J-S65035-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    JOSE LUIS FLORES-MEDINA                    :
                                               :
                       Appellant               :   No. 520 MDA 2019

              Appeal from the PCRA Order Entered March 5, 2019
     In the Court of Common Pleas of Lancaster County Criminal Division at
                       No(s): CP-36-CR-0003446-2015


BEFORE:      PANELLA, P.J., KUNSELMAN, J., and COLINS, J.*

MEMORANDUM BY COLINS, J.:                           FILED DECEMBER 30, 2019

        Appellant, Jose Luis Flores-Medina, pro se, appeals from the order

entered March 5, 2019, that dismissed, without a hearing, his first petition

filed under the Post Conviction Relief Act (“PCRA”),1 stemming from his jury

trial convictions for rape by forcible compulsion, unlawful contact with minor

(relating to sexual offenses), and corruption of minors.2 We affirm the order

of the PCRA court.

        The facts underlying this appeal are as follows. On April 11, 2015, the

seventeen-year-old victim, E.M. (“Victim”), was staying at the home of her

aunt, M.N.; Victim slept on an air mattress in a bedroom occupied by M.N.


____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
1   42 Pa.C.S. §§ 9541–9546.
2   18 Pa.C.S. §§ 3121(a)(1), 6318(a)(1), and 6301(a)(1)(i), respectively.
J-S65035-19



and Appellant. See Trial Court Opinion, filed August 30, 2016, at 3-4. M.N.

had taken medication that night before she went to sleep. N.T. Trial at 147-

48. During the middle of the night, Appellant began to touch Victim. Id. at

148. As Victim later testified at trial, Appellant then touched her “private part”

with “[h]is private part.” Id. at 149. “Appellant had his hand over [V]ictim’s

mouth while this occurred. The next morning, Appellant drove [V]ictim home,

[V]ictim reported the incident to her mother and grandmother, and [V]ictim

was then taken to the hospital by her mother for a medical examination.” Trial

Court Opinion, filed August 30, 2016, at 3 (citing N.T. Trial at 149-51).

      The examination of [V]ictim [by a sexual assault nurse examiner]
      revealed tenderness and superficial redness of skin to the labia
      minora surrounding the vagina, a laceration and redness to the
      posterior fourchette at the bottom of the vagina, and an abrasion
      between [V]ictim’s vaginal wall and hymen. [N.T. Trial] at 202-
      03. Dried secretions were also observed on the labia majora,
      which were collected as evidence. Id. at 207-08. . . . Detective
      Randall Zook (“Zook”) of the Lancaster City Bureau of Police
      (“LCBP”) testified that on April 13, 2015, Appellant voluntarily
      provided a buccal swab, which was later sent for DNA analysis
      with evidence taken of [V]ictim by the nurse . . . [Id.] at 238,
      249-55. . . . [T]he sperm found on [V]ictim’s external genitalia
      was a match with Appellant’s DNA. Id. at 301-02, 315-19.

Id. at 3-4.

      On December 30, 2015, Appellant filed an omnibus pretrial motion,

including a motion to suppress evidence.         “Immediately prior to trial, a

suppression hearing was held on Appellant’s pretrial motion challenging his

statement to police, consent to search his home, and consent to take a buccal




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swab for DNA testing.” PCRA Court Opinion, filed May 9, 2019, at 1 (citing

N.T Trial at 4-5).3

        At the suppression hearing, Detective Robert Deeter (“Deeter”),
        LCBP, testified that he asked Appellant if he would be willing to
        speak to police and give consent to a search of his apartment.
        N.T. [Trial] at 6-7. Deeter spoke to Appellant in English and
        Appellant responded appropriately in English. Id. at 7. Appellant
        signed the consent form without asking any questions or
        indicating he did not understand. Id. at 8-9. A female who was
        present with Appellant also spoke English. Id. at 11. Appellant
        never expressed any concern or reservation about being able to
        communicate in English, nor did he state he could not speak
        English. Id. at 13. If he had, Deeter would have called for a
        Spanish-speaking officer to interpret. Id.

