J-S75029-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    KEVIN WILSON                               :
                                               :
                       Appellant               :   No. 2197 EDA 2017

                   Appeal from the PCRA Order June 22, 2017
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                       No(s): CP-51-CR-0012880-2010


BEFORE: PANELLA, J., NICHOLS, J., and MUSMANNO, J.

MEMORANDUM BY NICHOLS, J.:                                 FILED MAY 29, 2019

        Appellant Kevin Wilson appeals from the order dismissing his timely first

Post Conviction Relief Act1 (PCRA) petition as meritless. Appellant argues that

the PCRA court erred in dismissing his claims that trial counsel was ineffective

for failing to file a post-sentence motion challenging the weight of the

evidence.     Appellant also asserts that trial counsel was ineffective during

cross-examination of witnesses. We affirm.

        This Court previously adopted the following summary of the facts

underlying Appellant’s convictions:

        At 12:30 a.m. on July 12, 2008, the Complainant (Terrance
        Savage) sat in the driver’s side seat of his motor vehicle and
        conversed with a friend through the open front passenger window.
        After a short conversation, the Complainant’s friend left.
        Approximately ten seconds later, Appellant approached the front
        driver’s side window, leaned in the open window, and held a black
____________________________________________


1   42 Pa.C.S. §§ 9541-9456.
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     gun against the Complainant’s abdomen. Appellant told the
     Complainant to “give everything up.” With his left hand, Appellant
     took the Complainant’s chain, watch, and one thousand dollars.
     Appellant then told the Complainant his name. The Complainant
     testified that Appellant said “his name was Scar Face Kev and if I
     wanted any trouble, ask about him.” After Appellant gave his
     name, he shot the Complainant in the stomach, and walked away.

     While the robbery was occurring, Kendall McGill was
     approximately 40 feet away playing dice with other males. McGill
     saw Appellant at the Complainant’s car. Approximately a minute
     later, McGill heard a gunshot and saw Appellant quickly walk away
     from Complainant’s car as he put a black gun in his left waistband
     with his right hand. Appellant then walked past McGill and around
     the corner.

     After Appellant walked around the corner, the Complainant started
     driving to Temple University Hospital.        While driving, the
     Complainant called his mother and told her that he had been shot.
     When the Complainant arrived at the emergency room, doctors
     performed surgery.

     After approximately four days, the Complainant left the hospital
     without permission because he feared for his safety. After leaving
     the hospital, the Complainant went home.               However, the
     Complainant still did not tell the police that Appellant had shot him
     because he feared for his life and did not want to be labeled a rat.
     However, while the Complainant was home recovering, he
     informed his mother and friends that Appellant had shot him.
     Three months later, the Complainant finally told the police who
     had shot him.

     In March 2010, detectives attempted to arrest Appellant but they
     could not locate him. On April 9, 2010, the Commonwealth
     learned that Appellant was in custody at State Correctional
     Institution (SCI) Greene. In April 2010, Officer Timothy Simpson
     of the East Division Warrant Unit faxed a writ to SCI Greene to
     bring Appellant to court. However, Appellant was not brought
     down. Although the Commonwealth faxed additional requests on
     May 4, 2010, May 21, 2010, and June 2, 2010, Appellant was still
     not brought down.          Finally, the Commonwealth paid
     approximately $2,000.00 to extradite Appellant to Philadelphia.
     On June 8, 2010, Appellant was extradited and arrested.




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Commonwealth v. Wilson, 59 EDA 2013, at 1-2 (Pa. Super. filed Sept. 22,

2014) (unpublished mem.) (quoting Trial Ct. Op., 9/25/13, at 2-4) (brackets

omitted).

       Appellant was charged with attempted murder, aggravated assault,

robbery, possession of firearms prohibited, and related offenses,2 and

proceeded to a jury trial. At trial, the Commonwealth, in relevant part, called

Complainant3 and McGill, whose testimony was summarized above as part of

our decision in Appellant’s direct appeal.

