J. S 0 6 0 44 /1 9

NON

- PRECEDENTIAL DECISION

– SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA :

: IN THE SUPERIOR COURT OF

PENNSYLVANIA

v. :

: CHARLES LALONDE

, : No. 137 E DA 20 18

: Appellant :

Appeal from the PCRA Order, December 20, 2017,
in the Court of Common Pleas of Philadelphia County
Criminal Division at No. CP

- 51

- CR

- 0003703

- 2011

BEFORE: BOWES

, J., DUBOW , J., AND FORD ELLIOTT, P.J.E.

MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED APRIL 1 5 , 2019

Charles Lalonde appeals from the December 20, 2017 order entered by

the Court of Common Pleas of Philadelphia County dismissing without a

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

,

42 Pa.C.S.A. §§ 9541

- 9546. After careful review, we affirm.

The PCRA court provided the following synopsis of the relevant

procedural history:

On March 12, 2011, [appellant] was arrested and charged with rape and aggravated indecent assault[ 1 ]
after Ph iladelphia detectives received notification that

there was a match in the Combined DNA Index System, linking him to a 2003 rape case that occurred on a secluded pedestrian

- only walkway outside of the Franklin Mills Mall. On December 8, 2011, the [trial]

c ourt conducted a jury trial and on December 13, 2011, the jury found [appellant] guilty of rape and

1 18 Pa.C.S.A. §§ 3121(a) and 3125(a), respectively.J. S 06 0 44 /1 9

- 2

- aggravated indecent assault. Following trial, [appellant] was evaluated by the Sexual Offender Assessment Board and determined to be a Sexually
Violent Pre dator. On August 3, 2012, [appellant] was sentenced to 15 to 30 years [’] state incarceration. On August 7, 2012, [appellant] filed post

- sentence motions, wh ich were denied by operation of law on December 6, 2012.

[On] December 12, 2012, [appellant] file d a Notice of Appeal to the Superior Court. On April 28, 2014[,] the Superior Court affirmed the trial court’s [judgment

of sentence ]

. [ Appellant] filed for allowance of appeal
but was denied allocatur on October 8, 2014. [ See
Commonwealth v. Lalonde , 1 02 A.3d 544 (Pa.Super. 2014) (unpublished memorandum), appeal denied , 101 A.3d 785 (Pa. 2014).] On April 28, 2015, [appellant] filed a timely pro se PCRA petition and a subsequent supplemental amended petition was filed on February 1 [4] , 2017. In his peti tions, [appellant] argued that trial counsel was ineffective for failing to call witnesses and for failing to subpoena crucial security footage related to the

case.

On July 26, 2016, David Rudenstein, Esquire, was appointed as PCRA counsel. On February 1 4, 2017, counsel filed an amended petition for post

- conviction relief which included a request for funds to employ a private investigator. Said funding was granted by [the PCRA] court. Thereafter, [the PCRA court] received a letter from counsel on April 19, 2017 [,] indicating that counsel would not be filing a supplement to his amended petition. On November 27, 2017, counsel informed [the PCRA court] at a scheduled status listing that, after having further contact with [appellant], he did not have suffic ient necessary information to hire an investigator. As a result, [the PCRA court] sent a [Pa.R.Crim.P.] 907 Notice of Intent to Dismiss to [appellant] on November 28, 2017. On December 11, 2017, [appellant] replied to [the PCRA court’s] 907 notice. On D ecember 20, 2017 , after independent review of [appellant’s] pro se petitions, PCRA Counsel’s amended petition, theJ. S 06 0 44 /1 9

- 3

- Commonwealth’s answer, and [appellant’s] reply to the 907 notice, [the PCRA court] dismissed [appellant’s] petition without a hearing based u pon lack of merit. On December 29, 2017, [appellant] appealed the dismissal of his petition to the Superior

Court.

PCRA court opinion, 6/15/18 at 2

- 3 (citation to the record omitted).

On January 17, 2018, the PCRA court ordered appellant to file a conci se

statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).

Appellant timely complied on February 6, 2018. On June 15, 2018, the PCRA

court filed an opinion pursuant to Pa.R.A.P. 1925(a).

Appellant raises the following issue for our re view:

Did the Honorable PCRA C ourt err when it dismissed [appellant’s] Amended Petition without holding a hearing?

Appellant’s brief at 3.

When reviewing a PCRA court’s denial of PCRA relief, it is well settled

that:

[o]ur standard of review [] is whethe r the record

supports the PCRA court’s determination and whether the PCRA court’s decision is free of legal error. Commonwealth v. Phillips , 31 A.3d 317, 319 (Pa.Super. 2011) (citing Commonwealth v. Berry

, 877 A.2d 479. 482 (Pa.Super. 2005)). The PCRA

co urt’s findings will not be disturbed unless there is no support for the findings in the certified record. Id. (citing Commonwealth v. Carr , 768 A.2d 1164, 1166 (Pa.Super. 2001).

Commonwealth v. Larson , 90 A.3d 1, 4 (Pa.Super. 2014).

Our supreme court has further stated as follows:J. S 06 0 44 /1 9

- 4

- The PCRA court has the discretion to dismiss a petition without a hearing when the court is satisfied “that there are no genuine issues concerning any material fact, the defendant is not entitled to post

- conviction
collateral relief, and no legitimate purpose would be served by further proceedings.” Commonwealth v. Paddy , [] 15 A.3d 431, 442 ([Pa.] 2011) (quoting Pa.R.Crim.P. 909(B)(2)). “To obtain reversal of a PCRA court’s decision to dismiss a petition without a hearing, an appellant must show that he raised a genuine issue of fact which, if resolved in his favor, would have entitled him to relief, or that the court otherwise abused its discretion in denying a hearing.”

Id. (quoting Commonwealth v. D’Amato , [] 856
A.2d 80 6, 820 [Pa.] 2004)). We stress that an evidentiary hearing “is not meant to function as a fishing expedition for any possible evidence that may support some speculative claim of ineffectiveness.”

Commonwealth v. Jones , [] 811 A.2d 994, 1003 n. 8 ([Pa.] 2 002) (citation omitted). In Jones , we declined to remand for an evidentiary hearing when the appellant merely asserted that counsel did not
have a reasonable basis for his lack of action but made no proffer of evidence as to counsel’s lack of action.

Com monwealth v. Roney , 79 A.3d 595, 640

- 605 (Pa. 2013), cert. denied

sub nom. Roney v. Pennsylvania , 135 S.Ct. 56 (2014).

Here, appellant contends that trial counsel rendered ineffective

assistance for failing to “secure any video tapes that [Franklin Mills Mall]

security would have made.” (Appellant’s brief at 8.) Moreover, appellant

makes the bald allegation that “trial counsel, apparently, did nothing to

marshal any evidence in this case[.]” ( Id. at 9.)

Appellant, however, provides no evidence to sup port these claims, aside

from mere speculation that the videotapes in question even exist. Indeed, as

noted by the PCRA court,J. S 06 0 44 /1 9

- 5

- [Appellant] failed to demonstrate that this supposed tape ever existed or what was on it. Moreover, [appellant] committed [his ] crimes in 2003 but was not apprehended until 2011, therefore it is very unlikely that security footage from eight years earlier would still have existed at the time of trial eight years

later.

PCRA court opinion, 6/15/18 at 5

- 6.

Based on the record bef ore us , we find that the record supports the

PCRA court’s determination that holding an evidentiary hearing would serve

no further legitimate purpose. We further find that the PCRA court’s

determination is free of legal error. Accordingly, the PCRA court did not abuse

i ts discretion when it dismissed appellant’s PCRA petition without a hearing.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 4/15/19