J-S39026-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

MICHAEL WILLIS

                            Appellant                No. 2766 EDA 2014


                 Appeal from the Order Entered August 22, 2014
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-1000571-2005


BEFORE: BOWES, J., OTT, J., and MUSMANNO, J.

MEMORANDUM BY OTT, J.:                               FILED October 6, 2015

        Michael Willis appeals the order entered August 22, 2014, in the

Philadelphia County Court of Common Pleas denying his first petition filed

pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S. § 9541 et seq.

Willis seeks relief from the judgment of sentence of an aggregate 10 to 20

years’ imprisonment, imposed on March 16, 2007, following his jury

conviction of robbery and possession of an instrument of crime (“PIC”). 1 On

appeal, Willis argues the PCRA court erred in denying his claim of

ineffectiveness of counsel without first conducting an evidentiary hearing.

For the reasons that follow, we affirm.


____________________________________________


1
    18 Pa.C.S. §§ 3701(a)(1) and 907(a), respectively.
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     The relevant facts and procedural history were summarized by the

Pennsylvania Supreme Court in a prior appeal as follows:

     At approximately 2:15 a.m. on April 29, 2005, David Thomas
     was walking along 6th Street in Philadelphia when two men
     approached him and pushed him. One of the men pulled a gun
     from his pocket and pointed it at Thomas’ face, telling Thomas
     “give us your money or we’ll blow your head off.” N.T. Trial,
     10/31/06, at 46–47. Thomas gave the gunman approximately
     $40, and his assailants then fled. Although it was dark at the
     time of the incident, Thomas was able to see his assailants by
     the light of the streetlamps. Id. at 45–46, 68.

            Approximately one hour later, after returning home,
     Thomas called the police to report what had happened. When
     the police arrived at Thomas’ home, he initially told them he
     would be unable to identify the men who robbed him because he
     was nervous and overwhelmed. Eventually, however, he gave
     police a description, describing the man with the gun as between
     5′9″ and 6′ tall, with dark skin and a goatee, and wearing a
     puffy black coat. Thomas described the other man as light-
     skinned, clean-shaven, and wearing tan pants and a hockey
     jersey. At approximately 4:15 am., Thomas accompanied the
     officers to the police station, where he gave a formal statement
     and description.

            Nearly two weeks later, on May 12, 2005, police again
     went to Thomas’ house and showed him a photo array of eight
     individuals. From the photo array, Thomas identified Michael
     Willis … as the gunman who had robbed him. Thereafter, Willis
     and his accomplice, Richard Peoples, were arrested and charged
     with robbery and [PIC]. On August 17, 2005, Thomas picked
     Willis out of a line-up, again identifying Willis as one of his
     attackers. Thomas also identified Willis as the gunman both at
     his preliminary hearing on August 18, 2005, and at trial.

            On November 1, 2006, Willis was convicted by a jury of
     the aforementioned charges. Prior to sentencing, Willis filed a
     motion challenging the verdict as against the weight and
     sufficiency of the evidence. Willis also filed a motion for a new
     trial on the basis of an alleged Brady violation by the
     Commonwealth. Specifically, Willis alleged that Peoples had
     made a deal with the Commonwealth prior to trial, whereby he


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     agreed to plead guilty to certain unrelated charges in exchange
     for the Commonwealth’s nolle pros of certain other charges,
     including the robbery of Thomas. Willis averred that, in the
     course of his discussions with police, Peoples indicated that he
     committed the Thomas robbery with someone other than Willis,
     namely, a man named Robert Richardson a/k/a Woodard
     (hereinafter “Woodard”).     The statement was inadvertently
     omitted from documents produced by the Commonwealth prior
     to trial, and was discovered by the prosecutor in her file
     following trial. The statement was brought to the trial court’s
     attention, and the court offered to allow the victim to view
     another photo array containing a photo of Woodard, but Willis’
     counsel refused.