        Officer Gareth Lowe, Jr. (“Lowe”), LCBP, also spoke with Appellant
        in English about going to the police station for an interview, and
        Appellant agreed. [Id.] at 16. At the police station, Appellant
        was read his Miranda[4] rights in English [by Detective Zook, in
        Officer Lowe’s presence], [Appellant] responded to every question
        in English, and he read aloud the language at the bottom of the
        Miranda form in English. Id. at 19-20. When he signed the form,
        Appellant never said he was confused, nor did he ask for a form
        in Spanish. Id. at 26. Lowe later read Appellant a consent form
        asking to obtain a buccal swab for DNA testing. Id. at 21-22.
        Appellant responded by talking about how DNA is used in
        television programs and gave his consent because he wanted to
        prove he was innocent. Id. at 23. During the 2 3/4 hour
        interview, Appellant spoke English the entire time and never asked
        for the definition of any words. Id. at 20-21. Lowe did not believe



____________________________________________


3 The notes of testimony for the suppression hearing were included in the
same volume as the notes of testimony for the first day of the trial. The notes
of testimony are paginated consecutively from the suppression hearing
through to the verdict. We have thereby chosen to refer to all of these notes
of testimony as “N.T. Trial” throughout this decision, including the notes from
the suppression hearing.
4   Miranda v. Arizona, 384 U.S. 436 (1966).

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     there was any language barrier which prevented Appellant from
     understanding what was happening. Id. at 29.

     Detective Zook testified that he offered a Spanish-speaking officer
     if Appellant had any issues with language. [Id.] at 35. However,
     the entire conversation with Appellant was in English and
     Appellant did not appear to be confused. Id. at 31-32, 38. When
     Zook asked him if he read English, Appellant stated he did. Id. at
     34-35. When Zook asked if he could write English, Appellant
     stated he could write some English. Id. at 35. Appellant then
     signed the Miranda rights form. Id. at 37.

     The recorded interview was played for the court. [Id.] at 39-40;
     Commonwealth Suppression Hearing Exhibit 5.             The court
     observed Appellant in the DVD and saw that he could read,
     understand, and speak the English language. [Id.] at 41-42.
     Appellant also knowingly, intelligently and voluntarily waived his
     Miranda rights. Id. at 41. Appellant was asked every question
     in English, he answered every question appropriately in English
     almost simultaneously, and he did not appear to be confused. Id.
     at 42. Trial counsel concurred, noting that any confusion shown
     later in the DVD was not based on the English language. Id. at
     42-45.

     [M.N.] testifying for the defense at the suppression hearing,
     stated she lived with Appellant and they mostly communicated in
     Spanish. [Id.] at 65-67. However, Appellant did understand
     enough English to carry on a conversation. Id. at 67-69. In fact,
     Appellant communicated in English with another female who lived
     with them. Id. at 68.

     Appellant testified at the suppression hearing and stated he
     moved to Lancaster eight years ago after living in Milwaukee for
     two years. [Id.] at 73-74. He could speak basic English that he
     learned in Puerto Rico. Id. at 72-73. Appellant claimed he had
     difficulty reading the Miranda rights form, he signed it without
     understanding what was written, and he only answered the
     questions “to get that out of the way.” Id. at 77-78. Appellant
     also claimed he did not understand the consent for the buccal
     swab. Id. at 78. Finally, Appellant claimed he did not understand
     parts of the interview. Id. at 79. Appellant stated he asked for
     an interpreter three times on the way to the police station and
     was told there would be one when they got to the station. Id. At
     the station, he was told an interpreter was not available. Id. at
     80.11


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         11In rebuttal, Detective Zook testified that he did not recall
         Appellant asking for an interpreter and he did not document
         such a request in his report, although it was possible. N.T.
         [Trial] at 84-85.

      Following the suppression hearing, the [trial] court found that
      Appellant’s testimony was not credible, particularly his assertion
      that he had a limited ability to understand or speak the English
      language. [Id.] at 88-89. The court noted that during his
      testimony Appellant answered at least two questions before there
      was any translation. Id. at 81. Furthermore, [the trial court
      concluded that,] as noted in the video, Appellant clearly
      understood the English language and responded appropriately to
      every question almost simultaneously. Id. at 89.

Id. at 25-27.   Based upon these findings of fact, the trial court held that

“Appellant was able to read, speak, and understand the English language, he

voluntarily went to the police station, he was not in custody, he knowingly and

voluntarily waived Miranda rights, and he agreed to speak to police.” Id. at

1 (citing N.T. Trial at 88-89); see also id. at 28. The trial court also concluded

that Appellant had “voluntarily consented to the buccal swab and a search of

his residence.” Id. at 1 (citing N.T. Trial at 89). The trial court therefore

denied Appellant’s suppression motion. Id. (citing N.T. Trial at 90).

