J-S69002-17



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA


                    v.

JOHN KOWAL

                          Appellant                 No. 1349 WDA 2016


                 Appeal from the PCRA Order August 5, 2016
            In the Court of Common Pleas of Washington County
            Criminal Division at No(s): CP-63-CR-0000473-2006


BEFORE: BOWES, RANSOM, JJ. and STEVENS, P.J.E.*

MEMORANDUM BY BOWES, J.:                       FILED NOVEMBER 16, 2017

      John Kowal appeals pro se from the August 5, 2016 order denying him

PCRA relief. We affirm.

      On August 3, 2007, Appellant was found guilty of one count of

involuntary deviate sexual intercourse with a victim who was less than

sixteen years old, three counts each of aggravated indecent assault and

indecent assault of a person who was less than sixteen years old, and six

counts of corruption of a minor.      The PCRA court briefly summarized the

facts supporting Appellant’s convictions:

            From 2004 to 2005, Defendant, then approximately forty-six
      (46) years old, engaged in a series of instances of inappropriate
      contact with J.O., then a thirteen (13) year old minor child (hereinafter
      "Victim"), which began with discussing personal issues with her, then
      led to “French kissing” and ultimately, four (4) instances of sexual
      assault. The first assault was during a "movie night" orchestrated by

* Former Justice specially assigned to the Superior Court.
J-S69002-17



     Defendant, when, in his home, and with Victim's sister and
     Defendant's stepsons (all minors) in the room, Defendant digitally
     penetrated Victim's vagina for approximately thirty (30) seconds. The
     second, approximately two weeks later, occurred when Victim returned
     home from school. Defendant followed her into her home and again
     digitally penetrated her vagina. The third incident occurred during
     another "movie night," when Defendant again, with Victim's sister and
     Defendant's stepsons in the room, digitally penetrated Victim's vagina
     for approximately one (1) minute. Finally, the fourth incident also
     occurred during a “movie night,” when Victim was awoken from her
     sleep on Defendant's sofa by what was described as a hard, probably
     plastic object entering her anus.

           During this time period, it was stated at trial that Defendant had
     been treating Victim as his girlfriend - taking Victim shopping, taking
     her to lunch, and engaging in intimate conversations with Victim.
     Victim also testified that Defendant had also offered Victim alcohol
     during one of the "movie nights," and threatened to hurt her family
     and take away her friends at school if she told anyone what he had
     done to her.

Trial Court Opinion, 2/16/17, at 1-2 (footnotes omitted).

     Appellant   was    sentenced    to   twenty-one   to   forty-two   years

imprisonment, and, on appeal, we affirmed, concluding that all of Appellant’s

issues were waived since they were not included in his Pa.R.A.P. 1925(b)

statement.    Commonwealth v. Kowal, 986 A.2d 1258 (Pa.Super. 2009)

(unpublished memorandum). Appellant filed a timely PCRA petition seeking

restoration of his appellate rights, which was granted. On direct appeal, we

affirmed, addressing and rejecting seven contentions raised by Appellant.

Commonwealth v. Kowal, 96 A.3d 1093 (Pa.Super. 2014) (unpublished

memorandum).




                                    -2-
J-S69002-17



      Appellant filed a timely pro se PCRA petition. In his petition, Appellant

asserted that his trial attorney was ineffective and his sentence was illegal.

Appellant’s specific averments were that trial counsel was ineffective for

neglecting to: 1) investigate his case and prepare a defense; 2) object to

improper cross-examination of Appellant; and 3) complain about the trial

court’s improper inclusion in plea negotiations.        Appellant additionally

averred that his sentence was illegal, unconstitutional, and excessive.

Finally, he suggested that there were numerous errors, which had a

cumulative effect of undermining the reliability of his guilty verdict.     The

court PCRA court appointed Stephen Paul, Esquire, to represent Appellant.

Mr. Paul moved to withdraw pursuant to Commonwealth v. Turner, 544

A.2d 927 (Pa. 1988) and; Commonwealth v. Finley, 550 A.2d 213

(Pa.Super. 1988) (en banc), based on his conclusion that Appellant’s

averments lacked merit.

      The PCRA court provided Appellant with Pa.R.Crim.P. 907 notice of its

intent to dismiss the petition without a hearing, and Appellant responded to

the notice. The court then allowed counsel to withdraw, and denied relief.

This appeal, wherein Appellant raised the following issues, followed:

      (1) Was Appellant denied a meaningful review of his first PCRA
      Petition and denied a hearing due to the ineffectiveness of his
      court-appointed PCRA counsel, as well as the PCRA Courts'
      [usurpation] of Pennsylvania rules and statutes of the
      Commonwealth of PA, and relevant case law; in violation of
      Article I, Section(s) 9 and 14 of the PA Constitution, and the 5th,
      6th and 14th amendments to the U.S. Constitution; and was

                                     -3-
J-S69002-17



      Appellant prejudiced by PCRA Counsel and the PCRA Court's
      wholesale declaration that none of Appellant's PCRA claims had
      merit, also denying Appellant the opportunity for cumulative
      error review?

      (2) Was the PCRA Court in error in failing to conduct an impartial
      evidentiary hearing, and in denying Appellant's claim that trial
      counsel was ineffective for failing to object to the trial judge's
      participation with direct, behind close[d] doors plea negotiations
      in his chambers the morning of the first day of trial; and was the
      PCRA Court in error in failing to conduct an impartial evidentiary
      hearing and to provide requested discovery in the form of
      transcripts related to a pretrial ex parte meeting in judge's
      chambers six weeks prior to the start of trial, of which could
      support Appellant's claims that inappropriate and false
      information was relayed by counsel to the trial judge, resulting in
      prejudicial and biased conduct by the trial judge at subsequent
      hearings, trial, sentencing, and on appeal?

      (3) Was the sentencing court in error when mandatory minimum
      sentencing considerations were presented at a pretrial hearing
      by the trial court, and then later used in fashioning his sentence
      following his conviction; and was direct appeal counsel
      ineffective for failing to properly preserve, and present the claim
      on direct appeal a mandated by recently decided federal
      (Alleyne) and PA state (Washington) case law which limited the
      time for seeking relief to only those Pennsylvania defendants on
      direct appeal?

Appellant’s brief at 2-3.

      Initially, we observe, “Our standard of review of a PCRA court's

dismissal of a PCRA petition is limited to examining whether the PCRA

court's determination is supported by the record evidence and free of legal

error.”   Commonwealth v. Whitehawk, 146 A.3d 266, 269 (Pa.Super.

