwealth v. Spotz, 870 A.2d 822, 829–30 (Pa. 2005) (internal 

citations omitted). 

In his brief, Smith recites the legal standards applicable to 

ineffectiveness claims and then presents the following argument, reproduced 

here in its entirety, asserting that, if Smith’s appellate rights were reinstated,

counsel would have to argue that [Smith] acted without malice. 

While that might be a difficult argument to make, it can be made 

in that, at least in general, [Smith] can be said, perhaps, not to 

have acted out of hardness of heart but out of an instantaneous 

rage and that he did not have the mental state for [m]urder in the 

[t]hird [d]egree, to wit, with malice.

Brief of Appellant, at 8. 

Smith’s argument is woefully insufficient. He completely fails to apply 

the facts of this case to any of the three prongs of the Strickland

ineffectiveness test or to provide any evidentiary support for his claims. In 

particular, with regard to the “reasonable basis” prong of the Strickland test, 

Smith fails to provide any evidence, such as an affidavit from his appellate

counsel, showing why counsel did not challenge the “malice” element of thirddegree murder on appeal. Where a claim is based solely on speculation and 

is unsupported by affidavits or other evidence of record, the claim must fail. 
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See Commonwealth v. Roney, 79 A.3d 595, 607 (Pa. 2013) (appellant not 

entitled to relief on ineffectiveness claim based solely on speculation). See 

also Commonwealth v. Marshall, 812 A.2d 539, 548 (Pa. 2002) (appellant 

failed to establish reasonable basis prong of ineffectiveness test because, inter 

alia, appellant did not proffer affidavits from trial counsel, and did not provide 

explanation as to why such affidavits could not be procured). In addition, 

Smith fails to plead or prove that the outcome of trial would have been 

different. Indeed, counsel concedes that a claim that Smith acted without 

malice “might be a difficult argument to make.” Brief of Appellant, at 8. 

In short, boilerplate allegations and bald assertions of no reasonable 

basis and/or ensuing prejudice cannot satisfy a petitioner’s burden to prove 

that counsel was ineffective. Commonwealth v. Paddy, 15 A.3d 431, 443 

(Pa. 2011). Accordingly, the PCRA court properly denied Smith relief without 

a hearing. 

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 4/18/19