J-S40019-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA


                   v.

GERRY BURNS

                        Appellant                   No. 393 EDA 2015


             Appeal from the PCRA Order December 29, 2014
           In the Court of Common Pleas of Philadelphia County
           Criminal Division at No(s): CP-51-CR-0802891-2005


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

MEMORANDUM BY SOLANO, J.:                         FILED AUGUST 19, 2016

     Appellant, Gerry Burns, appeals from the order denying his petition for

relief filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§

9541-9546. We affirm.

     On December 21, 2006, a jury convicted Appellant of involuntary

deviate sexual intercourse, sexual assault, aggravated indecent assault, and

indecent assault. On March 29, 2007, the trial court, Hon. Lillian Ransom,

sentenced Appellant to an aggregate 80 to 160 months’ incarceration. The

PCRA court summarized the subsequent procedural posture as follows:

                 A post sentence motion was timely filed on
           April 5, 2007, and denied by operation of law on
           August 3, 2007. On August 14, 2007, Appellant filed
           a timely Notice of Appeal. On September 18, 2007,
           th[e trial c]ourt ordered Appellant to file a concise
           statement of matters complained of on appeal,
           pursuant to Pa.R.A.P. 1925(b). On October 9, 2007,
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              Appellant filed a timely 1925(b) statement.    An
              Opinion was filed on January 11, 2008.         On
              December 31, 2009, the Superior Court affirmed
              Appellant’s judgment of sentence. A Petition for
              Allowance of Appeal was filed in the Supreme Court
              on February 1, 2010, and was subsequently denied
              on September 14, 2010.

                    On March 7, 2011, Appellant filed a timely pro
              se PCRA Petition and J. Matthew Wolfe, Esquire, was
              appointed counsel on July 7, 2011. A motion for
              continuance was granted on December 15, 2011. On
              July 9, 2013, counsel filed an Amended PCRA Petition
              on Appellant’s behalf. The Commonwealth filed a
              Motion to Dismiss on September 24, 2014.         On
              November 25, 2014, th[e PCRA c]ourt filed a
              Dismissal Notice pursuant to Rule 907.           On
              December 29, 2014, Appellant’s PCRA petition was
              formally dismissed by th[e PCRA c]ourt.

                     Appellant filed a timely Notice of Appeal … .[1]
              On February 4, 2015, th[e PCRA c]ourt ordered
              Appellant to file a concise, self-contained and
              intelligible statement of matters complained of on
              appeal pursuant to Rule 1925(b) of the Pennsylvania
              Rules of Appellate Procedure.        A timely 1925(b)
              statement was filed on February 24, 2015.

PCRA Court Opinion, 6/25/15, at 1-2.

____________________________________________


1
  Although the trial court docket indicates that the notice of appeal was filed
on January 30, 2015, our review of the certified record shows that the notice
of appeal is stamped “FILED Jan 22 2015 Criminal Appeals Unit First Judicial
District of PA.” Moreover, Appellant filed the notice of appeal pro se from
prison, such that his appeal is timely pursuant to the “Prisoner Mailbox
Rule.” See Commonwealth v. Jones, 700 A.2d 423 (Pa. 1997) (the rule
that an appeal by a pro se prisoner is deemed filed on the date the prisoner
deposits the notice of appeal with prison authorities and/or places it in a
prison mailbox, even though the court does not receive it until after the
deadline for filing an appeal, extends to all appeals by pro se prisoners).




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      On appeal, Appellant presents the following issue for our review:

            Did the [PCRA c]ourt err in failing to hold an
            evidentiary hearing to determine the credibility of
            the new evidence uncovered, the credibility of
            witnesses that were not called by trial counsel and to
            determine whether it was ineffective assistance of
            counsel for the witnesses to have not been called?

Appellant’s Brief at 9.

      Preliminarily, we recognize that in reviewing the propriety of the PCRA

court’s order denying Appellant relief, we are limited to ascertaining whether

the record supports the determination of the PCRA court and whether the

ruling is free of legal error.   Commonwealth v. Johnson, 966 A.2d 523,

532 (Pa. 2009).     We pay great deference to the factual findings of the

PCRA court, “but its legal determinations are subject to our plenary review.”

Id. The PCRA court has discretion to dismiss a petition without a hearing

when the court is satisfied that no genuine issues of material fact have been

raised, no legitimate purpose would be served by further proceedings, and

the petitioner is not entitled on the merits to post-conviction relief.   Pa.

R.Crim.P. 909(B).

      Here, because the PCRA court denied Appellant’s petition without a

hearing, we “must examine the issues raised in the PCRA petition in light of

the record in order to determine whether the PCRA court erred in concluding

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

an evidentiary hearing.”     Commonwealth v. Springer, 961 A.2d 1262,

1264 (Pa. Super. 2008) (internal citation omitted).      Instantly, Appellant



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asserts that the PCRA court’s failure to conduct an evidentiary hearing

improperly precluded him from presenting newly discovered evidence, as

well as evidence of trial counsel’s ineffectiveness. Appellant’s Brief at 12-18.

After reviewing the record, the parties’ briefs, and prevailing legal authority,

we conclude that the PCRA court has ably addressed Appellant’s claims of

error in its opinion, citing and discussing pertinent statutes and case law, as

well as notes of testimony, to support its determination that an evidentiary

hearing was not warranted because “no genuine issues of material fact were

raised [such that] no legitimate purpose would have been served by further

proceedings.” PCRA Court Opinion, 6/25/15, at 12. Accordingly, we adopt

the PCRA court’s June 25, 2015 opinion as our own in disposing of this

appeal.   The parties shall attach a copy of the trial court’s June 25, 2015

opinion in the event of further proceedings in this matter.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/19/2016




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