       We add that during the direct examinations of Complainant and McGill,

the Commonwealth elicited testimony that Complainant and McGill first gave

formal statements implicating Appellant after being charged with federal

crimes and as part of plea negotiations with federal authorities.          The

Commonwealth also introduced McGill’s first statement to federal authorities.

According to McGill’s first statement, he did not see Appellant with a gun, but

saw Appellant place an object into his waistband that “had to be a gun.” N.T.,


____________________________________________


218 Pa.C.S. §§ 901(a), 2502; 18 Pa.C.S. §§ 2702(a), 3701(a)(ii), 6105(a)(1),
and 907(a), respectively.

3 Furthermore, while Complainant was testifying, the trial court excused the
jury for a sidebar conference, but Complainant remained on the stand and
Appellant remained in court. During the conference, Appellant allegedly
looked at Complainant, mouthed the words “I’m going to kill you,” and made
a gesture as if he was slashing his neck three times. N.T., 8/23/12, at 109.
The Commonwealth subsequently called a deputy sheriff who was standing
behind Appellant at that time to testify at trial regarding the gesture made by
Appellant. The trial court also issued a consciousness of guilt charge.


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8/24/12, at 74.   McGill, however, gave a subsequent statement to federal

authorities indicating that Appellant had a black gun. Id. at 76-77.

      During cross-examination of Complainant and McGill, Appellant’s trial

counsel noted that Complainant and McGill did not implicate Appellant

immediately after the shooting. Trial counsel’s examination emphasized that

the federal charges were brought against Complainant and McGill after the

shooting. Trial counsel further highlighted that Complainant and McGill were

testifying against Appellant under cooperation agreements with federal

authorities before being sentenced for their federal charges. In so doing, trial

counsel confronted Complainant and McGill with their possible sentencing

exposures for the federal offenses and indicated that they could receive

downward departures from the sentencing guidelines based on their

cooperation.   Trial counsel also noted that Complainant and McGill were

cellmates while in federal custody.

      Trial counsel did not cross-examine McGill about the discrepancy

between his first and subsequent statements regarding the object Appellant

placed in his waistband after the shooting. However, trial counsel did confront

McGill with another discrepancy between his first and subsequent statements,

noting that McGill initially stated that he heard a “bang” that sounded like

gunshots, but later indicated that he heard gunshots. Id. at 115-16.

      After Appellant’s cross-examination of Complainant, the Commonwealth

called Complainant’s mother to the stand. Complainant’s mother testified that




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a couple of weeks after the shooting, she overheard Complainant on the phone

stating that the shooter identified himself as “Scar Face Kev.”4

       At the conclusion of trial, the jury found Appellant guilty of all charges.5

The trial court sentenced Appellant to an aggregate term of twenty to forty

years’ imprisonment and a consecutive fifteen years’ probation. Trial counsel

did not file post-sentence motions on Appellant’s behalf, but took a direct

appeal to this Court.

       On September 22, 2014, this Court affirmed the judgment of sentence.

See Wilson, 59 EDA 2013, at 1. Appellant did not file a petition for allowance

of appeal in the Pennsylvania Supreme Court.

       Appellant timely filed a pro se PCRA petition that was postmarked on

January 21, 2015. The PCRA court appointed present counsel,6 who filed an

amended petition and memorandum of law on August 3, 2016.                Appellant

claimed trial counsel was ineffective for failing to (1) preserve a weight of the

evidence challenge in the trial court and (2) cross-examine Complainant and

McGill with evidence that would have impeached their testimony and

demonstrated their bias.
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4 As discussed in Appellant’s direct appeal, Complainant’s mother’s testimony
was admitted as a prior consistent statement, and the trial court issued a
cautionary instruction directing the jury not to consider the statement for the
truth of the matter asserted. Wilson, 59 EDA 2013, at 13-21.

5The jury specifically found that the attempt at murder resulted in serious
bodily injury to Complainant.

6 The Honorable Glynnis Hill presided over the trial, sentencing, and the
instant PCRA proceedings.

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      Alternatively, Appellant claimed that trial counsel was ineffective for

emphasizing that Complainant testified against him to obtain reduced federal

prison sentences. According to Appellant, such testimony opened the door for

the Commonwealth to admit testimony about Complainant’s prior consistent

statement identifying Appellant as the shooter.

