Appeal from the PCRA Order entered May 17, 2012 In the Court of Common Pleas of Montgomery County Criminal Division at No(s): CP-46-CR-0007966-2010
BEFORE: LAZARUS, OLSON AND FITZGERALD, [*] JJ.
Appellant, Joseph H. Michaud, appeals from the order entered May 17, 2012, denying his petition filed pursuant to the Post Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546 ("PCRA"). We affirm.
The PCRA court summarized the relevant factual and procedural background of this matter as follows.
On December 17, 2010, the Commonwealth filed an [i]nformation charging [Appellant] with [a]ggravated [i]ndecent [a]ssault,  [u]nlawful [c]ontact or [c]ommunication with a [m]inor,  [i]ndecent [a]ssault of a [p]erson [l]ess than 13 [y]ears of [a]ge,  and [c]orruption of [m]inors. The charges arose from an incident that occurred sometime between September 2006 and September 2007 in Montgomery Township, Montgomery County, when [Appellant] reached his right hand inside the shorts of a then - nine or 10-year-old girl and rubbed her vagina with his finger. The victim was a neighbor of [Appellant's] at the time of the incident.
The case proceeded to a bench trial on May 18, 2011. The evidence consisted of, inter alia, testimony from the victim, a recorded conversation between [Appellant] and an acquaintance and [Appellant's] statement to police. During both the recorded statement and the statement to police, [Appellant] admitted to touching the nine- or 10-year-old victim, but indicated that she had enticed him. The victim testified, inter alia, that [Appellant] moved his finger "[l]ike around, like, the outside, but like it wasn't on the outside. It was still in." [Appellant], as was his right, did not testify. Instead, his attorney Brian Smith, Esquire, attempted to challenge the Commonwealth's evidence on the issue of penetration, which is a required element for the charge of [a]ggravated [i]ndecent [a]ssault.
On April 28, 2011, the [trial court] found [Appellant] guilty of all charges. On July 25, 2011, the court sentenced [Appellant] under a mandatory minimum sentencing scheme to five to 15 years imprisonment.
On August 2, 2011, [Appellant], through newly[-]retained counsel, John B. Elbert, Esquire, filed a [p]ost-[v]erdict [m]otion in which he stated that he intended to file an appeal challenging the effectiveness of trial counsel, Brian Smith, Esquire. The sole relief requested in the [p]ost-[v]erdict [m]otion was that [Appellant's] bail be reinstated pending the outcome of the proposed appeal. On August 10, 2011, [the trial court] issued an [o]rder denying the [p]ost-[v]erdict [m]otion.
On August 31, 2011, [Appellant], through attorney Elbert, filed a [n]otice of [a]ppeal with the Superior Court. He also filed an emergency motion for reinstatement of bail with the Superior Court.
The Superior Court issued an [o]rder dated September 12, 2011, directing that [the trial court] hold a hearing on the emergency bail motion. In response, [the trial court] scheduled a hearing on the motion for October 4, 2011. But on September 15, 2011, the Superior Court issued another [o]rder stating the appeal had been discontinued. As a result, the Superior Court stated the [o]rder directing [the trial court] to hold a hearing was moot.
On September 23, 2011, [Appellant] through attorney Elbert, filed a "[p]reliminary [p]etition [u]nder the PCRA." He also filed an emergency request for bail, which the [trial] court denied without a hearing. On December 13, 2011, [Appellant], through attorney Elbert, filed an [a]mended [p]etition [u]nder the [PCRA], raising the following three issues:
1. Trial counsel was ineffective for failing to receive a list of character witnesses and present [Appellant's] good character;
2. Trial counsel was ineffective for not preparing [Appellant] to testify and advising him to waive his right to testify; and
3. Trial counsel was ineffective for failing to have a pre-trial colloquy to confirm [Appellant's] choice to proceed by way of bench trial.
[The PCRA court] held hearing on the [a]mended PCRA [p]etition on January 27, 2012 and March 2, 2012. [Appellant] testified and presented testimony from four purported character witnesses and trial counsel.
