J-A22011-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

CALVIN BARTHOLOMUE LYNCH

Appellant No. 98 MDA 2016

Appeal from the PCRA Order January 6, 2016

in the Court of Common Pleas of Lancaster County

Criminal Division at No(s): CP-36-CR-0003224-2010

 CP-36-CR-0005345-2009

 CP-36-CR-0005350-2009

BEFORE: GANTMAN, P.J., PANELLA, J., and JENKINS, J. 

MEMORANDUM BY JENKINS, J.: FILED AUGUST 22, 2016

Calvin Bartholomue Lynch (“Appellant”) appeals from the dismissal of 

his petition filed pursuant to the Post Conviction Relief Act (“PCRA”), 42 

Pa.C.S. § 9541 et seq. After careful review, we affirm.

The PCRA court explained the procedural posture of this matter as 

follows:

The procedural posture of this matter is nuanced. On 

Docket [CP-36-CR-000]3224-2010, [Appellant] was charged with 

Robbery,[1] Burglary,[2]and related offenses. These charges 

arose from a residential robbery. Another incident was then 

added to the same docket regarding the robbery of a Turkey Hill 

convenience store. A pretrial suppression hearing was held on 

____________________________________________

1 18 Pa.C.S. § 3701.

2 18 Pa.C.S. § 3502.
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January 4, 2011. Trial [c]ounsel obtained a severance of the 

convenience store robbery charges at that hearing. Eventually, 

[t]rial [c]ounsel was able to obtain a dismissal of the 

convenience store charges. After the suppression hearing, 

[Appellant] chose to represent himself at trial for the remaining 

charges. On January 7, 2011, a jury of his peers found 

[Appellant] guilty of Burglary, Robbery, and Theft.[3] During the 

trial, [t]rial [c]ounsel acted as standby counsel.

On Docket [CP-36-CR-000]5350-2009, [Appellant] was charged 

with Aggravated Assault[4]and related offenses for striking his 

girlfriend with a baseball bat. On Docket [CP-36-CR-000]5345-

2009, [Appellant] was charged with intimidation of a witness.[5] 

These cases were tried together as the victim (his girlfriend) was 

the same in both instances. Trial [c]ounsel also represented 

[Appellant] on these Dockets. [Appellant] proceeded to a bench 

trial on both Dockets and was found guilty on January 31, 2011.

[Appellant] was sentenced on March 24, 2011. On dockets 

5350-2009 and 5345-2009, [Appellant] was sentenced, in 

totality, to a sentence of thirteen and one-half (131⁄2) to twentyseven (27) years. On Docket 3224-2010, [Appellant] was 

sentenced to eight (8) to twenty (20) years. The sentences 

were ordered to be served consecutively. In the aggregate, 

[Appellant] was sentenced to twenty-one and a half (211⁄2) to 

forty-seven (47) years of incarceration. [Appellant] then filed 

post-sentence motions and appealed to the Superior Court. The 

Superior Court affirmed all of the convictions.2 The Supreme 

Court then denied [Appellant’s] petition for allocatur.[6]

____________________________________________

3 18 Pa.C.S. § 3921.

4 18 Pa.C.S. § 2702.

5 18 Pa.C.S. § 4952.

6 The Supreme Court of Pennsylvania denied allocatur on the appeal from 

Docket No. 3224-2010 on November 28, 2012. The Supreme Court denied 

allocatur on the appeal from Docket Nos. 5345-2009 and 5350-2009 on 

February 25, 2014. 
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2 – The Superior Court affirmed Docket 3224-2010 on 

March 1, 2012 and affirmed Dockets 5450-2009 and 5345-

2009 on July 29, 2014.

PCRA Court’s Memorandum of Opinion, filed December 28, 2015 (“PCRA 

Opinion”), pp. 1-2.

Appellant filed timely pro se PCRA petitions on Docket No. 3224-2010 

and Docket Nos. 5345-2009 and 5350-2009 on October 17, 2013 and 

January 15, 2015, respectively.7 The PCRA court held a consolidated 

hearing for all dockets on July 7, 2015. On December 28, 2015, the PCRA 

court denied Appellant’s PCRA petitions.8 Appellant filed a timely notice of 

appeal on January 14, 2016.9

Appellant raises the following issues for review:

A. Whether the [PCRA] court erred in denying [Appellant’s] 

amended PCRA [petition] when trial counsel was ineffective by 

failing to properly litigate that [Appellant] was not arraigned and 

that the charges docketed at No. 3224 of 2010 were never 

properly initiated?

B. Whether the [PCRA] court erred in denying [Appellant’s] 

amended PCRA [petition] when counsel was ineffective by 

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7 Appointed PCRA counsel filed amended petitions on Docket No. 3224-2010 

and Docket Nos. 5345-2009 and 5350-2009 on November 21, 2014 and 

April 17, 2015, respectively.

8

The PCRA court filed a second order on January 6, 2016 that merely 

corrected a filing technicality.