            Peoples was subpoenaed to testify at a hearing on Willis’
     Brady claim, but was not transported from state prison to court
     because, according to a statement made by the prosecutor to
     the trial judge at the hearing, Peoples’ attorney told the
     prosecutor that he would advise Peoples to invoke his Fifth
     Amendment rights and refuse to testify regarding the robbery.
     Willis’ counsel did not object to the prosecutor’s statement, nor
     did she request that Peoples be brought to court to confirm on
     the record that he would invoke the Fifth Amendment if asked to
     testify about the robbery.

            In his opinion for the trial court, the Honorable Glenn B.
     Bronson acknowledged that Peoples’ statement, which identified
     someone other than Willis as the person who robbed Thomas,
     “plainly was exculpatory and should have been provided to the
     defense.”     Commonwealth v. Willis, CP–51–CR–1000571–
     2005, unpublished memorandum at 5 (Phila. Cty. filed Sept. 4,
     2007). Nevertheless, the trial court concluded that Peoples’
     statement was not material within the meaning of Brady
     because disclosure of the statement could not have affected the
     outcome of the case. Specifically, the trial court reasoned that
     Peoples’ out-of-court statement was inadmissible hearsay, and
     that, based on the prosecutor’s statement that Peoples’ attorney
     told her he would advise Peoples not to testify, Peoples’
     statement would never have been introduced to the jury. In
     addition, the trial court noted “the evidence at the hearing
     established that Woodard did not resemble [Willis], thereby
     making it improbable that the complaining witness confused
     [Willis] for Woodard and made a misidentification.” Id. at 6.
     Accordingly, on March 16, 2007, the trial court denied Willis’
     motion for a new trial based on the Commonwealth's alleged

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        Brady violation, and sentenced Willis to an aggregate term of 10
        to 20 years incarceration.[2]

              Following the denial of his post-trial motions, Willis
        appealed his judgment of sentence to the Superior Court. On
        May 14, 2008, the Superior Court vacated Willis’ judgment of
        sentence and remanded for a new trial. Commonwealth v.
        Willis, 1024 EDA 2007, unpublished memorandum, 954 A.2d 44
        (Pa. Super. filed May 14, 2008). In doing so, the Superior Court
        relied on [the Supreme] Court’s decision in Commonwealth v.
        Green, [640 A.2d 1242 (Pa. 1994)], for the proposition that
        Brady does not require an analysis of the admissibility of
        evidence before such evidence can be deemed material.
        Specifically, the Superior Court noted that Peoples’ statement
        “goes directly to the potential innocence of Willis;” that there
        was no proof that Peoples would have refused to testify; and
        that, “even if the statement were not admissible, it is not the
        Commonwealth’s role to determine how defense counsel shall
        use such evidence.” Willis, 1024 EDA 2007, at 6.

Commonwealth v. Willis, 46 A.3d 648, 651-652 (Pa. 2012).

        Thereafter, the Commonwealth petitioned the Pennsylvania Supreme

Court for review. The Court granted the appeal, and, on May 30, 2012, in a

plurality decision,3 reversed the decision of this Court and reinstated Willis’

judgment of sentence. Id. In the Opinion Announcing the Judgment of the

Court (“OAJC”), Justice Todd, joined by Justice Baer, held that “nondisclosed
____________________________________________


2
  Because Willis’ robbery conviction was his second conviction of a crime of
violence, the trial court imposed a mandatory minimum sentence, pursuant
to 42 Pa.C.S. § 9714(a)(1), of 10 to 20 years’ imprisonment for the robbery
count, and a concurrent term of one and one-half to three years’ for the PIC
count. See N.T., 3/16/2007, at 13-14, 25-26. We note the mandatory
minimum sentencing provision at Section 9714 does not implicate the United
States Supreme Court’s decision in Alleyne v. United States, 133 S.Ct.
2151, (U.S. 2013). See Commonwealth v. Reid, 117 A.3d 777, 785 (Pa.
Super. 2015).
3
    All of the Justices agreed the decision of this Court was incorrect.



