J. A26027/15


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA             :     IN THE SUPERIOR COURT OF
                                         :           PENNSYLVANIA
                   v.                    :
                                         :
KENNETH M. HARDY JR.,                    :          No. 703 MDA 2015
                                         :
                         Appellant       :


               Appeal from the PCRA Order, February 26, 2015,
                in the Court of Common Pleas of Mifflin County
               Criminal Division at No. CP-44-CR-0000453-2003


BEFORE: FORD ELLIOTT, P.J.E., WECHT AND PLATT,* JJ.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:              FILED DECEMBER 01, 2015

      Kenneth M. Hardy, Jr., appeals pro se from the February 26, 2015

order dismissing his first petition filed pursuant to the Post Conviction Relief

Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546.       Finding that appellant’s claims

lack merit, we affirm.

      The relevant facts of this case can be found in this court’s opinion in

response to appellant’s direct appeal. Commonwealth v. Hardy, 918 A.2d

766 (Pa.Super. 2007), appeal denied, 940 A.2d 362 (Pa. 2008):

                    Appellant, his infant son (Victim), Appellant’s
            girlfriend (who was not Victim’s mother), and the
            girlfriend’s own children slept at the same home on
            the night of February 21, 2003. Victim did not sleep
            well and, according to Appellant, cried and “fussed”
            all night.

                 The next morning, Appellant’s girlfriend
            departed their mutual residence, leaving Appellant


* Retired Senior Judge assigned to the Superior Court.
J. A26027/15


            and Victim as the only persons therein. When the
            girlfriend departed, Victim appeared to be unharmed.
            For roughly the next two hours, Victim was in
            Appellant’s exclusive custody and care. At the end
            of that time, Appellant took Victim to a hospital
            because it appeared that Victim was dying. Medical
            personnel determined that, along with rib fractures,
            Victim had a swollen, bleeding brain. Some two
            days later, Victim died from his injuries.

                  Expert medical testimony established that
            Victim sustained his fatal injuries when he was under
            Appellant’s exclusive control. One expert testified
            that an immense amount of force was applied to
            Victim’s head in a very short duration, damaging the
            brain and causing it to bleed. While the expert could
            not say that Victim was shaken, he did testify that
            the probability was high that Victim was grabbed and
            slammed against something.

                   A second expert testified that Victim was
            shaken violently and that, in the course of being
            shaken, his head struck an object, thus causing his
            brain to swell and bleed. He indicated that the
            injuries revealed a case of Shaken Baby Syndrome
            or Shaken Impact Syndrome.          The expert also
            testified that Victim suffered a rib fracture from
            being squeezed violently during the shaking episode.

                  [During trial,] Appellant contended that he was
            sleeping on a couch with Victim and that Victim fell
            from the couch into a nearby, padded bassinet or
            onto the floor. The medical evidence showed that
            Victim’s injuries could not have occurred from the fall
            which Appellant described.

Id. at 770.    In his PCRA petition, appellant produces another alternate

theory of the case, in which he alleges that the infant victim died as a result

of injuries sustained approximately two and a half weeks prior his death




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when he was struck in the head by a Nerf football thrown by the infant’s

mother’s three-year-old son. (See appellant’s brief, exhibit “B.”)

      The PCRA court provided the following relevant procedural history:

                   Kenneth M. Hardy, Jr. (Defendant) was
            arrested on July 16, 2003 in Mifflin County.
            Defendant was charged with two (2) counts
            including:      Criminal Homicide (18 Pa.C.S.A.
            § 2501(a)) and Endangering Welfare of Children
            (18 Pa.C.S.A. §4304(a)). A Preliminary Hearing was
            held August 7, 2003 before District Justice
            Michael M. Colyer. An Omnibus Pre-Trial Motion was
            filed October 23, 2003, requesting the Court to
            appoint an investigator and a medical expert. On
            December 11, 2003, the Court authorized the
            Defendant to retain a medical expert for the purpose
            of reviewing medical records, police records, and
            other documents and to provide an opinion to
            defense counsel regarding the manner of death.
            Defendant was also authorized to retain a private
            investigator.   During this time period, Defendant
            filed a Motion for Continuances on October 24, 2003,
            May 11, 2004 and December 19, 2004, in order to
            evaluate and prepare his case.