9 The PCRA court did not order Appellant to file a Pa.R.A.P. 1925(b) 

statement of matters complained of on appeal. On January 14, 2016, the 

PCRA court adopted its December 28, 2014 PCRA Opinion as its Pa.R.A.P. 

1925(a) opinion.
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advising him that such waiver would result in him receiving a 

lenient sentence?

C. Whether the [PCRA] court erred in denying [Appellant’s] 

amendended [sic] PCRA [petition] when trial counsel was 

ineffective by failing to advise [Appellant] that his version of 

events was incredible which statement induced [Appellant] to 

present false testimony that his actions were a response to the 

victim’s assaultive behavior?

D. Whether the [PCRA] court erred in denying [Appellant’s] 

amended PCRA [petition] when counsel failed to withdraw when 

there existed an actual conflict of interest between counsel and 

[Appellant] which was manifested by [Appellant] electing to 

represent himself on the charges docketed at No. 3224 of 2010?

Appellant’s Brief, p. 4 (unnecessary capitalization removed).

Our standard of review is well-settled. “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. Fears, 

86 A.3d 795, 803 (Pa.2014) (internal quotation marks and citation omitted). 

“The PCRA court’s findings will not be disturbed unless there is no support 

for the findings in the certified record.” Commonwealth v. Barndt, 74 

A.3d 185, 191-192 (Pa.Super.2013) (internal quotations and citations 

omitted). “The 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. Spotz, 84 A.3d 294, 

311 (Pa.2014) (citation omitted). “It is well-settled that a PCRA court’s 

credibility determinations are binding upon an appellate court so long as 

they are supported by the record.” Commonwealth v. Robinson, 82 A.3d 

998, 1013 (Pa.2013) (citation omitted). However, this Court reviews the 
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PCRA court’s legal conclusions de novo. Commonwealth v. Rigg, 84 A.3d 

1080, 1084 (Pa.Super.2014) (citation omitted).

Pennsylvania courts apply the Pierce10 test to review claims of 

ineffective assistance of counsel:

When a petitioner alleges trial counsel’s ineffectiveness in a 

PCRA petition, he must prove by a preponderance of the 

evidence that his conviction or sentence resulted from ineffective 

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. We have interpreted this provision in the PCRA to 

mean that the petitioner must show: (1) that his claim of 

counsel’s ineffectiveness has merit; (2) that counsel had no 

reasonable strategic basis for his action or inaction; and (3) that 

the error of counsel prejudiced the petitioner-i.e., that there is a 

reasonable probability that, but for the error of counsel, the 

outcome of the proceeding would have been different. We 

presume that counsel is effective, and it is the burden of 

Appellant to show otherwise.

Commonwealth v. duPont, 860 A.2d 525, 531 (Pa.Super.2004) (internal 

citations and quotations omitted). The petitioner bears the burden of 

proving all three prongs of this test. Commonwealth v. Meadows, 787 

A.2d 312, 319-320 (Pa.2001). “If an appellant fails to prove by a 

preponderance of the evidence any of the Pierce prongs, the Court need not 

address the remaining prongs of the test.” Commonwealth v. Fitzgerald, 

979 A.2d 908, 911 (Pa.2010) (citation omitted).

____________________________________________

10 Commonwealth v. Pierce, 527 A.2d 973 (Pa.1987).
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Appellant first alleges trial counsel provided ineffective assistance by 

failing to litigate the absence of a preliminary arraignment on Docket No. 

3224 of 2010. See Appellant’s Brief, pp. 12-15. This claim merits no relief.

Contrary to Appellant’s claims, the record reveals Appellant was both 

preliminarily arraigned and served with an arrest warrant pursuant to 

Pa.R.Crim.P. 540 at the preliminary hearing. Despite this, trial counsel still 

litigated this claim at the January 4, 2011 pretrial hearing, at which time the 

trial court denied relief. Because Appellant’s underlying claim lacks merit, 

Appellant’s claim of ineffective assistance of counsel fails.11 See

Commonwealth v. Koehler, 36 A.3d 121, 144 (Pa.2012) (“[C]ounsel 

cannot be deemed ineffective for failing to pursue a meritless claim.”). 

Appellant next claims trial counsel provided ineffective assistance of 

counsel by improperly inducing and coercing Appellant to waive his right to a 

jury trial at Docket Nos. 5350-2009 and 5345-2009 by advising him that 

such waiver could result in a lenient sentence. See Appellant’s Brief, pp. 

16-17. This claim also fails.

Initially, Appellant’s underlying claim that he was coerced to waive 

certain rights lacks merit. Prior to trial, the trial court conducted a colloquy 

with Appellant to make certain Appellant made a knowing, voluntary, and 

____________________________________________

11 We further note Appellant cannot prove prejudice, even if the errors he 

complained of occurred. Neither his PCRA petition, nor his brief to this 

Court, allege that he suffered any loss of rights or was uninformed as to the 

nature of the charges or alleged facts he was facing.
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intelligent waiver of his right to counsel. See N.T. 1/4/2011, pp. 59-63; 

N.T. 1/5/2011, pp. 4-17. The trial court reviewed Appellant’s right to 

counsel, the crimes and possible maximum punishments Appellant faced, 

and answered Appellant’s questions. See N.T. 1/5/2011, pp. 4-17.12 The 

trial court further reviewed Appellant’s written waiver of counsel. Id. at 16-

17. Further, at the PCRA hearing, Appellant admitted he signed the waiver 

of his right to a jury trial, that he understood the waiver, and that he would 

not have lied to the trial court regarding that waiver. See N.T. 7/7/2015, p. 