2016).    Appellant’s first two issues concern trial counsel’s ineffectiveness,

and his final claim is that he was improperly sentenced to unconstitutional



                                     -4-
J-S69002-17



mandatory minimum sentences.        We examine allegations of ineffective

assistance of counsel under the following standards:

                  Counsel 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.
           Strickland v. Washington, 466 U.S. 668, 104 S.Ct.
           2052, 80 L.Ed.2d 674 (1984).            This Court has
           described the Strickland standard as tripartite by
           dividing the performance element into two distinct
           components. Commonwealth v. Pierce, 515 Pa.
           153, 527 A.2d 973, 975 (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, 618 Pa. 1, 54 A.3d 34, 35, 45
     (2012). Furthermore, “in 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. Roane, 142 A.3d 79, 88 (Pa.Super. 2016).

     After consideration of the facts, briefs, and applicable law, we affirm

the denial of relief with respect to the first two issues on the basis of the

thorough and well-reasoned February 16, 2017 opinion of the PCRA court.

Regarding Appellant’s final issue, we note that the record substantiates that

Appellant’s sentences were imposed pursuant to the sentencing guidelines,

and the sentencing court did not utilize a mandatory minimum sentencing

                                    -5-
J-S69002-17



statute. N.T. Sentencing, 11/27/07; Trial Court Opinion, 7/31/08, at 8-11.

Thus, Appellant’s sentencing challenge is meritless.

      Order affirmed.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/16/2017




                                    -6-
                                                                                                                     dJ~·r,
                                                                                         Circulated 10/20/2017 03:18 PM



        THE COURT OF COMMON PLEAS OF WASHINGTON COUNTY, PENNSYLVANIA
                                .         CRJMINAL DIVISION

     COMMONWEALTH OF PENNSYLVANIA                         )
                                                          )
                                                          )
                      vs.                                 )
                                                          )           No.   473,.z.006
                                                          )
     JOHN KOWAL                                           )
                      Defendant,                          )
                                                          )



            This matter comes before the Court upon Defendant's appeal from the PCRA court's

    Order dated August 2, ZO I(?, denying his Post Conviction Relief Act (PCRA) Petition,
                            .                                     .
            On August 30, 2016, Defendant, John Kowal (hereinafter referred to as "Defendant"), pro

    se, filed a Notice of Appeal to the Superior Court from the denial of his PCRA petition,

                                            F~ctual.
                                            .. . . ..
                                                  ;   . History
                                                         . -~ .

           The facts of the case, briefly summarized, are as follows:

           From 2004 to 2005, Defendant, then approximately forty-six (46) years old, engaged in a

    series of Instances of inappropriate contact with J.O., then a thirteen (13) year old minor child

    (hereinafter "Victim"), which began with discussing personal issues with her, then led to "french

    kissjing]"' and ultimately, four (4) instances of sexual assault, The first assault was during a

    "movie night" orchestrated by Defendant, when, in his home, and with Victim's sister and

Defendant's       stepsons (all minors) i11 the room. Defendant digitally penetrated Vi9tim1s~gin.a
                                                                                               =~n
                                                                                               )>,
                                                                                                          - .
                                                                                                          -.J

for approximately thirty (30) seconds." The second, approximately two weeks                    lii'~, oeekrecf'r1
                                                                         z~~ co      ~~
when Victim returned home from school. Defendant followed her into her h~g~and')gaiJ=-""
                                                                                               z0C)      ·u.
                                                                                                         _,.
                                                                                                                rn
                                                                                                                u .
                                                                                               ("")C     ~      '~""\!
                                                                                               O:;::o    -      l;.<=cr-'
                                                                                                 --!      ••
                                                                                               ;i;c.,?   (fj
I
    See TT 275~300.                                                                                      -.J
i   TI 230-236.
     digitally penetrated her vagina. '.J The third incident occurred during another "movie night," when

     Defendant again, with Victim's sister and Defendant's stepsons in the room, digitally penetrated

     Victim's vagina for approximately one (l) minute.4 Finally, the fourth incident also occurred

     during a "movie night," when Victim was awoken from her sleep on Defendant's sofa by what

    was described as a hard, probably plastic object entering her anus. 5 It was suggested, but never

    confirmed, that this object was a television remote control.

            During this time period,     it was stated   at trial. that Defendant had been treating Victim as

    his girlfriend - taking Victim shopping, taking her to lunch, and engaging in intimate

    conversations with Victim.6 Victim also testified that Defendant had also offered Victim alcohol

    during one of the "movie nights," and threatened to hurt her family and take away her friends at

    school if she told anyone what he had done to her.7

                                              Procedural
                                              . .. ,     .
                                                           Histon:
                                                            ·- .,.


            The Canonsburg Police Department filed a criminal complaint against Defendant on

    December 20, 2005,8 whereby Defendant was arrested and charged with three (3) counts of

    Aggravated Indecent Assault of a Person Less than 16 Years of Aw/, three (3) counts of

    Indecent Assault of a Person Less than 16 Years of Age, 10 six (6) counts of Corruption of
            11
Minors,          and one ( 1) count of Involuntary Deviate Sexual Intercourse of a Person Less than 16
                     12
Years of Age,             After Defendant's scheduled preliminary arraignment and preliminary hearing,

the Commonwealth filed the criminal information on April 26, 2006, charging Defendant with

~ TT 237-239.
"See TT240.
5
    TT 243~:Z45.
6
  See TT 240-24 I.
7
  TT 248, 290, 305.
i  Docket entry 7.
9
   18 Pa.C.S. § 3 l25(a)(8).
10
    18 Pa.C.S. § 3 l26M(8).
11
    18 Pa.C.S, § 6301(a)(I).
12
    18 Pa.C.S. § 31 t3(a)(7).

