J-S31038-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

RICKY DAVID SMITH, 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 266 EDA 2022

Appeal from the PCRA Order Entered January 11, 2022

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

No(s): CP-51-CR-0002026-2017

BEFORE: BOWES, J., NICHOLS, J., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.: FILED OCTOBER 5, 2022

Ricky David Smith appeals from the January 11, 2022 order dismissing 

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 summarized the relevant facts of this case as follows:

At approximately 4:30 P.M. on March 2, 2016,

Appellant, an inmate at Curran-Fromhold Correctional 

Facility (hereinafter “CFCF”'), entered a designated 

officers’ area while Corrections Officer Jaimie Harris 

(hereinafter “Officer Harris”) completed inmate 

discharges. Appellant proceeded to move into the 

nearby phone room before returning to the officers’

area, at which point he positioned himself with his foot 

propped up on a commissary box, while slightly less 

than one foot away from Officer Harris.

Officer Harris testified that Appellant then placed his 

hands in the front of his pants and exposed his 

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* Former Justice specially assigned to the Superior Court.
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genitals to her. The situation escalated, leading 

Officer Harris to lock Appellant in the area for his own 

protection, as other inmates had begun reacting to the

confrontation and “getting rowdy.” Throughout this 

interaction, Officer Harris repeatedly demanded that 

Appellant stop exposing himself to her and stop using 

obscene language.

Officer Harris subsequently walked Appellant back to 

his cell. Approximately halfway to the cell, Appellant 

abruptly stopped and resisted officer efforts. 

Appellant moved close to Officer Harris, at which point 

she turned to get help from her partner, Officer

Langdon. Officer Harris then felt a sharp blow to the 

left side of her face, near the corner of her mouth and 

under her nasal cavity. Officer Harris testified that the 

resulting wound “started pouring blood,” and that 

“you could stick your finger through the cut” and move

it back and forth. Officer Harris confirmed that 

Appellant was the person who wounded her, but she 

could not be certain whether or not Appellant had a 

weapon in his hand when, he struck her. She did 

indicate that she could feel her skin tearing.

Following the blow from Appellant, Officer Harris 

turned and struck Appellant in the face. She then 

watched Appellant, while gripping his own face, enter 

another inmate’s cell and begin to wash the blood 

from his hands. It is unclear whether the blood on

Appellant’s hands carne from Officer Harris’ wound or 

his own. Officer Harris was taken for medical 

treatment at the prison. The wound was so severe 

that medical staff on site were unable to stop the 

bleeding. Officer Harris was subsequently transported 

to Erie Torresdale Hospital for emergency care.

Due to the severity of the injury, Officer Harris 

underwent plastic surgery the following morning of 

March 3, 2016, at approximately 6:00 A.M. The initial 

procedure required thirty-five stitches. A second 

surgery had to be performed on January 11, 2017. 

Despite the plastic surgeries, Officer Harris was left 

with a visible 3⁄4-inch scar, which runs from the inside 

of her lip to her nostril. Officer Harris now suffers from 
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numbness on the left side of her face due to nerve 

damage resulting from this injury. She also 

experiences twitching, which requires her to drink 

with a straw and eat using the right side of her mouth. 

PCRA court opinion, 3/16/22 at 2-3 (citations to notes of testimony omitted).

The relevant procedural history of this case, as gleaned from the 

certified record, is as follows: On May 15, 2018, Appellant waived his right to 

a jury and proceeded to a bench trial. That same day, Appellant was found 

guilty of aggravated assault, simple assault, indecent exposure, and recklessly 

endangering another person.

1

 On July 5, 2018, Appellant was sentenced to 

an aggregate term of 4 to 8 years’ imprisonment.2 

On January 24, 2020, a panel of this Court affirmed Appellant’s 

judgment of sentence. See Commonwealth v. Smith, 226 A.3d 652

(Pa.Super. 2020), appeal denied, 236 A.3d 1037 (Pa. 2020). Our Supreme 

Court denied Appellant’s petition for allowance of appeal on June 15, 2020. 

Id.

On August 4, 2020, Appellant filed a timely pro se PCRA petition and 

Peter Alan Levin, Esq. (hereinafter, “PCRA counsel”) was appointed to 

represent him. PCRA counsel filed an amended petition on Appellant’s behalf 

on March 18, 2021. Thereafter, on August 24, 2021, the PCRA court provided 

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1 18 Pa.C.S.A. §§ 2702(a), 2701(a), 3127(a), and 2705, respectively. 