48.

Further, at the PCRA hearing, trial counsel testified that, based on the 

technical defense13 to be proffered at trial, he advised Appellant that a bench 

trial, opposed to a jury trial, may benefit Appellant’s case. See N.T. 

7/7/2015, pp. 20-24. This advice represents a reasonable strategic decision 

taken by trial counsel.

Additionally, no reasonable probability of a different outcome exists 

based on Appellant’s waiver of a jury trial. The fact that Appellant struck the 

____________________________________________

12 The trial court also appointed Appellant’s defense counsel as stand-by trial 

counsel for Appellant. See N.T. 1/5/2011, pp. 5-6.

13 Appellant’s version of events in this matter was that he injured the victim 

while on a binge of crack cocaine use, but that he did not mean to injure the 

victim. See N.T. 7/7/2015, p. 21. Counsel felt that the court would be 

better equipped than a jury to process the subtle differences between 

arguing a lack of mens rea while Appellant was intoxicated by cocaine as 

opposed to a negation of mens rea by the use of cocaine, which cannot 

negate specific intent in non-homicide crimes in Pennsylvania. See id.
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victim with a baseball bat was never in contention. Appellant himself 

explained that he “never really claimed to be – to be innocent of attacking 

[his] girlfriend.” N.T. 7/7/2015, p. 41. Instead, Appellant’s tactics were 

designed to get him a lesser sentence upon conviction. Id. at 41-42. 

Accordingly, the trial verdict would have been guilty whether delivered by a 

judge or a jury. 

Thirdly, Appellant claims trial counsel provided ineffective assistance of 

counsel by advising Appellant that his version of events was patently 

incredible. See Appellant’s Brief, pp. 17-18. This claim too merits no relief.

Trial counsel testified at the PCRA hearing that he never advised 

Appellant that his story was incredible. See N.T. 7/7/2015, p. 21. Trial 

counsel testified that he explained to Appellant that they could not argue 

that his cocaine use negated his mens rea, but instead would have to argue 

that he simply did not intend to hurt the victim. Id. at 21-22. Again, this 

advice explained counsel’s reasonable, strategic basis for pursuing the 

advised defense of lack of mens rea. Further, contrary to Appellant’s claim 

that counsel advised him to perjure himself, counsel expressly testified that 

he did not tell Appellant to lie. Id. at 30. The PCRA court viewed counsel’s 

testimony as credible. The PCRA court did not err in finding Appellant’s 

ineffective assistance of counsel claim lacked merit.

Finally, Appellant claims trial counsel provided ineffective assistance by 

failing to withdraw when irreconcilable differences arose between he and 

Appellant. See Appellant’s Brief, pp. 18-21. This claim also fails.
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We observe:

“[S]ubstantial reasons” or “irreconcilable differences” warranting 

appointment of new counsel are not established where the 

defendant merely alleges a strained relationship with counsel, 

where there is a difference of opinion in trial strategy, where the 

defendant lacks confidence in counsel’s ability, or where there is 

brevity of pretrial communications.

Commonwealth v. Floyd, 937 A.2d 494, 497 (Pa.Super.2007) (citing 

Commonwealth v. Grazier, 570 A.2d 1054, 1055-56 (Pa.Super.1990)).

Simply stated, the attorney-client relationship in the instant matter, 

while strained, does not rise to the level of irreconcilable differences that 

would have required counsel to remove himself from representation. As the 

PCRA court noted:

There is no question that [Appellant] and [t]rial [c]ounsel did not 

have an ideal attorney-client relationship. At one point, their 

relationship deteriorated to the point that they did not speak 

much[,] and [Appellant] chose to represent himself. After that 

[first] trial, in which he was convicted on all charges, [t]rial 

[c]ounsel took it upon himself to contact [Appellant] to 

reconsider him as an attorney. From there, [t]rial [c]ounsel was 

able to obtain a dismissal of the convenience store robbery 

charges, which impressed [Appellant] to the point that he agreed 

to have [t]rial [c]ounsel represent him in the non-jury trial. 

Further, [t]rial [c]ounsel testified that it is not unusual for there 

to be cycles of good and bad periods throughout a typical 

attorney-client relationship. After considering this, it is clear

that the relationship between [t]rial [c]ounsel and [Appellant] 

does not rise to the level of irreconcilable differences warranting 

withdraw of counsel.

PCRA Opinion, p. 8. This was not error.
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The PCRA court’s determination is supported by the record and free of 

legal error. Accordingly, we affirm the order of the PCRA court dismissing 

Appellant’s PCRA petition.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 8/22/2016