      At trial, during the Commonwealth’s case-in-chief, a deputy sheriff

informed the trial court that one of the jurors had lied about her criminal

record during voir dire; that juror was removed from the jury and replaced

with the first alternate juror. N.T. Trial at 270-71. On March 3, 2016, the

jury convicted Appellant of the aforementioned crimes.

      On March 8, 2016, after Appellant was convicted but prior to his

sentencing --



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      the bailiff informed the [trial] court of a conversation he had with
      one of the jurors prior to deliberations where the juror wanted to
      access his cell phone to review his notes. Notes of Testimony,
      Chambers Meeting, 3/10/16, at 2 . . . Consequently, the court
      held a chambers meeting with counsel on March 10, 2016 to
      discuss the matter, at which time the bailiff reported that when he
      retrieved a cell phone from one of the jurors immediately prior to
      deliberations the juror asked if he could keep his phone so he
      could “transfer” some of his notes. Id. at 2-3. The bailiff said no
      and took the phone. Id. at 3. . . . [Appellant’s trial] counsel stated
      that during trial he was focused on the juror in question and he
      did not see that juror taking any notes. [Id.] at 10. Counsel
      looked at all the jurors intermittently throughout the trial and
      never saw anyone with a cell phone. Id. at 12. Moreover, based
      on his conversation with the juror in question and nine other jurors
      after the trial was over, counsel was satisfied that this situation
      was not prejudicial to the defense. Id. at 10-11. If he believed
      otherwise, counsel would have asked for a mistrial. Id. at 14-15.

PCRA Court Opinion, filed May 9, 2019, at 23-24 (some formatting).

      Appellant filed a direct appeal, and this Court affirmed his convictions

but vacated and remanded for resentencing on all counts. Commonwealth

v.   Flores-Medina,    168    A.3d   358    (Pa.   Super.   2017)   (unpublished

memorandum).      Appellant filed a petition for allowance of appeal to the

Supreme Court of Pennsylvania, which was denied.            Commonwealth v.

Flores-Medina, 170 A.3d 1044 (Pa. 2017).

      On October 12, 2017, Appellant was resentenced to 8½ to 20 years of

confinement. He did not file a direct appeal following resentencing.

      On August 22, 2018, Appellant filed his first, pro se, timely PCRA

petition, written in English. On August 29, 2018, the PCRA court appointed

counsel to represent Appellant. On December 27, 2018, PCRA counsel filed a

petition to withdraw and a “no merit” letter pursuant to Commonwealth v.



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Turner, 544 A.2d 927 (Pa. 1988), and Commonwealth v. Finley, 550 A.2d

213 (Pa. Super. 1988) (en banc). On January 14, 2019, Appellant filed pro

se a response to PCRA counsel’s motion to withdraw, again written in English.

On January 17, 2019, the PCRA court entered a notice of intent to dismiss all

claims without a hearing pursuant to Pa.R.Crim.P. 907 (“Rule 907 Notice”).

Appellant pro se filed an application for extension of time to file a response to

the Rule 907 Notice, also written in English, which the PCRA court granted;

Appellant then filed, in English, a pro se response to the Rule 907 Notice. On

March 5, 2019, the PCRA court dismissed Appellant’s petition and granted

counsel’s motion to withdraw. On March 28, 2019, Appellant filed, pro se, a

timely notice of appeal in English, along with a request for transcripts and an

application to proceed in forma pauperis on appeal, both in English.          On

April 22, 2019, Appellant filed his pro se concise statement of errors

complained of on appeal in English.5

        In his pro se brief to this Court, written in English, Appellant presents

the following issues for our review:

        I.    Did the trial court abuse its discretion where the guilty
        verdict to the charge of rape was against the weight of the
        evidence and necessitates a new trial pursuant to Pa.[R.]Crim. P.
        607?

        II.   Did the trial court abuse its discretion where the evidence
        was insufficient as well as weak and inconclusive as to the
        elements of rape by forcible compulsion were not proven beyond
        a reasonable doubt?

____________________________________________


5   The PCRA court entered its opinion on May 9, 2019.

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      III. Did the trial court abuse its discretion by imposing a
      manifestly excessive and unreasonable sentence where there
      were no additional aggravating circumstances to warrant the
      harsh sentence?

      IV. Whether trial counsel was ineffective for failing to object and
      not seeking a new trial when it brought to the [trial c]ourt’s
      attention that one of the jurors lied about [her] criminal history?

      V.    Whether trial counsel was ineffective for not requesting a
      mistrial when it was discovered that a juror was recording notes
      on his cell phone, in order to use the notes in the jury room?