2 Appellant was represented at his waiver trial by Joel Krantz, Esq. 

(hereinafter, “trial counsel”).
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Appellant with notice of its intention to dismiss his petition without a hearing, 

pursuant to Pa.R.Crim.P. 907(1). Appellant did not respond to the PCRA 

court’s Rule 907 notice. On January 11, 2022, the PCRA court dismissed 

Appellant’s petition without a hearing and permitted PCRA counsel to 

withdraw. 

The record, however, reflects that PCRA counsel never filed a motion to 

withdraw. Thereafter, on January 19, 2022, PCRA counsel filed a notice of 

appeal on Appellant’s behalf. On March 1, 2022, this Court issued an order 

directing the PCRA court to clarify Appellant’s representation status. On March 

7, 2022, the PCRA court entered an order reappointing PCRA counsel to 

represent Appellant on appeal.3

Appellant raises the following issues for our review:

I. Whether the PCRA court erred in denying 

Appellant’s PCRA petition without an evidentiary 

hearing on the issues raised in the amended 

PCRA petition?

II. Whether the PCRA court was in error in not 

granting relief on the issue that counsel was 

ineffective for the following reasons?

A. Counsel was ineffective for failure to file a 

motion for reconsideration of sentence.

B. Counsel was ineffective for failing to file a 

post[-]verdict motion that the verdict was 

against the weight of the evidence.

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3 Appellant and the PCRA court have complied with Pa.R.A.P. 1925.
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Appellant’s brief at 8 (parentheses omitted).

Proper appellate review of a PCRA court’s dismissal of a PCRA petition 

is limited to the examination of “whether the PCRA court’s determination is 

supported by the record and free of legal error.” Commonwealth v. Miller, 

102 A.3d 988, 992 (Pa.Super. 2014) (citation omitted). “This Court grants 

great deference to the findings of the PCRA court, and we will not disturb those 

findings merely because the record could support a contrary holding.” 

Commonwealth v. Patterson, 143 A.3d 394, 397 (Pa.Super. 2016) (citation 

omitted). In order to be eligible for PCRA relief, a defendant must plead and 

prove by a preponderance of the evidence that his conviction or sentence 

arose from one or more of the errors listed at 42 Pa.C.S.A. § 9543(a)(2). 

These issues must be neither previously litigated nor waived. 42 Pa.C.S.A. 

§ 9543(a)(3). 

Appellant first contends that the PCRA court erred in dismissing his PCRA 

petition without conducting an evidentiary hearing. Appellant’s brief at 13-

14.

This court has long recognized that there is no absolute right to an 

evidentiary hearing. Commonwealth v. Hart, 911 A.2d 939, 941 (Pa.Super. 

2006) (citation omitted). When the PCRA court denies a petition without an 

evidentiary hearing, as is the case here, we “examine each issue raised in the 

PCRA petition in light of the record certified before it in order to determine if 

the PCRA court erred in its determination that there were no genuine issues 

of material fact in controversy and in denying relief without conducting an 
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evidentiary hearing.” Commonwealth v. Khalifah, 852 A.2d 1238, 1240 

(Pa.Super. 2004). “It is within the PCRA court’s discretion to decline to hold 

a hearing if the petitioner’s claim is patently frivolous and has no support 

either in the record or other evidence.” Commonwealth v. Wah, 42 A.3d 

335, 338 (Pa.Super. 2012) (citations omitted). 

Instantly, Appellant contends that an evidentiary hearing was warranted 

in this matter because his trial counsel was ineffective for failing to file postsentence motions challenging the weight of the evidence and for 

reconsideration of his sentence. Appellant’s brief at 15, 17. We disagree.

To prevail on a claim of ineffective assistance of counsel under the PCRA, 

a petitioner must establish the following three factors: “first[,] the underlying 

claim has arguable merit; second, that counsel had no reasonable basis for 

his action or inaction; and third, that Appellant was prejudiced.” 

Commonwealth v. Charleston, 94 A.3d 1012, 1020 (Pa.Super. 2014) 

(citation omitted), appeal denied, 104 A.3d 523 (Pa. 2014). 

[A] PCRA petitioner will be granted relief only when he 

proves, by a preponderance of the evidence, that his 

conviction or sentence resulted from the [i]neffective 

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. 