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favorable evidence which is inadmissible at trial may be considered material

for purposes of Brady, as long as there is a reasonable probability that, had

the evidence been disclosed to the defense, the result of the proceeding

would have been different.” Id. at 650. Further, Justice Todd emphasized

that   to   satisfy   the   “reasonable        probability”   standard,   “a   defendant

necessarily must identify specific evidence or information that would have

been uncovered, and explain how that evidence or information would have

changed the result of the proceeding.” Id. at 670. Nevertheless, because

Justice Todd concluded Willis failed to “establish there was a reasonable

probability that, had the evidence withheld by the Commonwealth been

disclosed, there would have been a different outcome at trial,” she reversed

the order of this Court and reinstated Willis’ judgment of sentence. Id.

       In a Concurring Opinion, then Chief Justice Castille, joined by Justices

Eakin and McCaffery, agreed Willis failed to prove “the undisclosed evidence

at issue satisfied the materiality standard established by Brady v.

Maryland, 373 U.S. 83 (1963), and its progeny.”                 Id. at 674 (Castille J.,

Concurring). However, Justice Castille disagreed with the OAJC’s discussion

of and reliance on the Supreme Court’s prior decision in Green, supra.4
____________________________________________


4
  In Green, the Supreme Court reversed the defendant’s death sentence for
the murder of a police officer and remanded for a new trial based upon a
Brady violation. Green, supra, 640 A.2d at 1243. Specifically, the Court
found the Commonwealth failed to disclose to the defense an exculpatory
statement by a witness who claimed that after the murder, Green’s co-
defendant told him she had killed a cop. Id. at 1244. The Court determined
(Footnote Continued Next Page)


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Similarly, in another concurring opinion, Justice Saylor joined in the OAJC,

except for its treatment of Green, supra, which he described as “too cryptic

to provide a useful platform for clarification.”   Id. at 684-685 (Saylor, J.,

Concurring).



                       _______________________
(Footnote Continued)

the statement was relevant and material to the both the guilt and penalty
phases of the trial. Specifically, with regard to the guilt phase, the Court
opined:

      First, [the witness’s] statements to the police in no way
      implicated [Green] in the murder. Instead, they implicated only
      [his co-defendant].       Moreover, knowledge of [the co-
      defendant’s] statement to [the witness] certainly would have
      opened another avenue of investigation for the defense that may
      well have led to further exculpatory evidence. Had the defense
      been aware of [the witness’s] statements, it may also have
      altered its trial strategy, especially in regards to [Green’s]
      decision not to testify since [the witness’s] statements were
      consistent with [Green’s] own statements to the police.

Id. at 1245-1246. Further, the Court concluded that the United States
Supreme Court’s decision in Brady “in no way mandates that the
[undisclosed] evidence first be admissible before it can be deemed ‘material’
to the defense.” Id. at 1246.

      In his Concurring Opinion in Willis, Chief Justice Castille took issue
with the Green Court’s holding that “[i]n determining the materiality of the
omitted evidence we must, therefore, consider any adverse effect that the
prosecutor’s failure to disclose might have had on not only the presentation
of the defense at trial, but the preparation of the defense as well.”
Willis, supra, 46 A.3d at 674 (Castille, C.J., Concurring) (emphasis in
original and citation omitted). Rather, the Chief Justice stated he would
overrule Green, and require “that the derivative, admissible evidence be
specifically identified, with an explanation of why it is difference-making
under the reasonable probability standard.” Id. at 684 (Castille, C.J.,
Concurring).



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       Thereafter, on July 28, 2012, Willis filed a timely, pro se PCRA petition.

Counsel was appointed, and filed an amended petition on February 11,

2014, which (1) challenged the ineffective assistance of all prior counsel for

failing to properly preserve the issue of materiality with respect to his Brady

claim, and (2) requested permission “to subpoena Peoples to the Courtroom

so that the PCRA Court could determine, once and for all, whether Peoples is

a viable witness.” Amended Post Conviction Relief Act Petition, 2/11/2014,

at 9-10.     In response, the Commonwealth filed a motion to dismiss the

petition.