      Appellant also asserted that trial counsel should have obtained

Complainant’s phone records to show Complainant was “selling drugs and

committing other crimes while in prison.”     Mem. of Law, 8/3/16, at 13.

Appellant   suggested   that   the   Commonwealth’s     failure   to   disclose

Complainant’s phone records constituted a violation of Brady v. Maryland,

373 U.S. 83 (1963).

      On December 13, 2016, the Commonwealth filed a motion to dismiss

Appellant’s PCRA petition asserting that Appellant’s claims failed to state a

basis for relief. On May 5, 2017, the PCRA court issued a Pa.R.A.P. 907 notice

of its intent to dismiss Appellant’s petition. Appellant did not respond, and

the court dismissed Appellant’s petition on June 22, 2017.

      Appellant filed a timely notice of appeal and complied with the PCRA

court’s order to file and serve a Pa.R.A.P. 1925(b) statement. The court filed

a responsive opinion concluding that Appellant failed to demonstrate prejudice

from trial counsel’s failure to seek a new trial based on the weight of the

evidence.   The court further determined that the record did not support

Appellant’s claims that trial counsel was ineffective during cross-examination

of the Commonwealth’s witnesses and that Appellant failed to establish his

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alternative    claims    challenging    the    adequacy   of   trial   counsel’s   cross

examination.

       Appellant now presents the following issues for review:

       [1.] Whether the [PCRA c]ourt erred in denying the Appellant’s
       PCRA petition without an evidentiary hearing on the issues raised
       in the amended PCRA petition regarding Trial Counsel’s
       ineffectiveness.

       [2.] Whether the [PCRA c]ourt erred in not granting relief on the
       PCRA petition alleging Counsel was ineffective.

Appellant’s Brief at 8.

       Appellant presents three arguments in his brief: (1) the PCRA court

erred in finding that there was no basis for a new trial based on the weight of

the evidence, see id. at 18-20; (2) the PCRA court erred in finding that trial

counsel conducted adequate cross-examination of the Commonwealth’s

witnesses, see id. at 20-22; and (3) the PCRA court erred in declining to hold

an evidentiary hearing, see id. at 15-16.7 Before addressing these arguments

in detail, we set forth the general principles governing our review.

       This Court’s review from the dismissal of a PCRA petition “is limited to

examining whether the PCRA court’s determination is supported by the

evidence of record and whether it is free of legal error.” Commonwealth v.

Ousley, 21 A.3d 1238, 1242 (Pa. Super. 2011) (citation omitted).




____________________________________________


7We address Appellant’s arguments in a different order than presented in his
brief.

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      To establish a claim of ineffective assistance of counsel, a PCRA

petitioner “must show, by a preponderance of the evidence, ineffective

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. Turetsky,

925 A.2d 876, 880 (Pa. Super. 2007) (citation omitted). The burden is on the

petitioner to prove all three of the following prongs: “(1) the underlying claim

is of arguable merit; (2) that counsel had no reasonable strategic basis for his

or her action or inaction; and (3) but for the errors and omissions of counsel,

there is a reasonable probability that the outcome of the proceedings would

have been different.” Id. (citation omitted). “A failure to satisfy any prong

of the ineffectiveness test requires rejection of the claim of ineffectiveness.”

Commonwealth v. Daniels, 963 A.2d 409, 419 (Pa. 2009) (citation

omitted).

      The Pennsylvania Supreme Court has stated that “boilerplate allegations

and bald assertions of no reasonable basis and/or ensuing prejudice cannot

satisfy a petitioner’s burden to prove that counsel was ineffective.”

Commonwealth v. Paddy, 15 A.3d 431, 443 (Pa. 2011).                Moreover, a

petitioner cannot rely on mere conjecture and speculation to establish a claim

of ineffectiveness. See Commonwealth v. Spotz, 896 A.2d 1191, 1216 (Pa.

2006)

      A PCRA petitioner is not automatically entitled to an evidentiary hearing.