On May 17, 2012, the [PCRA] court issued an [o]rder denying the [a]mended PCRA [p]etition. [Appellant] filed a counseled [n]otice of [a]ppeal on June 15, 2012. On June 25, 2012, [the PCRA court] issued an [o]rder directing [Appellant] to file and serve a [c]oncise [s]tatement of [i]ssues [c]omplained of on [a]ppeal within 21 days in conformance with Pennsylvania Rule of Appellate Procedure 1925(b). On July 13, 2012, [Appellant], through counsel, filed a [p]etition [s]eeking [p]ermission to [f]ile [n]otice of [a]ppeal [n]unc [p]ro [t]unc. The [p]etition was based upon counsel's belief that he had not timey perfected appeal.
On August 2, 2012, [Appellant], through counsel, filed [m]otion for [e]nlargement of [t]ime to [f]ile a 1925(b) [statement]. The [m]otion acknowledged counsel's mistake regarding the filing of the appeal and asked permission to file a [c]oncise [s]tatement outside of the time prescribed in the [PCRA] court's [o]rder of June 25, 2012. On August 6, 2012, [Appellant], through counsel, filed and served a [c]oncise [s]tatement. On August 7, 2012, [the PCRA] court issued an [o]rder granting the [m]otion for [e]nlargement of [t]ime and accepted the [c]oncise [s]tatement filed on August 6, 2012.
PCRA Court Opinion, 8/14/2012, at 1-4 (footnotes in original, citations to the record omitted). On August 14, 2012, the PCRA court issued a Rule 1925(a) opinion. This appeal followed.
Appellant presents three issues on appeal:
Did the PCRA court err in denying Appellant PCRA relief as a result of trial counsel's failure to conduct any investigation and properly present evidence of Appellant's good character to the trial court?
Did the PCRA court err in denying Appellant PCRA relief as a result of trial counsel's ineffective instruction urging Appellant to waive his right to testify?
Did the PCRA court err in denying Appellant PCRA relief as a result of trial counsel['s] and the lower court's failure to advise Appellant of his right to a jury trial prior to the start of the bench trial?
Appellant's Brief at 3.
Our standard of review of a PCRA court's denial of petition for relief is well-settled. We review an order of the PCRA court to determine whether the record supports the findings of the PCRA court and whether its rulings are free from legal error. Commonwealth v. Fiore, 780 A.2d 704, 710 (Pa. Super. 2001), appeal dismissed, 813 A.2d 1080 (Pa. 2003). To be eligible for PCRA relief, a petitioner must plead and prove, by a preponderance of the evidence, that his conviction or sentence resulted from one or more of the reasons set forth in 42 Pa.C.S.A. § 9543(a)(2). In this case, Appellant alleges that his conviction and sentence resulted from ineffective assistance of counsel, as set forth at 42 Pa.C.S.A. § 9543(a)(2)(ii).
"In order to obtain relief under the PCRA premised upon a claim that counsel was ineffective, a petitioner must establish beyond a preponderance of the evidence that counsel's ineffectiveness 'so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place.'" Commonwealth v. Payne, 794 A.2d 902, 905 (Pa. Super. 2002), quoting 42 Pa.C.S.A. § 9543(a)(2)(ii). When considering such a claim, courts presume that counsel was effective, and place upon the appellant the burden of proving otherwise. Id. at 906. "Counsel cannot be found ineffective for failure to assert a baseless claim." Id.
To succeed on a claim that counsel was ineffective, Appellant must demonstrate that: (1) the claim is of arguable merit; (2) counsel had no reasonable strategic basis for his or her action or inaction; and (3) counsel's ineffectiveness prejudiced him. Commonwealth v. Allen, 833 A.2d 800, 802 (Pa. Super. 2003).
[t]o demonstrate prejudice, appellant must show there is a reasonable probability that, but for counsel's error, the outcome of the proceeding would have been different. When it is clear the party asserting an ineffectiveness claim has failed to meet the prejudice prong of the ineffectiveness test, the claim may be dismissed on that basis alone, without a determination of whether the first two prongs have been met. Failure to meet any prong of ...