       On May 5, 2014, the PCRA court sent Willis notice, pursuant to

Pa.R.Crim.P. 907, of its intent to dismiss his petition without first conducting

an evidentiary hearing. Willis submitted a pro se response, and, on August

22, 2014, the court dismissed his PCRA petition.              This timely appeal

followed.5

       On appeal, Wilis focuses his claim on the PCRA court’s failure to grant

him an evidentiary hearing.            Specifically, he asserts trial counsel was

ineffective when she declined the trial court’s offer to show a photo array to

the victim, which included a photo of Woodard, the “real” co-conspirator

according to Peoples’ police statement. Willis claims “that was the only way
____________________________________________


5
  On September 23, 2014, the PCRA court ordered Willis to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
Willis complied with the court’s directive and filed a concise statement on
October 15, 2014.



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to have demonstrated that the Brady exclusion was material.” Willis’ Brief

at 13. Rather, he argues, counsel “took a chance of winning on a procedural

right … where there was no real reason to believe that the right would be

vindicated.”      Id.   Further, Willis contends the PCRA court should have

granted him permission to subpoena Peoples.                  He states, “If the witness

Peoples would not be claiming a Fifth Amendment privilege, he would be

available to the defense.” Id. To that end, Willis also requested assistance

from the District Attorney’s Office to provide “at the very least, the last

known address for Peoples.” Id. at 14.

      When reviewing an order dismissing a PCRA petition, we must

determine whether the PCRA court’s findings of fact are supported by the

record,     and    whether      its   legal    conclusions     are    free    from     error.

Commonwealth v. Spotz, 84 A.3d 294, 311 (Pa. 2014). “Great deference

is granted to the findings of the PCRA court, and these findings will not be

disturbed    unless     they    have     no     support   in    the   certified      record.”

Commonwealth v. Carter, 21 A.3d 680, 682 (Pa. Super. 2011) (citation

omitted).

      Where,      as    here,   the    claims    raised   on    appeal       challenge   the

effectiveness of counsel, our review is well-settled:

      We begin our analysis of ineffectiveness claims with the
      presumption that counsel is effective.       To prevail on his
      ineffectiveness claims, Appellant must plead and prove, by a
      preponderance of the evidence, three elements: (1) the
      underlying legal claim has arguable merit; (2) counsel had no
      reasonable basis for his action or inaction; and (3) Appellant
      suffered prejudice because of counsel’s action or inaction. With

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      regard to the second, i.e., the “reasonable basis” prong, we will
      conclude that counsel’s chosen strategy lacked a reasonable
      basis only if Appellant proves that “an alternative not chosen
      offered a potential for success substantially greater than the
      course actually pursued.”       To establish the third, i.e., the
      prejudice prong, Appellant must show that there is a reasonable
      probability that the outcome of the proceedings would have been
      different but for counsel’s action or inaction.

Commonwealth v. Spotz, 18 A.3d 254, 259-260 (Pa. 2011) (internal

citations omitted). “Failure to establish any prong of the test will defeat an

ineffectiveness claim.”   Commonwealth v. Keaton, 45 A.3d 1050, 1061

(Pa. 2012) (citations omitted).

      Further, with regard to a petitioner’s right to an evidentiary hearing, it

is well-settled that:

      The PCRA court has the discretion to dismiss a petition without a
      hearing when the court is satisfied “that there are no genuine
      issues concerning any material fact, the defendant is not entitled
      to post-conviction collateral relief, and no legitimate purpose
      would be served by further proceedings.” Commonwealth v.
      Paddy, 609 Pa. 272, 15 A.3d 431, 442 (2011) (quoting
      Pa.R.Crim.P. 909(B)(2)). “To obtain reversal of a PCRA court’s
      decision to dismiss a petition without a hearing, an appellant
      must show that he raised a genuine issue of fact which, if
      resolved in his favor, would have entitled him to relief, or that
      the court otherwise abused its discretion in denying a hearing.”
      Id. (quoting Commonwealth v. D'Amato, 579 Pa. 490, 856
      A.2d 806, 820 (2004)).       We stress that an evidentiary
      hearing “is not meant to function as a fishing expedition
      for any possible evidence that may support some
      speculative claim of ineffectiveness.” Commonwealth v.
      Jones, 571 Pa. 112, 811 A.2d 994, 1003 n. 8 (2002) (citation
      omitted). In Jones, we declined to remand for an evidentiary
      hearing when the appellant merely asserted that counsel did not
      have a reasonable basis for his lack of action but made no
      proffer of evidence as to counsel’s lack of action.




