J-S39004-15



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

LAMONT SAUNDERS,

                            Appellant               No. 2268 EDA 2013


                   Appeal from the PCRA Order July 29, 2013
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0700051-2003



BEFORE: BOWES, OTT AND MUSMANNO, JJ.

MEMORANDUM BY BOWES, J.:                        FILED DECEMBER 01, 2015

       Lamont Saunders appeals from the July 29, 2013 order denying him

PCRA relief.1 We affirm.

       On March 11, 2005, Appellant, together with his co-defendant Dallas

Saunders, was convicted at a jury trial of second-degree murder, robbery,

conspiracy to commit robbery, and possession of an instrument of crime for

his role in the November 27, 2002 shooting death of Douglas J. Comstock.

The facts underlying these convictions are as follows.      On the night of

November 26, 2002, Mr. Comstock and his friend, Brian Patrick Kieffer,

____________________________________________


1
  Appellant originally filed a pro se brief. Counsel thereafter filed an
appearance and asked for several extensions of time to file a brief.
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drove from New Jersey to Philadelphia in search of cocaine or heroin. They

viewed Dallas Saunders and Appellant standing on the corner of Mutter

Street and Indiana Street and decided to purchase drugs from them.           Mr.

Kieffer identified Appellant at trial.

      Mr. Comstock exited his car, spoke with Appellant, and went into an

alley with Appellant and Dallas.         Mr. Kieffer, who was waiting in the car,

heard a gunshot and observed two men fleeing the alley.            Angel Alvarez,

was on Mutter Street, heard an argument and then shots emanating from an

alley, and saw two males running from the alley.          Mr. Alvarez obtained a

flashlight and found Mr. Comstock. Mr. Kieffer arrived on the scene, and Mr.

Alvarez told him that Mr. Comstock was dead and that he should flee. Mr.

Kieffer returned to his car and found a police officer.

      At approximately 12:30 a.m. on November 27, 2002, Philadelphia

police responded to a broadcast about the shooting.          They discovered Mr.

Comstock with a gunshot wound to the back of his head. On December 10,

2002, Jose Toro told a Philadelphia detective that a couple of days after the

shooting, he spoke with Appellant and Dallas.         Appellant admitted to Toro

that he shot Comstock and stole his money. On January 9, 2003, Toro gave

police a written statement about Appellant’s confession, and Toro executed

it.

      On March 11, 2005, Appellant was sentenced to life imprisonment, and

we affirmed on direct appeal. Commonwealth v. Saunders, 909 A.2d 887

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(Pa.Super. August 31, 2006). Allowance of appeal was denied on February

22, 2007.     Commonwealth v. Saunders, 817 A.2d 314 (Pa. 2007).

Appellant filed a timely PCRA petition on October 15, 2007, and counsel,

John P. Cotter, Esquire, was appointed.    Counsel filed an amended PCRA

petition on May 28, 2009.     The PCRA court served notice of its intent to

dismiss the petition without a hearing, but Appellant objected and asked to

file an amended petition.   On January 26, 2011, Mr. Cotter filed a second

amended PCRA petition. On September 16, 2011, Appellant filed a pro se

supplemental PCRA petition.

     Mr. Cotter was permitted to withdraw, and J. Matthew Wolfe was

appointed as counsel. Mr. Wolfe filed a third amended PCRA petition, and

the Commonwealth was provided with an opportunity to respond to it. The

PCRA hearing was thereafter continued several times, with Commonwealth

ultimately filing an additional response to the third amended PCRA petition.

On June 12, 2013, Mr. Wolfe filed a petition to withdraw and no-merit letter

pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and

Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc).

     On June 19, 2013, the PCRA court issued notice of its intent to dismiss

the PCRA petition without a hearing, and, on July 29, 2013, dismissed the

petition and permitted counsel to withdraw.     Appellant filed the present,

timely pro se appeal. New counsel, Coley O. Reynolds, Esquire, entered his

appearance and presents this issue for our review.

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              I. Is Appellant, Lamont Saunders, entitled to an
              evidentiary hearing to determine the validity of the
              evidence presented by the Commonwealth to the
              PCRA Court that led to the dismissal of his PCRA
              petition when his PCRA counsel was ineffective by
              failing to request that such an evidentiary hearing
              take place?

Appellant’s brief at 4.2

       Initially, we outline the applicable principles regarding our review of

the PCRA court’s determinations herein:

            An appellate court reviews the PCRA court's findings of fact to
       determine whether they are supported by the record, and reviews
       its conclusions of law to determine whether they are free from
       legal error. The scope of review is limited to the findings of the
       PCRA court and the evidence of record, viewed in the light most
       favorable to the prevailing party at the trial level.

Commonwealth v. Freeland, 106 A.3d 768, 775 (Pa.Super. 2014)

(citation omitted).

       In this appeal, Appellant charges PCRA counsel, Mr. Wolfe, with

ineffectiveness.     Specifically, Appellant avers that Mr. Wolfe should have

requested an evidentiary hearing instead of filing a no-merit letter based on

the following set of events.        Mr. Comstock was shot sometime during the

night of November 26, 2002, or the morning of November 27, 2002. Jose

Toro told police that, a few days after the incident, Appellant boasted that he

was the shooter.
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2
  We note that this issue was preserved in Appellant’s response to the PCRA
court’s notice of its intent to dismiss the PCRA petition without a hearing.