                  On August 10, 2004, Defendant entered a
            negotiated guilty plea to the charge of Criminal
            Homicide, with Count II, Endangering Welfare of
            Child as Parent to be nol prossed. A pre-sentence
            investigation was ordered on August 10, 2004. On
            September 29, 2004, Defendant filed a pro se Motion
            for Change of Appointed New Counsel.              On
            September 30, 2004, Defendant filed a Motion to
            Withdraw Guilty Plea.       On October 07, 2004,
            Defendant filed a pro se Petition For Release From
            Incarceration on Nominal Bail, Pursuant to Pa.R.C.P.,
            Rule 600. Defendant’s Motion to Withdraw his Guilty
            Plea and his Petition for new counsel were granted
            on October 21, 2004. His Petition for Release from
            Incarceration was denied. Mark J. Remy, Esquire
            was    appointed    to   represent   Defendant    on



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          November 4, 2004.       Defendant, through counsel,
          filed a Motion for Continuance on January 18, 2005.

                A two-day trial was held, and on March 10,
          2005, a jury found Defendant guilty of Murder of the
          Third Degree and Endangering the Welfare of a
          Child. He was sentenced on March 16, 2005, to a
          period of incarceration of not less than eighteen (18)
          years nor more than forty (40) years. On March 28,
          2005, Defendant filed a Post-Sentence Motion asking
          the Court to modify his sentence and requesting new
          counsel be appointed. The Court appointed Ralph A.
          Germak, Esquire on April 14, 2005.

                 On July 13, 2005, Attorney Germak filed
          Post-Sentence Motions alleging ineffectiveness of
          trial counsel, prosecutorial misconduct and trial court
          errors. The Court denied the motions on August 24,
          2005.     Defendant filed a Notice of Appeal on
          September 13, 2005 and a Statement of Matters
          Complained of on October 3, 2005. The Superior
          Court    of    Pennsylvania    declined  to    address
          Defendant’s ineffectiveness claims and affirmed the
          judgment of sentence on February 23, 2007. A Final
          Order denying Defendant’s Request for Appeal to the
          Pennsylvania Supreme Court was filed on January 2,
          2008. Attorney Germak filed a Motion to Withdraw
          and the Court granted his Motion on February 8,
          2008.

                 On January 11, 2008, Defendant filed a
          Petition for Relief under the Post-Conviction Relief
          Act or Writ of Habeas Corpus and Attorney David G.
          Smith was appointed, as replacement counsel, on
          February 8, 2008.       Defendant filed a Motion
          Requesting Funding to Hire an Expert Witness and a
          Hearing on said Motion was scheduled for January 2,
          2009.    On January 21, 2009, the Court denied
          Defendant’s motion.

                 On December 8, 2014, Defendant’s subsequent
          appointed Counsel, Attorney Justin P. Miller filed a
          Petition for Leave to Withdraw, upon providing
          Defendant with a No Merit letter. Defendant filed


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            Written Objections to the No Merit Letter and the
            Court provided Defendant with a Notice of Intention
            to Dismiss on January 21, 2015.

PCRA court order and opinion, 2/26/15 at 1-3.          Appellant filed written

objections to the notice of intention to dismiss on February 16, 2015, and

the PCRA court dismissed appellant’s PCRA petition on February 26, 2015.

On March 24, 2015, appellant filed timely notice of appeal to this court (see

discussion, infra). The PCRA court ordered appellant to produce a concise

statement of errors complained of on appeal, pursuant to Pa.R.A.P. 1925(b),

on April 28, 2015.    Appellant filed his concise statement on May 4, 2015,

and the PCRA court issued a statement in compliance with Rule 1925(a) on

May 12, 2015.

      Appellant raises the following issues for our review:

            I.     Whether       PCRA    counsel     meaningfully
                   participated in the adjudication of Appellant’s
                   first counseled PCRA petition?

            II.    Whether the PCRA Court erred as a matter of
                   law in reviewing claims raised in Appellant’s
                   second PCRA petition?