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Commonwealth v. Roney, 79 A.3d 595, 604-605 (Pa. 2013) (emphasis

added), cert. denied, 135 S. Ct. 56 (U.S. 2014). Indeed, “if the court can

determine without an evidentiary hearing that one of the [ineffectiveness]

prongs cannot be met, then no purpose would be advanced by holding an

evidentiary hearing.”   Commonwealth v. Jones, 942 A.2d 903, 906 (Pa.

Super. 2008), appeal denied, 956 A.2d 433 (Pa. 2008).

      Here, the PCRA court concluded that Willis failed to establish both the

reasonable basis and prejudice prongs of his ineffectiveness claim. First, the

court determined Willis failed to demonstrate trial counsel had no reasonable

basis for declining the trial court’s offer to show a second photo array to the

victim, which included a photo of Woodard. Rather, the PCRA court found

counsel had an “eminently reasonable strategy,” concluding it “would not

have been fair to [Willis] to allow the victim to view a photo array with [his]

photo in it” since the victim had already identified Willis “on a number of

occasions and was in his presence during court proceedings.” PCRA Court

Opinion, 12/11/2014, at 6.    Instead, counsel chose to argue on appeal that

“the trial court incorrectly interpreted the law governing the materiality

requirement for Brady violations.”    Id.    The PCRA court emphasized this

strategy was at least initially successful, since the Superior Court granted

Willis a new trial. Id. Second, the PCRA court determined Willis failed to

demonstrate he was prejudiced by counsel’s actions. Specifically, the court

found Willis failed to establish that, had the victim been shown the photo

array with Woodard in it, he would have identified Woodard as the gunman.

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Id.   The court also noted that evidence presented during the post-trial

hearing “established that Woodard did not resemble the defendant, thereby

making it improbable that the complaining witness confused the defendant

for Woodard and made a misidentification.” Id. at 7, citing N.T., 2/16/2007,

at 12.

         We agree with the conclusion of the PCRA court that Willis failed to

demonstrate his right to relief.    First, as noted by the PCRA court, trial

counsel had a reasonable strategic basis for her decision to forgo a second

photo array.      The victim had already identified Willis on a number of

occasions both prior to and during trial, and a second photo array would be

superfluous.     As such, counsel’s decision to focus on the trial court’s

purported error of law was reasonable. Moreover, we agree that Willis failed

to demonstrate he was prejudiced by counsel’s omission. Indeed, counsel’s

failure to accept the trial court’s offer to show the victim a second photo

array would be prejudicial only if the victim identified Woodard, rather than

Willis, as his attacker. Therefore, Willis’ failure to plead in his PCRA petition

that the victim would provide such testimony at a hearing defeats his claim.

Accordingly, we find no abuse of discretion on the part of the PCRA court in

denying Willis’ ineffectiveness claim without first conducting an evidentiary

hearing.

         Willis also asserts the PCRA court should have conducted an

evidentiary hearing, and permitted him to subpoena Peoples “so that the

PCRA court could determine, once and for all, whether Peoples is a viable

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witness.”    Willis’ Brief at 13.     Willis does not aver, however, that Peoples

would provide any testimony helpful to his defense.6 See id. at 13-14 (“If

the witness Peoples would not be claiming a Fifth Amendment privilege, he

would be available to the defense”) (emphasis added).           We remind Willis

“that an evidentiary hearing ‘is not meant to function as a fishing expedition

for any possible evidence that may support some speculative claim of

ineffectiveness.’”      Roney, supra, 79 A.3d at 605 (citation omitted).

Therefore, Willis’ failure to establish that Peoples may be a viable witness

who could provide exculpatory testimony defeats his claim.