See Commonwealth v. Smith, 121 A.3d 1049, 1052 (Pa. Super. 2015).

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“[T]he PCRA court can decline to hold a hearing if there is no genuine issue

concerning any material fact and the petitioner is not entitled to post-

conviction collateral relief, and no purpose would be served by any further

proceedings.”   Id. (citation and quotation marks omitted)      On appeal, we

“examine each of the issues raised in the PCRA petition in light of the record

in order to determine whether the PCRA court erred in concluding that there

were no genuine issues of material fact and in denying relief without an

evidentiary hearing.” Id. (citation omitted).

      Appellant first argues that the PCRA court erred in dismissing his claim

that trial counsel should have sought a new trial based on the weight of the

evidence. Appellant’s Brief at 18. He notes:

      The Commonwealth’s case depended heavily upon the testimony
      of [Complainant] and Kendall McGill. There was no physical
      evidence that tied Appellant to the offense. [Complainant] made
      a deal with the government so that he could get a lighter sentence.
      He had numerous arrests. And he was subsequently not a credible
      witness. Likewise, . . . McGill’s testimony regarding the existence
      of a handgun was inconsistent at trial as well. This witness’s first
      statement declared that he did not see the Appellant with a gun
      but saw him put an object that “had to be a gun” to his waist.
      Then, inconsistent with this, the second statement declared that
      he saw a portion of the gun.

      Due to the lack of credibility of the Commonwealth witnesses who
      were all trying to make deals to save themselves, a fact that prior
      counsel failed to explore adequately on cross-examination, the
      evidence preponderates sufficiently heavily against Appellant’s
      conviction and suggests that a serious miscarriage of justice may
      have occurred. There is little evidence in the present case
      supporting the verdict reached by the jury.

Id. at 19.


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      It is well settled that a challenge to the weight of the evidence must be

preserved in the trial court.   See Pa.R.Crim.P. 607.        In the context of an

ineffective assistance of counsel claim, the failure to file a post-sentence

motion   does   not   give   rise   to    a   presumption   of   prejudice.   See

Commonwealth v. Reaves, 923 A.2d 1119, 1131-32 (Pa. 2007). Therefore,

a petitioner must establish that there is a reasonable probability that a motion

would have led to a different outcome. See Reaves, 923 A.2d at 1131.

      The Pennsylvania Supreme Court has described a motion for a new trial

based on a challenge to the weight of the evidence as follows:

      A motion for a new trial based on a claim that the verdict is against
      the weight of the evidence is addressed to the discretion of the
      trial court. A new trial should not be granted because of a mere
      conflict in the testimony or because the judge on the same facts
      would have arrived at a different conclusion. Rather, “the role of
      the trial judge is to determine that ‘notwithstanding all the facts,
      certain facts are so clearly of greater weight that to ignore them
      or to give them equal weight with all the facts is to deny justice.’”
      It has often been stated that “a new trial should be awarded when
      the jury’s verdict is so contrary to the evidence as to shock one's
      sense of justice and the award of a new trial is imperative so that
      right may be given another opportunity to prevail.”

      An appellate court’s standard of review when presented with a
      weight of the evidence claim is distinct from the standard of review
      applied by the trial court:

         Appellate review of a weight claim is a review of the
         exercise of discretion, not of the underlying question
         of whether the verdict is against the weight of the
         evidence. Because the trial judge has had the opportunity
         to hear and see the evidence presented, an appellate court
         will give the gravest consideration to the findings and
         reasons advanced by the trial judge when reviewing a trial
         court’s determination that the verdict is against the weight
         of the evidence. One of the least assailable reasons for


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         granting or denying a new trial is the lower court’s
         conviction that the verdict was or was not against the weight
         of the evidence and that a new trial should be granted in the
         interest of justice.

Commonwealth v. Clay, 64 A.3d 1049, 1054-55 (Pa. 2013) (citations

omitted) emphasis in original).