      VI. Whether Appellate counsel was ineffective during the direct
      appeal stage of the proceedings when she failed to raise the
      following properly preserved suppression hearing claims:

            (a) The statement made by Appellant should be suppressed
            when prior, and during his initial interview he requested a
            translator, due to lack of understanding English;

            (b) The Appellant’s challenge as to his consent to search his
            home should have been suppressed where he barely
            understood English; therefore could not sufficiently
            understood what he was giving consent to;

            (c) The Appellant’s challenge to his consent of his DNA,
            where he could barely understand English; and thus to what
            he was consenting to.

      VII. Did the PCRA court abuse its discretion by denying
      Appellant’s Sixth Amendment claim of ineffective counsel, where
      counsel failed to preserve and protect Appellant’s weight and
      sufficiency claim as well failing to preserve the sentencing claim?

Appellant’s Brief at 5-6 (suggested answers omitted).

      “We review the denial of PCRA relief to decide whether the PCRA court’s

factual determinations are supported by the record and are free of legal error.”

Commonwealth v. Medina, 209 A.3d 992, 996 (Pa. Super. 2019) (quoting

Commonwealth v. Brown, 196 A.3d 130, 150 (Pa. 2018)), reargument

denied (July 17, 2019).


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      Preliminarily, we note that Appellant’s first three appellate claims are

waived, because he could have challenged these alleged errors as part of a

direct appeal but failed to do so. See 42 Pa.C.S. § 9544(b) (“for purposes of

[the PCRA], an issue is waived if the petitioner could have raised it but failed

to do so before trial, at trial, during unitary review, on appeal or in a prior

state postconviction proceeding.”).

      Appellant’s remaining issues allege ineffective assistance of counsel.

      Counsel is presumed to be effective.

      To overcome this presumption, a PCRA petitioner must plead and
      prove that: (1) the underlying legal claim is of arguable merit;
      (2) counsel’s action or inaction lacked any objectively reasonable
      basis designed to effectuate his client’s interest; and
      (3) prejudice, to the effect that there was a reasonable probability
      of a different outcome if not for counsel’s error.

      A failure to satisfy any of the three prongs of this test requires
      rejection of a claim of ineffective assistance.

Medina, 209 A.3d at 1000 (citations and internal brackets and quotation

marks omitted) (some additional formatting).

      Appellant’s fourth issue contends that his “trial counsel was ineffective

for failing to object and not seeking a new trial when it [was] brought to the

[trial] court’s attention that one of the jurors lied about her criminal history.”

Appellant’s Brief at 26. “The decision to discharge a juror is within the sound

discretion of the trial court and will not be disturbed absent an abuse of that

discretion. This discretion exists even after the jury has been impaneled and

the juror sworn.”    Commonwealth v. Marrero, 217 A.3d 888, 890 (Pa.

Super. 2019) (quoting Commonwealth v. Carter, 643 A.2d 61, 70 (Pa.


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1994)). In the current action, the dishonest juror was removed and replaced

with an alternate juror. N.T. Trial at 270-71. This removal and replacement

occurred before the jury began its deliberations, and the eliminated juror did

not vote to convict Appellant. Accordingly, the trial court did not abuse its

discretion, and Appellant has failed to establish that there was a reasonable

probability of a different outcome and consequently cannot establish prejudice

and, in turn, ineffective assistance of trial counsel. See Medina, 209 A.3d at

1000.

        Next, Appellant argues that “trial counsel was ineffective for not

requesting a mistrial when it was brought to the [trial] court[’s] attention that

a juror was using his phone to record and access notes[.]” Appellant’s Brief

at 29. Appellant maintains that he “can establish prejudice where anyone

could have accessed this information and/or could have assisted the juror

in making his decision.” Id. at 30 (emphasis added).

        An extraneous influence may compromise the impartiality and
        integrity of the jury, raising the specter of prejudice. See Carter
        by Carter v. U.S. Steel Corp., 529 Pa. 409, 604 A.2d 1010,
        1015–16 (1992) (plurality). The relevant inquiry is whether the
        extraneous influence caused “a reasonable likelihood of
        prejudice.” Id. at 1016; see also Commonwealth v. Bradley,
        501 Pa. 25, 459 A.2d 733, 739 (1983) (requiring showing that
        contact between member of the jury and court officer resulted in
        “a reasonable likelihood of prejudice” to defendant.). . . . The
        burden is on the party claiming prejudice. Id.