____________________________________________


6
   We note that Section 9545(d) requires a petitioner requesting an
evidentiary hearing to include “a signed certification as to each intended
witness stating the witness's name, address, date of birth and substance of
testimony and shall include any documents material to that witness's
testimony.” 42 Pa.C.S. § 9545(d)(1). Although the failure to include a
certification is fatal to the claim, this Court has refused to “affirm a PCRA
court's decision on the sole basis of inadequate witness certifications where
the PCRA court did not provide notice of the alleged defect.”
Commonwealth v. Pander, 100 A.3d 626, 642 (Pa. Super. 2014), appeal
denied, 109 A.3d 679 (Pa. 2015). Further, when a PCRA court has not
provided a petitioner with the opportunity to amend his petition to comply
with section 9545(d)(1), and the petitioner’s claim “potentially has arguable
merit,” we have remanded the matter to provide the petitioner the
opportunity to comply with the statute and secure an evidentiary hearing.
Commonwealth v. Lippert, 85 A.3d 1095, 1101 (Pa. Super. 2014), appeal
denied, 95 A.3d 277 (Pa. 2014). We decline to remand the matter in the
present case because (1) it is evident Willis is only speculating that the
substance of Peoples’ proposed testimony, and (2) as noted supra, his claim
fails on the merits.




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     Nevertheless, the PCRA court explained that even assuming Peoples

were available to testify, Willis failed to demonstrate Peoples’ testimony

“would have changed the outcome of the trial if it had been introduced.” 42

Pa.C.S. § 9543(a)(vi). The court opined:

     Here, the evidence demonstrates clearly that Peoples[’]
     testimony would, on balance, strengthen, rather than weaken,
     the Commonwealth’s case. It is true, … that Peoples stated that
     he committed the Thomas robbery with Woodard. However, if
     Peoples were called as a witness for the defense, the remainder
     of his statement would become admissible to impeach his
     recollection of that robbery. In particular, Peoples stated that he
     had committed too many robberies to count, that [Willis] was his
     accomplice in at least four of these robberies, and that [Willis]
     possessed the weapon that was used to threaten the robbery
     victims on three of those four occasions. Peoples covered 17
     specific robberies in his statement, all in the area where Peoples
     lived. Given the extensive number of robberies committed by
     Peoples, and the strength of Thomas’ repeated identification of
     [Willis] as one of his assailants, it is extremely likely that the
     jury would have concluded that Peoples was simply confusing
     one robbery with another. Indeed, the Court cannot imagine
     any reasonable factfinder, after hearing Peoples’ statement,
     concluding that Thomas was in error, and it was merely a
     coincidence that Thomas identified [Willis] as the robber when,
     according to Peoples, [Willis] had committed four other armed
     robberies with Peoples in the same general area. On balance,
     the inculpatory effect of identifying [Willis] as the perpetrator of
     four armed robberies in the area would outweigh the exculpatory
     effect of Peoples thinking that Woodard was his accomplice on
     the night Thomas was robbed.

PCRA Court Opinion, 12/11/2014, at 8-9. We find no reason to disagree.




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       Accordingly, because we conclude Willis has failed to establish the

PCRA court abused its discretion in denying his petition without first

conducting an evidentiary hearing, we affirm the order on appeal.7

       Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/6/2015




____________________________________________


7
   To the extent Willis argues the court erred in granting relief “on the
papers,” we conclude that such claim is waived. Willis’ Brief at 14. Willis
asserts, in a three-sentence conclusory paragraph, (1) his first claim was
“properly briefed” in his “Amended Post Conviction Relief Act Brief[;]” (2) he
was entitled to relief “[o]n the papers[;]” and (3) the PCRA court “had no
good legal reason for the denial of such relief[.]” Id. Therefore, he claims
he is entitled to a new trial. This argument, which contains no analysis or
citation to authority, is insufficient to warrant relief. See Commonwealth
v. Spotz, 896 A.2d 1191, 1250 (Pa. 2006) (“[B]oilerplate, undeveloped
argument respecting the ineffectiveness of all prior counsel is insufficient to
establish an entitlement to post-conviction relief.”).        Moreover, as we
explained with regard to the first claim, Willis has failed to demonstrate trial
counsel provided ineffective assistance.




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