      Instantly, the PCRA court determined that there was no reasonable

probability that Appellant would have been entitled to a new trial if trial

counsel challenged the weight of the evidence. As noted by the judge, who

presided at both the trial and the instant PCRA proceeding, the verdict did not

shock the conscience. PCRA Ct. Op., 1/16/18, at 3. Both Complainant and

McGill positively identified Appellant as the shooter. Furthermore, Appellant

presented ample testimony attempting to impeach the credibility of

Complainant and McGill.

      Based on the foregoing, we conclude that the PCRA court properly

concluded that Appellant failed to establish prejudice.       The impeachment

evidence against Complainant and McGill was not of such greater weight that

to ignore it or to give it equal weight constituted a denial of justice. See Clay,

64 A.3d at 1054-55. Therefore, even if trial counsel had properly preserved

a challenge to the weight of the evidence in the direct appeal, we discern no

basis to conclude that Appellant would have been entitled to a new trial. See

Reaves, 923 A.2d at 1131-32. Accordingly, Appellant’s first argument fails.

See Ousley, 21 A.3d at 1242.




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      Appellant next argues that the PCRA court erred in concluding that trial

counsel’s cross-examination of Complainant and McGill was inadequate.

Appellant presents several contentions in support of this argument.

      First, Appellant contends that trial counsel “did not thoroughly cross

examine [McGill or Complainant] to show they were cooperating to get a

reduced sentence on an unrelated charge” or failed to reveal their biases.

However, as noted by the PCRA court, the record contradicts this contention.

      Instantly, trial counsel repeatedly emphasized that Complainant and

McGill first gave formal statements implicating Appellant after being charged

with federal offenses. See N.T., 8/23/12, at 122, 136; N.T., 8/24/12, at 114.

Trial counsel highlighted the possible sentences that McGill and Complainant

faced on those charges, and the possibility that they could, and hope to,

receive a recommendation for a downward deviation for their cooperation.

See N.T., 8/23/12, at 70 (indicating that Complainant was facing a maximum

sentence of life), 76 (indicating that the federal authorities could file a motion

for a downward departure based on Complainant’s cooperation); N.T.,

8/24/12, at 97, 109, 119. Further, as noted by the PCRA court, trial counsel

attempted to show that Complainant and McGill had been promised favorable

treatment if they testified against Appellant, but they denied any promises of

leniency. See PCRA Ct. Op. at 6 (citing N.T., 8/23/12, at 133; N.T., 8/24/12

at 98).

      Therefore, Appellant’s contention that trial counsel failed to raise

Complainant’s    and   McGill’s   unrelated   federal   charges   during   cross-

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examination lacks arguable merit. Accordingly, we discern no error in the

PCRA court’s ruling. See Daniels, 963 A.2d at 419; Ousley, 21 A.3d at 1242.

      Second, Appellant asserts that trial counsel was ineffective for failing to

cross-examine McGill using his prior statements to federal authorities.

Appellant’s Brief at 20. Appellant emphasizes that McGill initially stated that

after the shooting, McGill saw Appellant place an object that had to be a gun

in his waistband.    Id.   Later, McGill told federal authorities that he saw

Appellant put a black gun into waistband. Id. Appellant concedes that this

discrepancy was raised by the Commonwealth during its direct examination of

McGill, but claims that trial counsel should have highlighted the discrepancy

during cross-examination. Id.

      Our review confirms that the Commonwealth raised this discrepancy

during direct examination. See N.T., 8/24/12, at 74-77. Trial counsel did not

question McGill about the fact that he initially told federal authorities that he

saw Appellant put an object in his waistband, and later described the object

as a black gun. See id. at 115-16. However, trial counsel cross-examined

McGill regarding a difference between his first and second statements to

federal authorities, noting that McGill initially told federal authorities that at

the time of the shooting, he heard a “bang.” See id. Trial counsel elicited

McGill’s testimony that the two statements were different. See id.

      Therefore, the jury was aware that McGill provided greater details in his

second statement to police. Although trial counsel did not specifically impeach

McGill regarding McGill’s statements about the object Appellant placed in his

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waistband, trial counsel emphasized the differences between McGill’s first and

second statements. Under the circumstances of this case, we discern no basis

to conclude that Appellant established prejudice as a result of trial counsel’s

failure to cross-examine McGill about his prior statements concerning the gun.