                                                         2
     the same charges listed in the ccmplaint.l? After multiple defense continuances, defense counsel,

     James Marchewka, Esquire, requested an additional continuance and made a motion to withdraw

     as counsel, citing an ethical conflict in continuing to represent Defendant. The court granted the

     motion on June 12, 2007,14 and Attorney Marchewka withdrew his appearance on June 15,

     2007, 15 Kristen Clingerman, Esquire then made an additional motion for continuance on behalf
                                                                          17
     of defendant, which the court denied on July 19, 2007.16                  Attorney Clingerman again made a

     motion to continue the case, which the court denied on July 24, 2007.18

                Defendant's jury tritll was held from July 30, 2007 to August 3, 2007. On August 3,

     20071 the jury rendered its verdict, finding Defendant guilty on a.11 counts." A Pre-Sentence

     Investigation was completed, and on November 27, 2007, the court sentenced Defendant as

     follows;

                 On count I. (a) on the charge of Aggravated Indecent Assault, a felony of the
            second degree:
                Be transferred from the Washington County Correctional Facility to the
            Department of Corrections for placement in an appropriate state correctional
            facility for [a] period of no less than 4 years and no more than 8 years. This
            sentence is to run consecutively to the sentence the Defendant is currently serving
            at #i48 of 2006,

                On count I. (a) on the second count of Aggravated Indecent Assault, a felony
            of the. second degree:
                Be transferred from the Washington County Correctional Facility to the
            Dt?partm~nt of Corrections for pJapement in an appropriate state correctional
            facility for [a) period of no less than 4 years and no more than 8 years. This
            sentence is to run consecutively to the sentence the Defendant is currently serving
            at #248 of 2006 and consecutively to count I. (a), the first count of Aggravated
            Indecent Assault.                                                         ··


 ·~ Docket ¥ntry 9.
14
    Docket ontry i 1.
1~
    Doc.ket entry iz.
l<i Docket entry 23.
17
    Attorney Clingerman had ba~im to represen: Defettdant at thi~ time, put did not officially enter her appearance on
the record until Augtist 2, 200'7, Doeket entry 26.
18   Docket entry 25.
19
     Docket entry 27.
                                                          3
    On coun] I. (a) on the third count of Aggravated Indecent Assault, a felony of
the second degree: ·                       . .                                ·
    Be transferred from the Washington County Correctional Facility to the
Department of Corrections for placement in an appropriate state correctional
facility for (a] period of no less than 4 years and no more than 8 years. This
sentence is to. run consecutively to the sentence the Defendant is currently serving
at #248 ofJW06 and consecutively to count I. (a), 2 counts of Aggravated Indecent
Assault,

   No sentence Is imposed op the charges of Indecent Assault, count I. (b), (;,
counts), as those effenses merge with the three counts of Aggravated Indecent
Assault for purposes of sentencing,
    On Count I. (o), on the charge of Corruption of Minors, first count, a
misdemeanor qf the first degree, theCourt sentences the Def endant to:
    Be transferred from the Washington County Correctional Facility to the
Department of Corrections for placement in an apprQprifttC;} state correctional
facility for [~] period of no less than t year and no more than 2 vears. This
sentence js to nm consecutively to the sentence the Defendant is currently serving
at #'248 of 2006 and consecutively to count L (a) 3 counts of Aggravated Indecent
Assault.
     On the charge of Corruption of Minors, second count, a misdemeanor of the
first degree, the Court sentences the Defendant to:
     13e ··tr~sferre.d from the Washington County Correctional facility to the
Department of Corrections for placement in an appropriate state correctional
facility for [a] period of po less than l year and no more than 2 years. This
sentence is to run consecutively to the. sentence the Defendant is currently serving
at #24S of 2006 and consecutively to count I, (a) 3 counts of Aggravated Indecent
Assault and to count X. (c) on the first count of Corruption of Minors.

    On the charge of Corruption of Minors, third count, a misdemeanor of the first
degree, the Court sentences the Pefend11nt to:
   · Be transferred from the Washington County Correctional F~cllity to the
Department of Corrections for placement in an appropriate state correctional
facility for [a] period of no less than 1 year and   no   more than '.2 years, This
sentence is to run consecutively to the sentence th~ Defendant ls currently serving
at #248 of 2006 and consecutively to count 1. (a) 3 counts of Aggravated Indecent
Assault and to counts I. (c) and the first 2 counts of the charge pf Corruption of
Minors.                                                        ,

     On the charge. of Corruption of Minors, fourth count, a misdemeanor of the
first degree, the Court sentences the Defendant to:
     Be transferred from the Washington County, Correctional Facility to the
Department of Corrections for placement in an appropriate state correctional
facility for [a] period of no less than 1 year and no more than 2 years. This

                                        4
           sentence is to run consecutively to the sentence the Defendant is currently serving
           at #248 of2006 and consecutively to count I. (a) 3 counts of Aggravated lndecent
           Assault and to count I. (c) 3 counts of Corruption of Minors.

               On the charge of Corruption of Minors, fifth count, a misdemeanor of the first
           degree, the Court sentences the Defendant to:
                Be transferred from the Washington County Correctional Facility to the
           Department of Corrections for placement in an appropriate state correctional
           facility for [aJ period of no less than 1 year and no morn than 2 years. This
           sentence is to nm consecutively to the sentence the Defendant is currently serving
          at #248 of 2006 and consecutively to count I. (a) '.? counts of Aggravated Indecent
          Assault and to count I. (c) 4 counts of Corruption of Minors.

               On the charge of Corruption of Minors, sixth count, a misdemeanor of the first
          degree, the Court sentences the Defendant to:
               Be transferred from the Washington County Correctional · Facility to the
          Department of Corrections for placement in an appropriate state correctional
          facility for [a] period of no less than 1 year and no more than 2 years. This
          sentence is to nm consecutively to the sentence the Defendant is currently serving
          at #248 of 2006 and consecutively to count I. (a) 3 counts of Aggravated Indecent
          Assault and to count I. (c) five counts of Corruption of Minors.

               On the charge of Involuntary Deviate Sexual Intercourse, a felony of the first
          degree, the Court sentences tbe Defendant to:              ,
               Be transferred from the Washington County Correctional Facility to the
          Department of Corrections for placement in        an appropriate state correctional
          facility for [a] period of no less than 6 year[s] and no more than 12 years. This
          sentence is to run consecutively to the sentence the Defendant is currently serving
          at #248 of 2006 and consecutively to count I. (a) 3 counts of Aggravated Indecent
          Assault and to count I. (c) 6 counts of Corruption of Minors.     ·

             Upon successful completion of the Defendant's minimum sentence he shall be
         released from further incarceration to be placed on parole to be supervised by the
         Pennsylvania State Board of Probation and Parole for the balance of his sentence,

             The total of aJJ sentences is 24 years to 48 years,20

         Attorney Clingerman withdrew her appearance on December 14, 2007.21 On December

 17, 2007, Defendant      filed his notice of appeal, represented    by the Office of the Public