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       In his third amended PCRA petition, Appellant averred that Toro was

incarcerated when Appellant purportedly spoke with that witness and that

trial counsel was ineffective for failing to investigate Toro’s prison record to

impeach his testimony.            The Commonwealth responded to the third

amended      PCRA     petition    with   Toro’s    incarceration   record   from   the

Philadelphia County prison system.             That document established that Toro

was in jail on September 13, 2002, released on bail paid on September 19,

2002, and was not incarcerated again in Philadelphia County until December

11, 2002.

       Appellant suggests on appeal that Toro was arrested again on

November 24, 2002,3 and that PCRA counsel was ineffective for failing to

investigate whether he remained in jail thereafter.            Appellant avers that

PCRA counsel “was ineffective in his representation of Appellant during his

PCRA proceedings for failing to request an evidentiary hearing to determine

the validity of the Commonwealth’s incarceration record of Jose Toro.”

Appellant’s brief at 9. He suggests that there is a genuine issue of material

fact as to whether Toro was in jail two or three days after the November 27,



____________________________________________


3
  The online docket sheets from the Criminal Division of the Court of
Common Pleas of Philadelphia County indicate that Toro was arrested on
that day for theft from a motor vehicle, unauthorized use of a motor vehicle,
and receiving stolen property.



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2002 shooting, which was when Appellant made his inculpatory remark to

Toro.

        We evaluate Appellant’s position that PCRA counsel was ineffective

pursuant to the following precepts.         “To plead and prove ineffective

assistance of counsel a petitioner must establish: (1) that the underlying

issue has arguable merit; (2) counsel's actions lacked an objective

reasonable basis; and (3) actual prejudice resulted from counsel's act or

failure to act.” Commonwealth v. Stewart, 84 A.3d 701, 706 (Pa.Super.

2013) (en banc).         The failure to meet any of these aspects of the

ineffectiveness test results in the claim failing.   Id.   A claim has arguable

merit where the factual predicate is accurate and “could establish cause for

relief.”   Id. at 707.    A determination as to whether the facts asserted

present a claim of arguable merit is a legal one. Id. It is presumed that

counsel renders effective representation.

        The fatal flaw in Appellant’s position is that PCRA counsel did

investigate the matter and reported about it in his no-merit letter. Mr. Wolfe

knew that Toro was arrested on November 24, 2002. He went to investigate

whether Toro made bail in that case. Mr. Wolfe reported:

              The District Attorney initially produced an extract of Mr.
        Toro’s incarceration record in Philadelphia, which seemed to
        indicate that he was released on bail on September 13, 2002,
        and not jailed again until December 11, 2002. This did not make
        sense, since we knew that Mr. Toro had been arrested and
        incarcerated in November of 2002. The District Attorney next
        produced another document that likewise was not particularly

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     comprehensible.      During this period of time, [Appellant]
     indicated that a friend of his had spoken with a Mr. Daquilant in
     the Criminal Justice Center who had said that Mr. Toro had not
     made bail after his November arrest.

            I went to the file room at the Criminal Justice Center to
     see if I could find Mr. Daquilant, whom I could not find in the
     city’s online directory of all city employees. I was told that no
     one by that name worked there. I did ask if Mr. Toro had made
     bail. They said that their computer did not say one-way or the
     other. I reviewed the online docket myself and could not find
     any information. I then reviewed the court’s fil[ing] for Mr. Toro
     and the only document I found was the subpoena issued when
     he made bail and was given a subpoena for court. That seemed
     to be an indication that he made bail. I was directed to the bail
     unit, which looked up their records and found that Mr. Toro had
     made bail on November 24, 2002. I was given a printout to that
     effect.

No-merit Letter of J. Matthew Wolf, 6/10/13, at (unnumbered page) 4.

     Thus, Mr. Wolf ascertained both from Toro’s file and from the bail unit

that Toro made bail the same day as his arrest, November 24, 2002. Thus,

there is no genuine issue of material fact that the records produced by the

Commonwealth reporting that Toro was not incarcerated between November

24, 2002 and December 11, 2002 were inaccurate. Appellant confessed to

the killing a few days after the November 27, 2002 shooting.

     A PCRA petitioner is not automatically entitled to an evidentiary

hearing:

            The right to an evidentiary hearing on a post-conviction
     petition is not absolute. A PCRA court may decline to hold a
     hearing if the petitioner's claim is patently frivolous and is
     without a trace of support in either the record or from other
     evidence. A reviewing court on appeal must examine each of
     the issues raised in the PCRA petition in light of the record in

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      order to determine whether the PCRA court erred in concluding
      that there were no genuine issues of material fact and denying
      relief without an evidentiary hearing.

Commonwealth v. Payne, 794 A.2d 902, 906 (Pa.Super. 2002) (citation

omitted).

      Since there is no genuine issue of material fact that Toro was not in

jail when Appellant confessed to him, Appellant is not entitled to PCRA relief

based on his present claim.     Thus, PCRA counsel was not ineffective for

failing to request one.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/1/2015




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