            III.   Whether the PCRA Court erred as a matter of
                   law or committed an abuse of discretion in
                   denying Appellant’s PCRA petition without
                   assistance of an expert witness by which was
                   necessary in the preparation of an Amended
                   PCRA petition?

Appellant’s brief at 4.

      Before considering the issues appellant has raised on appeal, we must

first address whether appellant’s review is timely, and by extension, whether


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this court has jurisdiction over the instant appeal.   The PCRA court stated

that this court does not have jurisdiction in this case because appellant filed

his notice of appeal after the 30-day appeal period had expired, and by so

doing, waived his right to an appeal. (PCRA court opinion, 5/12/15 at 3.)

We do not agree.

      Appellant’s petition for relief pursuant to the PCRA was denied by the

PCRA court on February 26, 2015. Appellant had 30 days to file a notice of

appeal to this court, pursuant to Pa.R.A.P. 903.        On March 24, 2015,

appellant filed a timely, albeit defective, notice of appeal to this court by

depositing his notice of appeal in the mailbox at SCI Benner Township. See

Commonwealth v. Jones, 700 A.2d 423, 426 (Pa. 1997) (deems a notice

of appeal filed when an appellant deposits the notice of appeal in the prison

mailbox under what is commonly referred to as the “Prisoner Mailbox Rule”).

The Jones court also held that the Prisoner Mailbox Rule applies to all

appeals by pro se prisoners.       Id.   An appellant bears the burden of

establishing that he or she complied with the Prisoner Mailbox Rule.       Id.

Acceptable forms of verification of compliance with the Prisoner Mailbox Rule

include, inter alia, a certificate of mailing, a “cash slip” from prison

authorities, or an affidavit attesting to the date the notice was deposited in

the prison mailbox. Id.

      In the instant appeal, appellant provided an affidavit in which he

attested that he deposited his notice of appeal into the mailbox at



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SCI Benner Township.        On April 1, 2015, the Mifflin County Court of

Common Pleas Clerk of Courts mailed appellant a letter indicating that his

notice of appeal dated March 24 was defective because it did not include

enough copies. Appellant’s initial notice of appeal was not time-stamped by

the Clerk of Courts. Appellant filed a revised notice of appeal on April 22,

2015, which was time-stamped by the Clerk of Courts. Our supreme court

has determined that a clerk of courts’ failure to time-stamp a notice of

appeal “does not mean that the [appellant’s] appeal is improperly before

[the appellate court.]”    Commonwealth v. Williams, 106 A.3d 583, 590

(Pa. 2014).

      We find that appellant in the instant case filed a timely, albeit

defective, notice of appeal. Therefore, this court has jurisdiction to consider

appellant’s appeal. We shall now consider the issues appellant has raised for

our review.

      PCRA petitions are subject to the following standard of review:

              “[A]s a general proposition, we review a denial of
              PCRA relief to determine whether the findings of the
              PCRA court are supported by the record and free of
              legal error.” Commonwealth v. Dennis, 609 Pa.
              442, 17 A.3d 297, 301 (Pa. 2011) (citation omitted).
              A PCRA court’s credibility findings are to be accorded
              great deference, and where supported by the record,
              such determinations are binding on a reviewing
              court. Id. at 305 (citations omitted). To obtain
              PCRA relief, appellant must plead and prove by a
              preponderance of the evidence: (1) his conviction or
              sentence resulted from one or more of the errors
              enumerated in 42 Pa.C.S. § 9543(a)(2); (2) his
              claims have not been previously litigated or waived,


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            id. § 9543(a)(3); and (3) “the failure to litigate the
            issue prior to or during trial . . . or on direct appeal
            could not have been the result of any rational,
            strategic or tactical decision by counsel[.]          Id.
            § 9543(a)(4). An issue is previously litigated if “the
            highest appellate court in which [appellant] could
            have had review as a matter or right has ruled on
            the merits of the issue[.]” Id. § 9544(a)(2). “[A]n
            issue is waived if [appellant] could have raised it but
            failed to do so before trial, at trial, . . . on appeal or
            in a prior state postconviction proceeding.”          Id.
            § 9544(b).

Commonwealth v. Treiber, 121 A.3d 435, 444 (Pa. 2015).