Defender.n The court amended Defendant's sentence on January 16, :2008 and July 31, 2008 to


20
  Docket entry 31,
iiDocket entry 3;2,
n Pocket entry 33.
                                                   5
     run concurrently to his sentence at #.~48 of 2006 and to acknowledge that three (3) of the counts

     of Corruption of Minors would merge with the three (3) counts of Aggravated Indecent Assault,

     thus reducing the total sentence to a term of 21 to 42 years of incarceration.f      On September 4,

     2008, the Superior Court of Pennsylvania affirmed Defendant's conviction, but admonished the

     nature of the post-sentence proceedings and Defendant's       representation, recommending        that
                                                                                24
     Defendant seek Post-Conviction relief to reinstate his appellate fights.        Defendant then filed a

     motion to remove the Public Defender a~ hi~ representation on July 6, 2010.25 On July 27, 2010,

     the Office of the Public Defender made a motion to withdraw ~~ counsel for Defendant, which

     the court granted." The court then appointed Jeffrey Watson, Esquire to represent Defendant on

     September   L 2010.17
            On September 30, 2010, Defendant filed his .PCRA petition seeking reinstatement of his

  appellate rights?8 The court granted Defendant's petition on September L 2011 and reinstated all

 of his appellate rights, including the right to file post-sentence rnotions.f" Defendant filed post-

 sentence motions on September 20, 2011,30 which were denied by operation of law." Defendant

 then filed his notice of appeal on February 21, 2012.n Defendant filed his concise statement of

 matters complained of on appeal on March 13, 2012,3) and an amended concise statement on

 March 21,'2012.34 The trial court issued its opinion on January 4, 2013.35
           The Superior Court then issued its opinion? dated January 27, 2014 and lodged with the
23
     Docket entry J7, 40
24
    Docket entry 46.
 t} poqket entry 47.
 26
    Docket entry 48.
 271)9cket
             entry 49.
 23
    Docket entry 50.
 29
    Docket entry ,54.
30
    Docket entry 55.
JI 0QCk:4;l! entry 5a, 6?,
n Pocket entry 59.
n Qooket ~ntry 62.
34
    Docket entry 64.
3>
    Docket entry 67.

                                                    6
     Clerk of Courts of Washington County on October 21, 4014, affirming Defendant's conviction

     and sentence."

              Defendant filed a pro se PCRA petition, dated June 28, 2015 and lodged with the Clerk of

     Courts on July 14, 2015, claiming his attorneys were all ineffective and that his sentence was

     illegal, specifically asserting the following claims: (1) counsel failed to "investigate the case and

     prepare an adequate defense for trial," Q) counsel "failed to protect Defendant at trial <;iurin~

     cross-examlnation by the Commonwealth, whereby the Commonwealth Investigated the case at

     trial, introduced objectionable questioning that had no basis of fact (sic), nor did the

     Commonwealth present any witnesses to support their interrcgatories and defense counsel

     mounted no defense against it," (3) counsel "failed to object to the trial judge's                          direct

 involvement with plea negotiations just prior to the commencement of trial; and for also failing

 to protect Defendant's Constitutional interests to a fair trial following Attorney Marchewk's (sic)

 private conversations with the trial judge followinghis termination as counsel by Defendant, '1 ( 4)

 "the fashioned sentence in this case is illegal, unconstitutional, and not consistent with the facts

 of this case," and (5) "the cumulative nature of the errors in this case so undermined the truth

 determining process that no reliable adjudication of guilt or innocence could nave taken plac~.1137
                                                                                                            3$
The court ther; appointed Stephen Paul, Esquire to represent Defendant on July 16, 2015.

            On April 28, 2016, Attorney Paul filed his motion to withdraw as counsel and an

accompanying Turner/Finley39 letter, asserting that Defendant's claims had no merjt.40 The court

then, on May 20, 2016, provided Defendant with notice pursuant to Pa.RCrirn.P, Rule 907 that
3~
     Docket entry 7 I.
37
     Docket entry 72.
38
     Doyl<et entry 73.
39
     Commonwealth v. Turner, 518 Pa, 491, 544 A.2d 927 ( 1988); Commonwealth v. Finley, 379 Pa. Super. $90, $.50
A.2~ 4 l 3 (l 988).
40
   Docket entry 76. The record reflects that the court had previously granted counsel's motion to withdraw 011 April
18, 20 l 6, Docket entry 75. The reason for Ole delay of IO days in the tiling of the no merit letter following the
court's initial granting of counsel's motion to withdraw is unclear based on the; record.
                                                          7
     jiis petition would be denied twenty (20) days from the date of the notice.41 Defendant filed a

     response to that notice, dated June 4, 20 J 6 and lodged with the Clerk of Courts on June 20,

 Z016.42 The court; subsequently dismissed Defendant's petition as meritless on August 2, 2016.43

            Defendant then filed his notice of appeal of the dismissal of his fCRA petition   on Augusf- - - -
 30, 2016,44 and his statement of matters complained of on appeal, dated September 29, 2016, was

 lodged with the Clerk of Courts on October J 41 2016, and raised the following issues, verbatim:

             1.  WAS THE PCRA COURT IN ERRO~ WHEN IT DISMISSED
            APPELLANT'S    PCM PETITION, WITHOUT AN EVIDENTIARY
            HEARING, ANO D~EMED. AS NOT HAVING MERIT; WHEREBY
            APPELLANT LAID OUT IN HIS PCRA PETITION CLAIM-I, A DETAILED
            ARGUMENT DEMONSTRATJNG THAT HIS PRE-TRIAL COUNSEL
            (MARCHEWK-A.) AND PRE".TRIAL,ffRlAL COUNSEL (KLJNGERMAN) (sic)
            PROVIDED INEFFECTIVE ASSISTANCE OF COUNSEL IN THEIR
            REPRESENTATION AS GUARANTEED THE BY (sic) 5TH, 6TH, AND
            14TH AMENDMENTS TO THE U.S. CONSTITUTION; IN FAILING TO
           INVESTIGATE THE CASE ANO PREPARE AN ADEQUATE DEFENSE;
           PARTICULARLY IN THEIR FAILURE TO PROPERLY RECEIVE AND
           OBTAIN DISCOVERY, FAILURE TO INVESTIGATE THE MERITS OF THE
           PRJVATI;: INVESTIGATOR'S INVOLVEMENT, INTERVIEW PRIOR TO
           TRIAL MULTIPLE NAMED CBILD EYEWITNESSES WITH MOST OF Tl.IE
           CHARGES WHERE EVIDENCE HAD ALREADY EXISTED TO SUGGEST
           THEY POS~ESSE.D EXCULPATORY INFORMATION OF WHICH WAS
           PROBATIVE, AND THE FAILURE TO UTJLIZE AVAILABLE DEFENSe
           EVID.ENCE, I.E.; CELL PHONE RECORDS, INFORMATION ON TBE
           PRIVATE INVESTIGATOR'S CHARACTER AND TAINT, A PRIVATE
           CRIMINAL COMPLAINED (sic) LOOGED l3Y APPELLANT'S EMPLOYER
           AGAINST, INTER ALIA, THE PRIVATE INVESTIGATOR, ELECTRONIC
           INSTANT MESSAGES FROM APPELLANT'S SON JUST PRIOR ro
           CHARGES IN THIS CASE THAT SHOW TAINT BY THE INVESTIGATOR,
           EVIDENCE OF ALIBI, AND COMCAST MOVIE RENTALS; ALL OF
           WHICH EITHER INDEPENDENTLY
                         .       .-         OR AS A WHOLE WOULD HA VE .

