J

- S74024

- 18

NON - PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENN SYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v.
JARVAY M

. DAVIS Appellant No. 1230 EDA 2018

Appeal from the PCRA Order entered April 17 , 2018 In the Court of Common Pleas of Philadelphia County Criminal Division at No: CP

- 51

- CR

- 0008720

- 2009

BEFORE: LAZARUS, J., STABILE, J., and McLAUGHLIN, J. MEMORANDUM BY STABILE, J.: FILED FEBRUARY 1 4 , 2019 Appellant, Jarvay M. Davis, appeals from the April 17 , 201 8 order of the Court of Common Pleas of Philadelphia County denying his petition for collateral relief under the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541

- 46. Appellant argues that the PCRA court erred in not holding an evidentiary hearing on his claim of ineffective assistance of counsel. We disagree. Accordingly, we affirm. The underl y ing facts and procedural history are uncontested. Briefly, on July 19, 2012, Appellant pled guilty to attempted burglary, conspiracy to commit burglary, and possession of an instrument of crime. 1 The trial court imposed three sentences of one to five years of incarceration, two of which

_________________ __________ ______ ____ _______
1 18 Pa.C.S.A. §§ 901, 3502, 903, and 907, respectively.J

- S74024

- 18

- 2

-

ran concurrently with another sentence Appellant was serving, and one of which ran consecutive ly

. Appellant did not file a direct appeal. Appellant filed the underlying P CRA petition, his first, on May 30, 2013. The PCRA court appointed counsel on February 18, 2014, and counsel filed an amended petition on August 10, 2014. “The claim presented [in the amended petition] was stated the same as is stated in the [Pa.R.A.P. 19 25(b)] statement [ i.e. , plea counsel was ineffective for divulg ing confidential information to prosecutor,] followed by a request for an evidentiary hearing in order to determine what information was relayed to the prosecution and how it affected the sente nce. ” PCRA Court Opinion, 6/13/18, at 3 (quotation marks omitted). 2 After issuing a notice to dismiss, the PCRA court, on March 21, 2016 , denied the petition as untimely. On a ppeal, we disagreed with the PCRA court’s finding of untimeliness, and remanded to the PCRA court to address the merits of the petition. See Commonwealth v. Davis , No. 1036 EDA 2016, unpublished memorandum (Pa. Super. March 13, 2017). After remand, on April 17, 2017, the PCRA court denied Appe llant’s PCRA petition. This appeal followed. On appeal, Appellant argues that the PCRA court erred in not holding a hearing on his PCRA petition in which he alleged ineffective assistance of plea

_________________ __________ ______ ____ _______ 2 “The amended petition did not include the identification of any evidence in support of the claim, other than [a] single citation to the plea/sentencing hearing notes. PCRA Court Opinion, 6/13/18, at 3. Elsewhere, the PCRA court characterizes the citatio n to the sentencing transcript as “cryptic.” Id.J

- S74024

- 18

- 3

-

counsel. Specifically, as noted, Appellant claims that pl ea counsel was ineffective for sharing with the prosecutor confidential information Appellant related to plea counsel. For the reasons stated below, we conclude that Appellant is entitled to no relief. On review, we must determine whether the record sup ports the PCRA court’s findings and whether the court’s ruling is free of legal error. Commonwealth v. Edmiston , 65 A.3d 339, 345 (Pa. 2013), cert. denied , 571 U.S. 1026 (2013). Regarding the ineffective assistance of counsel claim, we note that “[i]t
is well

- established that counsel is presumed effective and a PCRA petitioner bears the burden of proving ineffectiveness.” Commonwealth v. Reyes Rodriguez , 111 A3d 775, 779

- 80 (Pa. Super. 2015) ( en banc ) (citations and brackets omitted). To prevail on an [ineffective assistance of counsel] claim, a PCRA petitioner must plead and prove by a preponderance of the evidence that (1) the underlying legal claim has arguable merit; (2) counsel had no reasonable basis for acting or failing to act; and (3) the petitioner suffered resulting prejudice. Commonwealth v. Baumhammers , 92 A.3d 708, 719 ( Pa. 2014) (citing [ Commonwealth v. Pierce , 527 A.2d 973, 975

– 76 (Pa. 1987)]). A petitioner must prove all three facto rs of the

“ Pierce test,” or the claim fails. Id. In addition, on appeal, a petitioner must adequately discuss all three factors of the “ Pierce test,” or the appellate court will reject the claim. Commonwealth v. Fears , [ 86 A.3d 795, 804 ( Pa. 2014) ]

. Id. at 780. Finally, we review claims of denial of a request to hold a hearing as
follows:J