      Under his first issue, appellant alleges ineffective assistance of his

PCRA counsel. Although in his brief he asserts layered ineffectiveness, it is

unclear as to the specific ineffectiveness directed to specific attorneys.

Appellant explicitly references ineffective assistance from his trial counsel,

Mark J. Remy, Esq., his PCRA counsel, Justin P. Miller, Esq., and Miller’s

predecessor, David G. Smith, Esq.1

                  The governing legal standard of review of
            ineffective   assistance of  counsel  claims is
            well-settled:

                         [C]ounsel is presumed effective,
                  and to rebut that presumption, the PCRA
                  petitioner   must    demonstrate    that
                  counsel’s performance was deficient and
                  that such deficiency prejudiced him.

1
  We note that the lower court has appointed six different attorneys to
represent appellant throughout this matter.          Because appellant only
specifically references Attorneys Remy, Miller, and Smith in his brief, we
shall only analyze their respective performances for the purposes of
appellant’s ineffective assistance of counsel claim. See Commonwealth v.
Gould, 912 A.2d 869, 873 (Pa.Super. 2006) (citations omitted) (this court
cannot consider issues not fully developed in appellant’s brief).


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                  Strickland v. Washington, 466 U.S.
                  668 (1984). This Court has described
                  the Strickland standard as tripartite by
                  dividing the performance element into
                  two          distinct         components.
                  Commonwealth v. Pierce, 527 A.2d
                  973, 975 (Pa. 1987). Accordingly, to
                  prove counsel ineffective, the petitioner
                  must     demonstrate     that   (1)    the
                  underlying legal issue has arguable
                  merit; (2) counsel’s actions lacked an
                  objective reasonable basis; and (3) the
                  petitioner was prejudiced by counsel’s
                  act or omission.      Id.     A claim of
                  ineffectiveness will be denied if the
                  petitioner’s evidence fails to satisfy any
                  one of these prongs.

            Commonwealth v. Busanet, 54 A.3d 34, 45 (Pa.
            2012) (citations formatted).      Furthermore, “[i]n
            accord with these well-established criteria for review,
            [an appellant] must set forth and individually discuss
            substantively each prong of the Pierce test.”
            Commonwealth v. Fitzgerald, 979 A.2d 908, 910
            (Pa.Super. 2009).

Commonwealth v. Perzel, 116 A.3d 670, 671-672 (Pa.Super. 2015).

      We shall first address appellant’s claims of ineffectiveness against

Attorney Remy. In order to be granted relief for an ineffective assistance of

counsel claim, an appellant must, as the Perzel court noted, substantively

discuss each individual prong of the Pierce test. The only allegations that

appellant   makes     regarding    Attorney   Remy’s     assistance      is   that

Attorney Remy fail[ed] “to investigate, obtain and present [a] forensic

medical expert to aid development of defense to rebut Commonwealth’s

theory in prosecuting their (sic) case.” (Appellant’s brief at 10-11.)



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      This is inadequate to establish that Attorney Remy’s assistance to

appellant was ineffective.     “Such undeveloped claims, based on boilerplate

allegations,      cannot    satisfy   appellant’s     burden    of       establishing

ineffectiveness.” Commonwealth v. Steele, 961 A.2d 786, 797 (Pa. 2008)

(citations omitted).    Therefore appellant’s claim of ineffective assistance of

counsel as to Attorney Remy’s performance at trial is without merit.

      We now turn to appellant’s allegation that Attorney Miller failed to

provide effective assistance as appellant’s PCRA counsel.       It is well settled

that a petitioner is entitled to effective assistance of counsel when filing his

or her first petition pursuant to the PCRA.         Commonwealth v. Albrecht,

720 A.2d 693, 700 (Pa. 1998).         The Albrecht court also established the

following standard for effective assistance of PCRA counsel:

               [W]e will grant relief only if Appellant has shown that
               “counsel's conduct, by action or omission, was of
               questionable legal soundness; that the conduct
               complained of had no reasonable basis designed to
               effectuate the client’s interest; and that counsel’s
               conduct had an adverse effect on the outcome of the
               proceedings.” Commonwealth v. Clark, 710 A.2d
               31, 35 (Pa. 1998). If it is clear that Appellant has
               not demonstrated that counsel's act or omission
               adversely affected the outcome of the proceedings,
               the claim may be dismissed on that basis alone and
               the court need not first determine whether the first
               and     second       prongs      have     been    met.
               Commonwealth v. Travaglia, 661 A.2d 352, 357
               (Pa. 1995).