           BEEN VITAL IN REFUTING THE CHARGES AT TRIAL, AND TO A
           DEGREE OF PREJUDICE THAT SO UNPERMINED THE TRUTH
           DETERMINING PROCESS THAT NO RELIABLE ADJUDICATION OF
           GUILT OR INNOCENCE COULD EVER HAVE OCCURRED WITHOUT
           THE BENEFIT FOR THE JURY TO CONSIDER DEFENSE EVIDENCE NOT
     -·
41
     Docket entry 77,
42
     Docket entry ?a,
43
     Docket entry 79.
44
     Docket entry 80.
                                                   8
 OTHERWISE PRESENTED AT TRIAL?

 2.    WAS THE PCRA COURT IN ERROR WHEN IT DISMISSED
 APPELLANT'S PETITION WITHOUT AN EVIDENTIARY HEARING, AND
 DEEMED AS NOT HAVING MERIT; WBERE$Y APPELLANT LAID OUT
 IN HIS PCRA PETITWN CLAIM~ll, INFORMATION AND PROPOSED
 TESTIMONY    OF DEFENSE \V1TNESSES TO TESTIFY AT THE.
EVIDENTIARY HEAR(NQ, NONE OF WHICH WERE CONTACTEP BY
PCRA COl.JNSEL, At~D NONE OF WHICH WERE INVESTIGATED OR
CONTACTED BY PRE-TRIAL COUNSEL (MARCHEWM) OR PRE.,.
TRIAL/TRIAL COUNSEL (KLJNGERMAN), (sic) OF WHICH TESTIMONY
WOULD HAVE DEMONSTRATED THAT THE COI'4MONWEALTH
ENGAGED IN RECKLESS INTJ:'tODUCTI.ON OF A PARTICULAR LINE OF
QUESTIONING OF APPELLANT AT TRIAL REGARDING INFOfu\1ATlON
THAT WAS CLEARLY NOT SUPPORTIVE (sic) BY FACT$ AND HAD NO
OTHER PURPOSE OTHER THAN TO CONFUSE AND PREJUDICE THE
JURY; DESPITE THE CLAlM HAVING BEEN PREVIOUSLY RAISED ON
DIRECT APPEAL BUT WITHOUT THE INCLUSION OR 8ENEFIT OF THE.
LARGE VOLUME OF NEW JNFORMA TION CONTAINED IN·
APPELLANT'S PETITION REGARDlNG NEW EVJDENCE AND
TESTIMONY NOT PRESENTED AT .TRIAL OR AVAILABLE ON DIRECT
APPELLATE RREVlEW? (sic)

3.    WAS THE PCRA COURT IN ERROR.JN FAJUNG TO CONDU.CT AN
EVIDENTJARY HEARING, A.ND IN DENYING APELLANT' S CLAIM THAT
TRIAL COUNSEL WAS INEFFECTIVE _FOR FAILING TO OBJECT TO THE
,JUDGE1S PARTICIPATION WITfI DIRECT, BEHIND CLOSED DOORS
PLEA NEGOTIATIONS, IN JUDGE'S CHAMBERS, JUST PRIOR TO T.f{E
COMME.NCEM1$NT OF TRIAL ON THE MORNING OF JULY 30, 2007; ANO
fOR FAILING TO DISCLOSE THE NATURE 'or THE EX PARTE
COMMUNJCATION WHEN ASKED BY APPELLANT AT PREVIOUS
HEARINGS?

4.    WAS THij SENTENCING COURT IN ERROR WHEN MANDATORY
MINIMUM SENTENCING WAS UTILJZED IN FASHIONING HIS
SENTENCE; AND WAS DIRECT APPEAL COUNSEL INEFFECTIVE IN
FAILING TO PROPERLY RAISE THE ISSUE ON DIRECT APPEAL
DURING THE REQUIRED TIME FOR RAISING SUCH CLAIM
CONSISTENT WrTH RECENTLY DECIOED FEDERAL CASE LAW
AFFECTING MINIMUM SENTENCING IN PENNSYLVANIA?

5.   WAS PCRA COUNSEL INEFFECTIVE TN FAILlNG TO REQUEST
FORMAL DISCOVERY, AS REQUESTED IN TBE J>CRA PETITION, FOR
NOTES OF TRANSCRIPTS OF AN IN-CAMERA H~ARING CONDUCTED
IN CHAMBERS ON JUNE 12, 2007, ReLATED TO FORMER PRE.,TRIAL
COUNSEL S (MARCI-IEWKA) TERMrNATION OF REPRESENTATION
       1




                            9
              AND HIS RECUS.AL JN THIS CASE; DESPITE APPELLANT CITING
              EXCEPTIONAL ClRCUMST ANCES IN HIS PETITION?

              6.   WAS Tl-IE PCRA COURT IN EROR, AND WAS PCRA COUNSEL
              INEFFECTIVJ3 FOR F'AILING TO CONSIDER THE CUMULATJVE
              EFFECTS OF ALL THE ERRORS IN THIS CA.SE?45 .


                                                   ~~Gal J\n,a_Iy.sJs
             The trial court finds that Defendant's claims have no merit, and thus, that it did not err in

     dismissing Defendant's PCRA petition.