- S74024

- 18

- 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 purp ose 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 rai sed 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 806, 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. 2002) ] (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. Commonwealth v. Roney , 79 A.3d 595, 604

- 05 (Pa. 2013). 3

_________________ __________ ______ ____ _______ 3 See also Pa.R.Crim.P. 907 (1) (Disposition without Hearing) , which in relevant part provides : [T]he judge shall promptly review the petition, any answer by the attorney for the Commonwealth, and other matters of record relating to the defendant’s claim(s). If the judge is satisfied from this review that there are no genuine issues concerning any m aterial fact and that the defendant is not entitled to post

conviction collateral relief, and no purpose would be served by any further proceedings, the judge shall give notice to the parties of the intention to dismiss the petition and shall state in the notice the reasons for the dismissal. The defendant may respond to the proposed dismissal within 20 days of the date of the notice. The judge thereafter shall order the petition dismissed, grant leave to file an amended petition, or direct that the proce edings continue. Pa.R.Crim.P. 907(1).J

- S74024

- 18

- 5

-

A review of Appellant’s filings, including his appellate brief , reveals that Appellant mentioned the first prong of the ineffective assistance of counsel
standard in his filings , failing , however, to provide any discussion regarding
the oth er two prongs ( i.e. , rational basis and prejudice). 4 Under the above
authorities , we must conclude that Appellant’s claim is waived for failure to plead and prove by a preponderance of the evi de nce all prongs of the
ineffective assistance of counsel test

. See also Commonwealth v. Bracey , 795 A.2d 935, 940 n.4 (Pa. 2001) (failure to meaningfully discuss and apply the standard governing the review of ineffectiveness claims does not satisfy petitioner’s burden of establishing he is entitled to relief).
To the extent Appellant addressed the first prong, we note that Appellant failed to show that his claim has merit by a preponderance of
evidence. Indeed, the Appellant does not even state that he has a claim, let
alone a meritorious one. The entire argument in support to his claim consists
of the following : “ Whether or not” plea counsel disclosed confidential
information to the prosecutor raises a material issue of fact, which required a

_________________ __________ ______ ____ _______
4 Similarly, the PCRA court found that Appellant “ made no attempt to support the bald claim of trial counsel’s alleged breach of confidentiality with any record evidence or references to any that may exist elsewhere [.]” PCRA Court Opinion, 6/13/18 , at 11. This finding is consistent with Appellant’s own argument: “There is absolutely n othing in the record for the court to make a determination. . . . The only way to make such a determination would have been for the court to have held an evidentiary hearing.” Appellant’s Brief at 15.J

- S74024

- 18

- 6

-

hearing

. Appellant’s Brief at 15. Having failing to hold a hearing, the PCRA
court’s deni al of relief must be reversed. Id. Appellant fundamentally misapprehends what he needs to plead and prove in his PCRA petition to get an evidentiary hearing and the purpose of a hearing on a PCRA petition.
In the context of ineffe ctive assistance of counsel claims, it is well

established that counsel’s effectiveness is presumed, and that petitioner must plead and prove by a preponderance of the evidence that counsel was not
effective. Failure to do so results in a dismissal of the petition. To avoid such a result, “counsel must set forth an offer to prove at an appropriate hearing sufficient facts upon which a reviewing court can conclude that trial counsel may have, in fact, been ineffective.” Commonwealth v. Pettus , [424 A.2d 1 332, 1335 (Pa. 1981)]. However, “[t]he controlling factor in determining whether a petition may be dismissed without a hearing is the status of the substantive assertions in the petition.” Commonwealth v. Weddington , [ 522 A.2d 1050, 1052 ( Pa. 1987) ]

. Commonwealth v. Stanley , 632 A.2d 871, 872 (Pa. 1993).
He re, Appellant did not set forth an offer to prove the alleged breach of confidentiality

. 5 Indeed, Appellant acknowledged that he needed an evidentiary hearing to determine whether plea counsel disc losed confidential
information and the impact of the breach, if any

. PCRA Court Opinion,

_________________ __________ ______ ____ _______ 5 As noted above, Appellant acknowledged that the record is devoid of any of such evidence. “There is absolutely n othing in the record for the court to make a determination.” Appellan t’s Brief at 15.J

- S74024

- 18

- 7

-

6/13/18, at 3; Appellant’s Brief at 15. Petitioner must set forth an offer of facts supporting his/her claim in the petition , as a n evidentiary hearing “is not meant to function as a fishing expedition for any possible evidence that may support some speculative claim of ineffectiveness.” Jones , 811 A.2d at 1003
n.8. In light of the foregoing, we conclude that the PCRA court did not err in dismissing Appellant’s PCRA petition without holding a hearing.
Order affirmed. Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 2/14/19