Commonwealth v. Spotz, 84 A.3d 294, 311 (Pa. 2014) (internal quotation 

marks omitted; some brackets in original), citing 42 Pa.C.S.A. 

§ 9543(a)(2)(ii).
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“[C]ounsel is presumed to be effective and the burden of demonstrating 

ineffectiveness rests on appellant.” Commonwealth v. Ousley, 21 A.3d 

1238, 1242 (Pa.Super. 2011) (citation omitted), appeal denied, 30 A.3d 487 

(Pa. 2011). 

Upon review, we find that Appellant’s ineffectiveness claims fail because 

he failed to satisfy the first and third prongs of the aforementioned test; 

namely, that his underlying claims have arguable merit and that he was 

prejudiced by trial counsel’s failure to file to file post-sentence motions based 

on the weight of the evidence and the discretionary aspects of his sentence. 

Our Supreme Court has long recognized that to prove prejudice, a 

petitioner must demonstrate that “but for counsel’s deficient stewardship, 

there is a reasonable likelihood the outcome of the proceedings would have 

been different.” Commonwealth v. Simpson, 66 A.3d 253, 260 (Pa. 2013) 

(citation omitted). Thus, a petitioner seeking to establish prejudice for failure 

to file post-sentence motions must demonstrate that the trial court would have 

granted the motion had it been filed. See e.g., Commonwealth v. Reaves, 

923 A.2d 1119, 1131-1132 (Pa. 2007) (holding that whether “counsel can be 

deemed ineffective, then, depends upon whether [the defendant] has proven 

that a motion to reconsider sentence, if filed..., would have led to a different 

and more favorable outcome at [ ] sentencing.”). Additionally, “[c]ounsel will 

not be deemed ineffective for failing to raise a claim that has no merit.” 
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Commonwealth v. Johnson, 815 A.2d 563, 590 (Pa. 2002) (citation 

omitted). 

Here, the record reflects that the filing of a post-sentence motion 

challenging the weight of the evidence would have been futile because the 

trial judge, sitting as factfinder, specifically indicated that it found the 

testimony of victim Officer Harris credible, and elected not to believe 

Appellant’s version of the events:

[T]he weight of the evidence supported the verdict. 

The fact that no video evidence of the incident exists 

is immaterial to the issue because Officer Harris’s 

identification and testimony are sufficient to place 

Appellant at the scene of the injury. Therefore, 

Appellant’s post-verdict motion that the verdict was 

against the weight of the evidence would have been 

denied and Appellant cannot establish relief under the 

prejudice prong....

PCRA court opinion, 3/16/22 at 7. 

Likewise, we agree with the PCRA court that Appellant failed to 

demonstrate actual prejudice on account of trial counsel’s failure to file a 

motion for reconsideration challenging the discretionary aspects of his 

sentence. As the PCRA court explained in its opinion,

[Appellant] asserts that his sentence should have 

been less due to him waiving a jury trial and due to 

his mental state. Appellant further claims that this 

Court should not have considered the fact that the 

victim was a woman for purposes of determining 

Appellant’s sentence. The claim is without merit.

Prior to imposing sentence, this Court gave serious 

and careful consideration to numerous factors. The 

record indicates that this Court had reviewed the 
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presentence investigation report and the mental 

health evaluation referenced by Appellant in his 

Amended PCRA Petition. Further, the record clearly 

shows that this Court explicitly stated at the time of

sentencing that it was taking into consideration that 

this was a waiver trial. Finally, this Court expressed 

that [it] was also taking into consideration the 

circumstances that occurred, as well as the fact that 

the Complainant in this incident was a woman, 

thereby permissibly considering the underlying facts 

and the overall effect and nature of the crime. 

Appellant has failed to demonstrate how the Court 

abused its discretion in issuing its sentence. This 

Court considered all relevant factors in issuing its 

sentence and therefore, Appellant’s Motion for 

Reconsideration of Sentence would have been denied. 

Id. at 8-9 (citations and internal quotation marks omitted). 

Based on the foregoing, we find that Appellant’s ineffectiveness claims

are frivolous and unsupported by the record. See Wah, 42 A.3d at 338. 

Accordingly, we conclude that the PCRA court did not err in dismissing 

Appellant’s petition without conducting an evidentiary hearing and affirm its 

January 11, 2022 order.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 10/05/2022
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