             The PCRA provides in p~rti,n.e~t pa.rt (hat

             (a) General. rule. -- To be eligible for relief under this subchapter, Ole petitioner
             mustplead and prove by a preponderance of the evidence all of the following:

                                                    ·*            *
                 (2) That the conviction or sentence resulted from one or more of the
                 following:

                     ·(i)       ~ violation of the Constitution of this Commonwealth or the
                         Constltution Qr laws of the United States 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.

                         (ii) Ineffective assistance of counsel which, in the circumstances of the
                         parti cular case, so undermined the truth-determining process that no
                         reliable adjudication of guilt or innocence could have taken place.

                     (iii) A plea of guilty unlawfully induced where the circumstances make it
                     likely that the inducement caused the petitioner to plead guilty and the
                     petitioner is innocent.

                     (iv) The improper obstruction ~Y government officials of the petitioner's
                     right of appeal where a meritorious appealable Issue existed and was
                     properly preserved in the trial court.

                                                     *        *       *
                     (vi) The unavailability at the time of trial of exculpatory evidence that has
                     subsequently become available and would have changed the outcome of
                     the trial if it had been introduced.
45
     Pocket entry 81 .

                                                         10
                       (vii) The imposition of a sentence greater than the lawful maximum.

                       (viii) A proceeding in a tribunal without jurisdiction
                                                                                                          46
                  (3) That the allegation of error has not been previously litigated or waived.

     Even where an issue has been "previously litigated,"47 a claim of counsel's ineffectiveness has

     been held to be a distinct legal claim, separate from the underlying issue, and thus reviewable on

     col lateral appeal. 48

             The majority of Defendant's issues ere couched in claims of ineffectiveness, so it seems

     that these issues may have not been previously litigated, as viewed by our existing laws. 49

     However, when a petitioner claims ineffectiveness of counsel, the law presupposes that counsel

     was effective.j" To overcome this presumption, a petitioner must satisfy a long-standing three-

 pronged test, and show that "(I) the underlying claim has arguable merit; (2) counsel whose

 effectiveness is being challenged did not have a reasonable basis for his or her actions or failure

 to act; and (3) the petitioner suffered prejudice as a result of that counsel's deficient

 performance.Y' Additionally, our courts have held that counsel cannot under any circumstances

 be found to be ineffective for failing to raise ameritless claim."

            The court, in an attempt to assign some order to the erratic nature of Defendant's petition,

 will address his claims one by one. The first issue in Defendant's petition asserted that counsel
was ineffective at trial, and broke this claim down into seven (7) separate, yet lengthy,

subsections. None of these issues has arguable underlying merit, counsel had fl reasonable basis


~ 42 Pa.C.S. § 9$4).
47
  Id. at § 9543(~){3).
43
     Commonwealth v, Co/li11l, S85 Pa, 45, ~7-58, ~88 A.,4cJ 564, p7 I (200,5).
49   Id.
5° C~mmonwealth v. Mason,           Pa.-....,-,> 130 A.3d 601, 61$ (2015).
51
     Commonwealth v. Callins, ;;/pra. at 61, 513 (citing Commonwealth v. Pierce, 515 Pa. I S3, S27 A.2d 973, 976-977
( 1987)) (emphasis added).                                                                            ·
52
     Commonwealth v. Jones, 571 Pa. 112, 131, 811 A.2d 994, 1005 (2002).
                                                             ll
     for the claimed inaction, and Defendant was not prejudiced by said inaction. Therefore,          the

     PCRA court properly dismissed the claim. Again,
                                               .     however, in the interest of clarity, the court
                                                                                               .


     will address each subsection individually.

             The first subsection asserted that counsel should have introduced evidence of electronic

     messages between Defendant and his stepsons that Defendant alleges would have shown the taint

     of certain witnesses against him, However, as correctly pointed out by PCRA counsel in his "no

     merit" letter, without presenting some sort of evidence ~u$gesting that additional information

     beyond what was already known would have been uncovered, a claim of ineffectiveness 01; those

     grounds will fail. 53 Since Defendant offers nothing to support the claims he makes in this regard,

    there is no merit to his claim that counsel was ineffective for failing to introduce these purported

    communications as evidence.

            The second subsection relates to the involvement of Lisa Cherish, a private investigator

 who did not testify at trial, and Defendant's claim that counsel was ineffective for failing to

 investigate that issue further. Defendant again offers little apart from speculation as to what

 would have been uncovered had counsel engaged in the additional investigation he claims should

 have been completed prior to his trial. The Superior Court has held that such a baseless claim is

 insufficient to support an assertion of counsel ineffectiveness, 54 Indeed, as stated above, without

presenting some sort of support suggesting that additional information beyond what was already

known would have been uncovered from that action} a claim of ineffectiveness on those grounds

will fail. 55

           Defendant's offers nothing but bald speculation to support what he avers could have been

uncovered by the completion of a further investigation into the matter by his trial counsel, In

n  Commonwealth v. Pursell, 555 Pa. 233, 724 A.2d 293 (1999).
54
   Commonwealth v. Tedford, 598 Pa. 639, 6,~3, 960 A,2d I, 27 (2008).
ss Commonwealth v. Pursell, supra.

                                                       12
     fact, the Superior Court addressed his assertions as they related to Ms. Cherish, in the context of

 Defendant's challenge to the trial court's denial of his application for continuance, The Superior

 Court held that there existed "no indication what Cherish would have testified to or whether she

 had any information helpful to [Defenda..nt],,,56 Therefore, as Defendant continues to offer no

 evidence to support his claim, and the issue has been determined to have no underlying merit, it

 also fails.

              The third subsection relates to purported cell phone records which Defendant asserts

 would have connected Defendant's ex-wife, Victim's mother, and Lisa ·Cherish to an extent

 which would support his claim of a conspiracy against him        to   taint witnesses. Defendant asserts

 that these parties withheld the amount of communication between them, and that he is therefore

 somehow entitled to relief, However, Defendant once again offers little to support the claim, and

the essence of the claim is belied by the record.
              Communication     between these parties was disclosed at trial through the testimony of

Victim's mother and Defendant's ex-wife. The testimony showed that these conversations

related to the interviews being conducted by the police and the contact Defendant's ex-wife had

with Lisa Cherish regarding PFA proceedings against Defendant. 57 Therefore, as evidence of

these calls was presented at trial arid the alleged contradictions in these witnesses' testimony did

not exist, Defendant's claim has no arguable underlying merit in that regard. Defendant offers no

legitimate argument as to how counsel's failure to introduce those purported records had no

reasonable basis.