Albrecht, supra at 701.




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      In the case sub judice, it is clear that appellant has not established

that PCRA counsel’s failure to pursue appellant’s theory of the underlying

case affected the outcome of the proceedings. Appellant devotes much of

the first argument section of his brief to his theory of the case where he

discusses this theory that the victim’s previously unreported sleep apnea and

accident involving a Nerf football may have contributed to the victim’s death.

(Appellant’s brief at 13.)   Appellant also avers that he “requires PCRA

counsel to consult and present forensic medical expert[s] to determine

whether ‘said’ ‘football’ incident [was] the proximate cause of [the victim’s]

demise.” (Id.)

      As stated in Attorney Miller’s Turner/Finley2 letter, this claim has no

merit. The Commonwealth presented testimony from two expert witnesses

that stated that the victim’s death was the result of “non-accidental trauma.”

Moreover, a potential expert witness that was consulted by Attorney Remy in

preparation for trial stated that she was inclined to agree with the

Commonwealth’s experts.3     Appellant has also failed to name a potential

expert witness who would be able to testify that the infant’s brain injury was

the result of being struck by a Nerf football, instead relying on pure


2
  See Commonwealth v. Turner, 544 A.2d 927                      (Pa.   1988);
Commonwealth v. Finley, 550 A.2d 607 (Pa.Super. 1988).
3
  The potential witness, Dr. Kristie L. Kauffman, stated that the “lesions in
the brain ‘result from forceful deformation of the head, unless a massive
accidental event is associated, their presence is highly suggestive of abusive
force.’” (Docket #81.)


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speculation that such an expert exists.          Moreover, the PCRA court denied

appellant’s motion for funding for an expert witness. (Docket #55.)

      We determine that Attorney Miller’s failure to find an expert who can

corroborate appellant’s theory of the case was not ineffective assistance, and

appellant has failed to establish that the outcome of the proceedings would

have been any different.

      Appellant also avers that Attorney Miller failed to comply with the

requirements set forth by Turner and Finley. Specifically, appellant alleges

that Attorney Miller, “failed to address and/or investigate law and facts

relative to appellant’s claims raised in his timely filed first counseled PCRA

petition.” (Appellant’s brief at 10.)

            The Turner/Finley decisions provide the manner for
            post-conviction     counsel    to  withdraw      from
            representation.      The holdings of those cases
            mandate an independent review of the record by
            competent counsel before a PCRA court or an
            appellate court can authorize an attorney’s
            withdrawal.      The necessary independent review
            requires counsel to file a “no-merit” letter detailing
            the nature and extent of his review and list each
            issue the petitioner wishes to have examined,
            explaining why those issues are meritless. The PCRA
            court . . . then must conduct its own independent
            evaluation of the record and agree with counsel that
            the petition is without merit.

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

quoting Commonwealth v. Rykard, 55 A.3d 1177, 1184 (Pa.Super. 2012),

appeal denied, 64 A.3d 631 (Pa. 2013).




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        A review of Attorney Miller’s no-merit letter indicates that he has

complied with the Turner/Finley requirements. Attorney Miller listed each

issue that appellant wished to have examined, and then described in detail

the reasons why all of appellant’s issues were without merit. (See docket

#81.) Attorney Miller provided effective assistance to appellant for his PCRA

petition. Therefore, appellant’s first issue has no merit.

        In his second issue for our review, appellant alleges that the PCRA

court erred by addressing his PCRA petition filed pro se on October 11,

2012.     In his October 11, 2012 PCRA petition, appellant alleged that his

PCRA counsel at the time, David G. Smith, Esq., was providing him

ineffective assistance. Because appellant’s October 11, 2012 PCRA petition

alleges new matter unrelated to his original January 8, 2008 PCRA petition,

the October 11, 2012 petition is treated as a new petition. Commonwealth

v. Porter, 35 A.3d 4, 12 (Pa. 2012). A petitioner is prohibited from filing a

subsequent PCRA petition while the original petition is still being reviewed by

a court.      Commonwealth v. Lark, 746 A.2d 585, 588 (Pa. 2000).

