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Commonwealth v. Mayo

Superior Court of Pennsylvania

May 22, 2013

COMMONWEALTH OF PENNSYLVANIA, Appellee
v.
ALFRED A. MAYO, Appellant

NON-PRECEDENTIAL DECISION

Appeal from the PCRA Order of September 25, 2012, in the Court of Common Pleas of Schuylkill County, Criminal Division at Nos. CP-54-CR-0001538-2008, CP-54-CR-0001540-2008

BEFORE: SHOGAN, MUNDY and COLVILLE[*], JJ.

MEMORANDUM

COLVILLE, J.:

Appellant presents numerous issues in this appeal from the order denying his petition under the Post Conviction Relief Act ("PCRA"). We affirm the order.

The record reveals the following facts. Police used informants, one named Reaves and one named Hook, to buy crack cocaine from Appellant. The drug purchases occurred on two separate dates. As a result of those drug transactions, the Commonwealth charged Appellant in two criminal cases with counts of delivery of a controlled substance, possession with intent to deliver a controlled substance, possession of a controlled substance, and unlawful use of a communication facility. Prior to trial, he filed a petition for habeas corpus relief. The court denied the petition. Appellant later proceeded to a jury trial in which his two cases were consolidated. The jury convicted him of all counts. On direct appeal, this Court affirmed his judgment of sentence. Commonwealth v. Mayo, 30 A.3d 547 (Pa. Super. 2011) (unpublished memorandum). He did not petition the Pennsylvania Supreme Court for allowance of appeal. Appellant later filed a timely PCRA petition. The court denied relief after a hearing. Appellant filed this appeal.

The following legal principles will be relevant to our resolution of this case.

To establish ineffectiveness of counsel, a PCRA petitioner must show the underlying claim has arguable merit, counsel's actions lacked any reasonable basis, and counsel's actions prejudiced the petitioner. Commonwealth v. Cox, 983 A.2d 666, 678 (Pa. 2009). Counsel's actions will not be found to have lacked a reasonable basis unless the petitioner proves that an alternative not chosen by counsel offered a potential for success substantially greater than the course actually pursued. Id. Prejudice means that, absent counsel's conduct, there is a reasonable probability the outcome of the proceedings would have been different. Id. The law presumes counsel was effective. Id.

Generally, issues and/or theories not preserved in the PCRA court cannot be raised on appeal. Pa.R.A.P. 302(a). Additionally, it is the appellant's duty to demonstrate which part of the certified record reveals the fact of preservation. Commonwealth v. Rush, 959 A.2d 945, 949-50 (Pa. Super. 2008); Pa.R.A.P. 2117(c), 2119(e). Also, an issue is waived for PCRA purposes if it could have been raised at trial or on appeal but was not. 42 Pa.C.S.A. § 9544(b).

Our standard for reviewing PCRA orders is to determine whether the court's rulings are supported by the record and free of legal error. Cox, 983 A.2d at 679. A PCRA court's credibility determinations are binding on this Court if supported by the record. Commonwealth v. Widgins, 29 A.3d 816, 820 (Pa. Super. 2011).

It is an appellant's burden to persuade us the PCRA court erred and relief is due. Commonwealth v. Wrecks, 931 A.2d 717, 722 (Pa. Super. 2007). To satisfy this burden, the appellant must present arguments sufficiently developed for our review. Commonwealth v. Hardy, 918 A.2d 766, 771 (Pa. Super. 2007). Those arguments must contain pertinent discussion, references to the record and citations to legal authorities. Id.; Pa.R.A.P. 2119(a), (b), (c). Citations to authorities must articulate the principles for which they are cited. Hardy, 918 A.2d at 771; Pa.R.A.P. 2119(b). This Court will not act as counsel and will not develop arguments on behalf of an appellant. Hardy, 918 A.2d at 771.

Appellant first claims his trial counsel was ineffective in improperly advising Appellant that one or more of Appellant's prior convictions could be used to impeach him if he testified at trial. According to Appellant, the conviction(s) could not be used in that fashion because it or they were not crimen falsi. Appellant's point is that he chose not to testify based on the allegedly improper advice about his criminal record and its potential evidentiary uses.

After considering parts of the trial transcript in which Appellant, his counsel and the court discussed Appellant's right to testify, the PCRA court simply did not believe Appellant's PCRA testimony as to the reason he chose not to testify (i.e., counsel's advice about the potential evidentiary uses of Appellant's record). In this regard, the court essentially reasoned that, although trial counsel may have initially given inaccurate advice about the possible uses of Appellant's record, any such advice was not material to Appellant's choice. More particularly, the court found that trial counsel advised Appellant not to testify at trial because counsel's strategy was to rely both on upcoming defense witnesses and on what counsel believed were weaknesses in the Commonwealth's proof (e.g., weak testimony of one or both informants) The court also found this strategy to have been reasonable. Additionally, the court further determined that Appellant, when deciding not to testify, accepted and agreed with counsel's aforesaid strategy and did not make his decision because of any advice, even if improper, concerning his criminal history. Based on the foregoing reasons, the PCRA court concluded Appellant had not proven trial counsel was ineffective.

Appellant has not shown us that the court's credibility and factual determinations regarding his reason for not testifying were unsupported by the record. We will not disturb those determinations. ...


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