              The fourth subsection asserted that trial counsel was ineffective for failing to call a

number of children as witnesses whom were alleged to have been present at the time of the some


5~
     Docket   entry 71 at 16.
57
     See IT 94-95, 356-366.
                                                     13
     of the offenses. This claim also has no merit. When claiming ineffectiveness for failing to call a

     witness, a defendant must establish that '1(1) the witness existed; (2) the witness was available to

     testify for the defense; (3) counsel knew of, 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. "58 To

     show prejudice in this regard, a defendant must "show how the uncalled witnesses' testimony

     would have been beneficial under the circumstances of the case. ,,s9 Indeed, it has been held that

     counsel cannot be found ineffective by not calling a witness to testify "unless the petitioner can

     show that the witness's testimony would have been helpful to the defense.t''"

            Here, Defendant asserts that counsel was ineffective for failing to call minor children

     who were present in Defendant's home on some of the occasions when Defendant assaulted

     Victim. Defendant claims that these children, had they been called as witnesses, would have

 testified that they never saw Defendant assault Victim. However, this testimony would not have

 been of any help to the defense because it was never disputed that these other children did not ~

 actually see the sexual assaults occur. Indeed, it was established that on two of the occasions,

 these other children were focused on the television in the room, rather than Defendant and

 Victim, and on the third occasion, none of the children were present." It is clear that counsel was

 reasonable in determining that having multiple children testify to something that was already

 established would not have been helpful to the defense, and thus, counsel could not be

ineffective for failing to call those witnesses.


58
   Commonwealth v. Johnson, 600 Pa. 329, 351, 966 A.2d 523, 536 (2009) (quoting Commonwealth v. Washington,
592 Pa. 698, 927 A.2d 586, 599 (2007)).                                     .
59
   Id. at 351-357, 536 (quoting Commonwealth v, Gibson, 591 Pa. 402, 95 l A.2d 1110, 1134 (2008)).
60
   Commonwealth v. Sneed, 616 Pa. I, 23, 45 A.3d 1096, 1109 (citing Commonwealth v. Auker, 545 Pit. 521, 681
A.2d 1305, 1319(1996)).
61
  See IT 230·245.

                                                     14
             Defendant also suggests here that counsel was ineffective for failing to investigate these

     witnesses further in addition to failing to call them as witnesses. However, Defendant fails to

     mention that these witnesses were interviewed by the Child Advocacy Unit at Children's

     Hospital, as well as at the Washington County Children's Advocacy Unit, and that counsel

     possessed and had reviewed the transcripts of these interviews. Defendant does not posit any

     additional facts or information which could have arisen from any further investigation into these

     child witnesses, other than the assertion that they would have testified to having pot seen the ~

     offenses occur. As addressed above, this is inadequate to show that counsel was ineffective, and
     thus Defendant's claim also fails in this regard.

            The fifth subsection of Defendant's first issue asserted that counsel was ineffective for

     failing to present certain pieces of evidence which he claimed constitute an alibi defense.

     Specifically, he claims that certain receipts and cell phone call data would have shown that he

     was either in a different location at the time of the events, or using his phone at the time rather

 than sexually assaulting Victim.

            "To show ineffectiveness for failing to present alibi evidence, [Defendant] must establish

 that counsel could have no reasonable basis for his act or omission."62 Defendant's petition

 offers no such proof As there was no specific date and time stated at trial for when these assaults

 occurred, and Defendant admitted to having been in the room watching movies with Victim and

 other children when Victim stated that two of the assaults occurred, entering receipts and phone

records as evidence to "narrowj] the dates and times for which the alleged assaults were

described [sic] and ... place]'] Defendant in other locations where some of the alleged assaults
                                                                         ~
were to have happened [sicr63 would not have established anything that was not already known


~2   Commonwealth v. Rainey, 593 Pa. 67, 98, 928 A.2d 215, 234 (2007),
63
     Pocket entry 72 at 54.

                                                         15
     at trial, and would not have provided a legitimate alibi for Defendant, Therefore, it cannot be

     said that counsel had "no reasonable basis''64 for not pursuing this theory, and thus this claim

     also has no merit.

              TQe sixth subsection of Defendant's first issue asserted that counsel was ineffective for

     failing to present Comcast cable invoices allegedly showing that pornographic films were rented

     op his ex-wife's account and that this was relevant to discredit her testimony, However, there is

     no merit to this claim, counsel could reasonably have determined that this claim had no relevance

     to the case even if         them were some proof the evidence. existed, and Defendant offers no
     argument which shows how he was prejudiced by counsel's foiling to present this evidence,

     other than a bald assertion that it could have· somehow discredited his ex-wife's testimony

     against him. 65 Therefore, this claim also has no merit.

             The seventh and final subsection of Defendant's first claim asserted tlw.t counsel was

 ineffective for failing to adequately present his motion to suppress evidence obtained from his

 private computer by hJ~ ex ..wife, Although it is couched in an ineffectiveness claim, this claim

 also fails as the underlying issue of the suppression has already peen addressed by the Superior

 Court on direct appeal, which affirmed that the Information from that computer was both

 relevant arid admj~~j\Jle.~<> Therefore, since the. underlying claim has no arguable merit, counsel

could not have been ineffective in that regard, and thus this claim also fails.

            In his second issue, Defendant claimed that counsel was ineffective at trial for failing to

"protect" him during cross-examination and object to certain lines of questioning from the

Commonwealth. This claim also has no underlying merit, and Defendant was not prejudiced by

the claimed inaction of counsel. Therefore, the PCRA court properly dismissed the claim,

64
     Commonwealth v. Rainey, supra.
6~   Commonwealth v, Collins, supra,
6?
     Docket entry 71 at 19-Z~.

                                                      16
              Again, to establish ineffectiveness of counsel, Defendant must prove that the underlying

     claim has arguable merit, counsel had no reasonable basis for her action or inaction, and

     Defendant was prejudiced as a result.67 As with the seventh section of Defendant's        first claim,

     although Defendant couches this claim in terms of ineffectiveness, the underlying issue was

     already addressed by the Superior Court, In Its opinion, the Superior Court held that the Jines of

     questioning to which Defendant now takes exception were relevant and proper at that time.68

     Therefore, it is clear that the underlying claim has no arguable merit, and thus, counsel could not

     be ineffective based on Defendant's second claim.