Therefore, appellant’s October 11, 2012 PCRA petition should have been

dismissed.

        In his third issue for our review, appellant alleges that the PCRA court

erred by denying appellant’s PCRA petition without first considering a

potential expert witness. It is unclear, however, based on the contents of

his brief, if appellant is actually alleging that the PCRA court erred when it



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refused to appoint an expert witness to assist appellant’s petition; or if he is

alleging ineffective assistance of PCRA counsel for failing to secure an expert

witness. We shall discuss both allegations.

        We first address whether the PCRA court erred by refusing to appoint

an expert witness, Kirk L. Thibault, Ph.D., to corroborate the theories raised

in appellant’s petition--specifically, the theory that the infant’s death was

caused by injuries sustained as a result of being struck on the head by a

Nerf football several weeks before the infant’s death.       Our supreme court

has stated that:

              The provision of public funds to hire experts to assist
              in the defense against criminal charges is a decision
              vested in the sound discretion of the court and a
              denial thereof will not be reversed absent an abuse
              of that discretion. At the trial stage, “an accused is
              entitled to the assistance of experts necessary to
              prepare a defense.” This court has never decided
              that such an appointment is required in a PCRA
              proceeding.     We must review the PCRA court’s
              exercise of its discretion in the context of the
              request, that an expert’s testimony is necessary to
              establish his entitlement to relief under 42 Pa.C.S.
              § 9543(a)(2)(vi), the provision of the PCRA which
              deals with claims of innocence based on
              after-discovered evidence.[4]

Commonwealth v. Reid, 99 A.3d 470, 505 (Pa. 2014), quoting Albrecht,

supra at 707 (emphasis added).

        The PCRA court, in addressing appellant’s claim, stated that Thibault’s

testimony would not have undermined the Commonwealth’s case due to the


4
    Appellant does not raise such a claim in the instant appeal.


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overwhelming evidence presented by the Commonwealth, which included

two expert witnesses who testified that the victim’s death was caused by

“non-accidental trauma.” (PCRA court opinion, 5/12/15 at 7.) We find that

appellant was not entitled to have a court-appointed expert witness assist in

his litigation of his PCRA petition, and this issue has no merit.

      We now address whether PCRA counsel was ineffective in failing to

secure an expert witness who was willing to testify on behalf of appellant.

Appellant is unable to establish by a preponderance of the evidence that he

was prejudiced by Attorney Smith’s failure to secure Thibault’s services, as is

required to prevail on an ineffective assistance of counsel claim, see Perzel,

supra. In order to establish prejudice resulting from counsel failing to call a

witness, a petitioner must be able to prove by a preponderance of the

evidence that,

            (1) [T]he witness existed; (2) the witness was
            available to testify for the defense; (3) counsel
            knew, or should have known, of the existence of the
            witness; (4) the witness was willing to testify for the
            defense; and (5) the absence of the testimony of the
            witness was so prejudicial as to have denied the
            defendant a fair trial.

Commonwealth v. Wantz, 84 A.3d 324, 331 (Pa.Super. 2014), citing

Commonwealth v. Sneed, 45 A.3d 1096, 1108-1109 (Pa. 2012) (citations

omitted).

      In the case sub judice, appellant has failed to meet the fourth prong

under Wantz, which requires that the witness is willing to testify on behalf



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of appellant.   As the PCRA court noted in its notice to dismiss appellant’s

PCRA petition, “Counsel of record has sent numerous letters, telephone calls,

and messages to Dr. Thibault and has been unable to communicate with

him.”     (PCRA court order and opinion, 2/26/15 at 7.)       The numerous

unsuccessful attempts by Attorney Smith to reach Thibault indicate that

Thibault was unwilling to testify on behalf of appellant. Therefore, appellant

is not able to establish by a preponderance of the evidence that he was

prejudiced by Attorney Smith’s failure to secure an expert witness’s services,

and his third issue is without merit.

        Order affirmed.

Judgment Entered.




JosephD.Seletyn,Esq.
Prothonotary

Date: 12/1/2015




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