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HomeMy WebLinkAbout97-0084 criminal]. S04030/01 COMMONWEALTH OF PENNSYLVANIA, · IN THE SUPERIOR COURT OF Appellee · PENNSYLVANIA V, ' TERRY L. FAIRCHILD, · Appellant · No. 958 MDA 2000 Appeal from the Order in the Court of Common Pleas of Cumberland County, Criminal Division, No. 97-0084 BEFORE: MUSMANNO, ORIE MELVIN and TAMILIA, ]]. MEMORANDUM' F: I !. E~ D FEB - Terry Fairchild appeals from the March 30, 2000 Order denying his petition filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546· Following a September 1997 jury trial, appellant was found guilty of homicide by vehicle,~ homicide by vehicle while driving under the influence2 and driving under the influence.3 In addition, the trial court found appellant guilty of reckless driving,4 a summary offense. On October 21, 1997, appellant was sentenced to an aggregate three and one half (31/2) years plus two (2) days to nine (9) years' imprisonment· No direct appeal was filed. 175 Pa.C.S.A. § 3732. 2 Id., § 3735. 3 Id., § 3731. 4 Id., § 3736. 3. S04030/01 On May 29, 1998, appellant filed his PCRA petition. Thereafter, PCRA counsel was appointed and hearings were conducted. The PCRA court denied the petition on IVlarch 30, 2000 and this appeal followed. We review the denial of appellant's motion to see whether the PCRA court's findings are supported by the record and are otherwise free of legal error. Commonwealth v. Neal, 713 A.2d 657 (Pa. Super. 1998). "'The findings of the post-conviction court will not be disturbed unless they have no support in the record.'" Zd., quoting Commonwealth v. Schultz, 707 A.2d 513, 516 (Pa. Super. 1997). Appellant raises the following questions for our review. I. Did the court err when it denied [appellant's] claim that his counsel acted ineffectively by failing to request a jury instruction regarding the Commonwealth's failure to preserve the vehicle involved in the incident, underlying the homicide by vehicle while DU! charge when the defense was that [appellant] was not the operator of the vehicle? II. Did the court err when it denied [appellant's] claim that his counsel acted ineffectively by failing to file a direct appeal on [appellant's] behalf? (Appellant's brief at 4.) The standard under which we assess an ineffective assistance of counsel claim is well established: First, a defendant must show his claim to be of arguable merit. In the event this threshold requirement is satisfied, the defendant must next establish that defense counsel had no reasonable basis for -2- ]. S04030/01 undertaking or failing to undertake the act or omission in question. Finally, the defendant must show that there is a reasonable probability that but for the act or omission in question the outcome of the proceeding would have been different. In other words, that the defendant suffered actual prejudice from the act or omission. Commonwealth v. Baez, 759 A.2d 936, 937 (Pa. Super. 2000), quoting Commonwealth v. Ellis, 541 Pa. 285, 293, 662 A.2d 1043, 1047 (1995). "Counsel is presumed effective, and the appellant bears the burden of proving otherwise." Zd., citing Commonwealth v. Tigne¥, 730 A.2d 968, 969 (Pa. Super. 1999). Appellant complains that trial counsel was ineffective for failing to request a jury instruction with respect to the Commonwealth's failure to preserve the vehicle involved in the accident. Appellant maintains he was not the operator of the vehicle and argues this instruction was appropriate to demonstrate that police did not attempt to get fingerprints from the vehicle to identity the driver. Appellant cites Pia v. Perrotti, 718 A.2d 321 (Pa. Super. 1998), and states that his "theory of the case was that he was not the driver; thus any information which would tend to establish that he had not been the driver would have been useful." Appellant's brief at 7. The evidence presented at trial clearly established that appellant was the driver of the vehicle. Two witnesses, independent of each other, who came upon the accident immediately after it occurred, observed appellant seated in the driver's seat of the vehicle with his feet at the operating - 3 ' .1. S04030/01 pedals. Likewise, police arriving at the scene observed appellant in this same position. Moreover, as the PCRA court stated in its Opinion, the evidence established that the vehicle was towed from the accident scene to a salvage yard and then came under the control of appellant's mother (owner of the vehicle) and her insurance carrier. See Trial Court Opinion, Bayley, ]., 3/3000, at 8. Accordingly, we find appellant's reliance upon Perrotti, supra, is misplaced,s As appellant's argument that he was not the driver of the vehicle was refuted by strong and competent evidence at trial, we find trial counsel had no meritorious basis for requesting the instruction regarding the investigation of the vehicle. "[C]ounsel cannot be considered ineffective for failing to raise a claim that is without merit." Commonwealth v. Wynn, 760 A.2d 40, 50 (Pa. Super. 2000), quoting Commonwealth v. Carpenter, 555 Pa. 434, 449, 725 A.2d 154, 161 (1999). Accordingly, appellant's first challenge fails. Next, appellant argues trial counsel was ineffective for failing to file a direct appeal. Upon review of the record, it is clear this challenge is without merit. At the PCRA evidentiary hearing, appellant testified that he discussed potential grounds for appeal with trial counsel but "never asked [trial counsel] to file a direct appeal." (N.T., 10/5/99 at :~1.) Moreover, appellant does not set forth any basis for an appeal nor does review of the 5 In Pia v. Perrotti, 718 A.2d 321 (Pa. Super. 1998), this Court discussed - 4 ' .1. S04030/01 record indicate what challenges appellant might have raised on direct appeal. Upon review of appellant's argument, it appears appellant's basis for this ineffective assistance of claim is merely the fact that trial counsel failed to take steps to determine whether appellant wanted to file a direct appeal. In order to establish a claim of ineffective assistance of counsel, a petitioner must demonstrate that counsel's action or inaction resulted in prejudice to the petitioner. Commonwealth v. Baez, supra. As appellant has failed to demonstrate any prejudice due to the lack of a direct appeal, he is not entitled to relief. Order affirmed. -- FEB- Date: issues of spoliation which are wholly inapplicable to the facts of this case. - 5 '