              Defendant's third issue asserted that trial counsel was ineffective for failing to object to

     the trial court's alleged involvement in plea negotiations, and tha.t counsel failed to protect his

     right to a fair trial after attorney Marchewka spoke to the trial judge in relation to bis ethical

     conflict and desire to withdraw as counsel. Again, these assertions have no underlying merit, and

 Defendant suffered no prejudice as the result of the alleged inaction from counsel, and thus, the

 court properly dismissed the claim.

             As Defendant did not enter a guilty plea in this case, nothing involving his alleged plea

 negotiations       could rise to the level of prejudice. Defendant suggests that the circumstances

 leading to Attorney Marchewka's withdrawal and the trial court's alleged "involvement with

plea negotiations't'"         show that the court was not impartial in his case, and that counsel was

ineffective for failing to challenge the court on this matter. However, Defendant offers no

examples where the court showed any partiality, other than in denying his motion for a

continuance, which was also determined by the Superior Court to have been proper. 70 Therefore,



Q?   Commonwealth v. Collins, supra.
68
     Docket entrv 71 at I 6, 19.
69
     Docket entry 72 at 75,
10
     Pocket entry 71 at 16.
                                                      17
     as the underlying claim. has no merit and Defendant suffered no prejudice, Defendant's third

     claim was properly dismissed,

             In his fourth issue, Defendant claimed that his sentence was illegal due to the court

     issuing a mandatory minimum sentence and due to the sentence being influenced by what

     Defendant asserted as being inappropriate and incorrect aggravating factors." Defendant cited to
                                                                                                   72
  a case captioned Commonwealth v. Hopkins in his petition to support this claim,                       In reference to

  the "mandatory minimum" sentence claimed by Defendant, the court assumes that Defendant

 was asserting that he was given a mandatory minimum sentence, and that such a sentence was

· rendered unconstitutional by the United States Supreme Court decision ill. Alleyne v. United

 States13 and its progeny, and that this qualifies him for some relief. This argument fails for

 several reasons. First, the court did not impose a mandatory sentence on any of the charges, but

 rather imposed consecutive sentences within tile aggravated sentencing guideline range, based on
                                                                                                                       74
 the specific circumstances of the instant case, which the Superior Court held to be appropriate.

 Second, even if the court had imposed a mandatory sentence in this case, the 2013 decision in

Alleyne was held to not apply retroactively to prior sentences? and thus would not apply to
 Defendant's 2007 sentence,

            In regard to Defendant's alternative assertion that the court relied on improper

aggravating factors in fashioning its sentence, this claim is also without merit. As PCRA counsel

correctly stated in his "no merit" letter, this is a challenge to the discretionary                        aspects of

11
   Defendant also asserts in bi.s ) 925(b) statement that appellate counsel was ineffective for failing to raise the
sentencing issue on direct appeal. This claim was not included in Defendant's original petition and is therefore
waived, Pa. R.A.P., Rule 302(a).
72
   It appears that the case referenced by Defendant is Commonwealth v. Hopkins, 632 Pa. 36, 117 A.3d 247 (2015),
which held that a mandatory minimum sentence for trafficking drugs to minors ran afoul of the Constitutional
protections identified in Alleyne v. U.S.
73_.
         u.s._...,.J   J33~.ct.2l5J,   1~6L.Ed.314(20l3).
74
   See docket entry 71.
75 See Commonwealth v. Washington,_ Pa. __ , 142 A.3d 810 (2016). See also U.S. v. Winkleman, 746 F.3d 134

(3d Cir, 2014).                          . .

                                                            18
 Defendant's sentence, and is not cognizable in a PCRA proceeding." Additionally, the Superior

 Court already addressed the propriety of Defendant's sentence in its January 27, 2014 opinion,

 and found that the sentencing court committed no error in that regard.77 Therefore, neither of

 Defendant's bases for claiming he received an illegal sentence has merit. It thus follows that

 even as a cognizable ineffectiveness claim, it has no underlying arguable merit, and counsel

 could not be ineffective for failing to raise the claim even had the ineffectiveness claim not been

 waived."
                                                          79
         In the fifth claim in his l 925(b) statement,         Defendant asserted that trial counsel was

 ineffective for failing to request discovery in relation to attorney Marchewka's withdrawal as

 counsel. The court finds that this claim was not raised in Defendant's petition, and is therefore

· waived. so Even had it been raised in the petition, once again, this claim has no underlying merit,

 and Defendant suffered no prejudice as a result of counsel's inaction in this regard. Therefore,

 the court properly dismissed the claim.

         Once more, as stated above, to prevail on a claim of ineffectiveness, the Defendant must

 prove that the underlying claim has arguable merit, that counsel did not have a reasonable basis

 for the action or inaction, and that the action or failure to act resulted in prejudice to the

 Defendant.f Here, there is no merit to Defendant's underlying claim, and he suffered no

 prejudice, It is unclear what Defendant would claim as the prejudice he suffered other than

 perhaps again raising the issue of the denial of his continuance motion or his assertion that

 Attorney Clingerman was ineffective for any of the above reasons. However, since counsel was


76Commonwealth v, Wrecks, 934 A.2d 1287, 12~9 (Pa. Super. 2007)(citing Commonwealth v. Friend, 896 A.2d
607, 616 n. 15 (Pa. Super. 2006)).
77
   Docket entry 71.
7$
   Commonwealth v, Mason, supra.
79
   Docket entry 8) ,
80
   Pa.R.A.P., Rule 302(a).
81
   Commonwealth v. Collins, supra.

                                                    19
 effective and Defendant suffered no prejudice based 011 Attorney Clingerman's representation, it

 follows that this claim would also have no merit even had it been properly raised in his petition.

        Finally, Defendant asserted in what was the fifth claim of his petition and the sixth claim

of his 192S(b) statement that he is entitled to a new trial due to the "cumulative nature of the

errors in this case," This assertion, as with Defendant's prior issues, has no merit, and thus, the

court properly dismissed the claim. A$ there is no merit in any of Defendant's individual claims,

it follows that the claims taken cumulatively would also have no merit. Defendant received a fair

trial and a legal sentence, and counsel provided effective representation throughout the process.

Therefore, Defendant's final claim is also meritless,

        FQr the masons set forth, the trial court submits that Defendant failed to prove that he is

entitled to relief under the Post Conviction Relief Act. The court therefore submits that the denial

of Defendant's PCRA petition should be affirmed.




Date:




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