Accordingly, no relief is due. See Ousley, 21 A.3d at 1242.

      Third, Appellant contends that trial counsel was ineffective for cross-

examining Complainant about the federal plea agreement. Appellant’s Brief

at 21-22.     According to Appellant, this permitted the Commonwealth to

present Complainant’s mother to testify that Complainant made a prior

consistent statement identifying Appellant as a shooter.            Id.   Additionally,

Appellant suggests that trial counsel should have objected to Complainant’s

mother’s testimony, because Complainant stated that he never told his mother

who the shooter was. Id. at 21-22.

      At the outset, we note that this contention directly contradicts

Appellant’s   previous   claim   that    trial   counsel   failed   to    demonstrate

Complainant’s bias based on the federal charges. In any event, Appellant, as

petitioner, was required to plead that trial counsel lacked a reasonable basis

for his decision, and failed to do so. See Turetsky, 925 A.2d at 880

      More specifically, Appellant bears the burden of showing a substantially

greater possibility of success at trial if trial counsel did not cross-examine

Complainant about the federal charges to avoid the possible admission of a

prior consistent statement. Instantly, Appellant failed to plead or develop any

argument on appeal that trial counsel’s decision to impeach Complainant using

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the federal charges was unreasonable under the circumstances of this case.

Accordingly, we conclude that no relief is due based on Appellant’s boilerplate

contention.    See Paddy, 15 A.3d at 443.

       Fourth, Appellant contends that trial counsel was ineffective for failing

to object to Complainant’s mother’s testimony regarding Complainant’s prior

consistent statement. Appellant’s Brief at 21-22. Appellant asserts that trial

counsel should have objected because Complainant testified that he did not

tell his mother who shot him. Id.

       We note that this contention was undeveloped in Appellant’s amended

PCRA petition and on appeal.           See Paddy, 15 A.3d at 443.   On appeal,

Appellant does not refer to any point in the record indicating that Complainant

stated he did not tell his mother who shot him.         See Pa.R.A.P. 2119(c).

Moreover, Appellant fails to cite any case law to show that his proposed

objection concerned the admissibility, rather than the weight of the prior

consistent statement.8 Therefore, Appellant has waived consideration of this

claim. See Commonwealth v. Johnson, 985 A.2d 915, 925 (Pa. 2009).

       Fifth, Appellant contends that trial counsel should have cross-examined

Complainant using phone records to demonstrate that Complainant was “still

selling drugs and committing other crimes while in prison.” Appellant’s Brief
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8 We add that Complainant’s mother testified that she overheard Complainant
indicating that the shooter identified himself as “Scar Face Kev” during a
phone conversation with an unidentified third party. N.T., 8/24/12, at 20.
Sometime after overhearing this conversation, Complainant’s mother stated
that Complainant told her about the shooter, when she “questioned him
[about] who Scar Face Kev was.” Id. at 20.

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at 21. Alternatively, Appellant asserts that the Commonwealth violated Brady

by failing to disclose Complainant’s phone records. Id.

        Instantly, the PCRA court rejected this contention, noting that Appellant

failed to establish how such evidence would have been relevant. PCRA Ct. Op.

at 8.     The court also concluded that such evidence would have been

inadmissible character evidence. Id.

        Our review reveals that Appellant offered no corroboration for his

assertion that Complainant’s phone records would contain evidence that

Complainant was engaged in drug trafficking while in prison. Spotz, 896 A.2d

at 1216 (noting that mere conjecture and speculation that favorable evidence

existed did not meet a PCRA petitioner’s burden of proof).          Accordingly,

Appellant’s contention that the PCRA court erred in dismissing his contention

based on Complainant’s phone records fails. See id.

        In his final argument, Appellant asserts that the PCRA court erred in

dismissing his petition without a hearing. However, in light of our review of

Appellant’s substantive claims, we agree with the PCRA court that Appellant’s

petition did not raise genuine issues of fact as to his claims. Therefore, the

PCRA court did not abuse its discretion in declining to hold a hearing. Smith,

121 A.3d at 1052.

        Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/29/19




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