Commonwealth v. Sneed, 45 A.3d 1096, 1115 (Pa. 2012) (emphasis

added).




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      In the current action, Appellant presents no evidence that the juror in

question actually took notes on his cellular telephone; no one, including

Appellant’s own trial counsel, saw that juror or any of the other jurors taking

notes on a cellular phone. PCRA Court Opinion, filed May 9, 2019, at 24 (citing

N.T., 3/10/2016, at 10, 12). Assuming this juror had been taking notes on

his cell phone, Appellant has made no proffer that anyone else accessed said

notes or somehow used them to assist the juror in making his decision; ergo,

Appellant has failed to establish that any extraneous influence even existed.

The juror also did not bring his phone into the jury room, so any notes thereon

could not have influenced jury deliberations.         Id. at 23 (citing N.T.,

3/10/2016, at 2-3). Appellant hence has failed to meet his burden that a

reasonable likelihood of prejudice resulted from an extraneous influence.

Sneed, 45 A.3d at 1115. As he is unable to establish prejudice, he cannot

satisfy one prong of the test for ineffective assistance of counsel, and this

entire claim that trial counsel was ineffective, his fifth issue overall, thereby

fails. See Medina, 209 A.3d at 1000.

      Appellant next urges this Court to find that his appellate counsel was

ineffective for “fail[ing] to raise the following properly preserved suppression

hearing claims[:]

         1) The statement made by Appellant during the initial
         interview should have been suppressed when Appellant
         repeatedly requested a translator on the ride from his home
         to the police station;

         2) The consent from Appellant to search his home should
         have been suppressed due to the fact that he barely

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         understood English and could not          have   sufficiently
         understood what he was consenting to;

         3) The consent to give his DNA swab should have been
         suppressed where he did not totally understand English and
         therefore he was unable to sufficiently understand the
         situation.

      There is a huge difference between Appellant being able to
      understand English enough to carry a generic conversation and
      the extent of the legal ramification as to what was being told to
      the Appellant as far as exactly what rights he had and what he
      would have able to decline without officially being under arrest.

Appellant’s Brief at 33-34.

      In Commonwealth v. Padilla, 854 A.2d 549, 552-53 (Pa. Super.

2004), this Court found that the defendant’s waiver of his Miranda rights was

voluntary, “although the record support[ed] a determination that [the

defendant] could not read or write English and needed an interpreter to aid in

his comprehension of written documents[.]”        This Court reached such a

conclusion, because:    (1) prior to giving his statement, the investigating

officer had read the defendant’s Miranda rights to him prior to questioning

him, and the defendant had indicated to the officer that he understood his

rights and was willing to give a statement; (2) the officer testified that the

defendant spoke English well; and (3) the defendant had familiarity with

criminal proceedings. Id.

      Appellant’s circumstances are analogous to those of Padilla. Id. Just

as the defendant in Padilla had indicated to the officer that he was willing to

give a statement after the officer had read his Miranda rights to him,

Appellant agreed to give a statement to police after Detective Zook read his

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Miranda rights aloud in English and after Appellant read the testament at the

end of the form out loud in English. PCRA Court Opinion, filed May 9, 2019,

at 25 (citing N.T. Trial at 16, 19-20). The defendant in Padilla indicated to

the officer that he understood his rights, and Appellant similarly indicated to

Officer Lowe and to Detective Zook that he understood his rights when he

signed the Miranda form. Id. at 25-26 (citing N.T. Trial at 26, 37); see also

id. at 25 (citing N.T. Trial at 29) (Officer Lowe believed that Appellant

understood what was happening). Like the officer in Padilla who testified

that Appellant spoke English well, Detective Deeter testified that Appellant

responded appropriately in English, and Detective Zook testified that Appellant

told him that he could read English. Id. at 25-26 (citing N.T. Trial at 7, 34-

35). The trial court also watched the recording of Appellant’s police interview

and found that Appellant “answered every question appropriately in English

almost simultaneously” with being asked. Id. at 26 (citing N.T. Trial at 42).

Appellant’s own witness, M.N., even conceded that Appellant was able to

converse in English.     Id. (citing N.T. Trial at 67-69).   Finally, although

Appellant did not have the familiarity with criminal proceedings that the

defendant in Padilla had, Appellant told Officer Lowe that he was familiar with

the purpose of DNA testing before he consented to giving a buccal swab. Id.

at 25 (citing N.T. Trial at 23).

      In addition to the parallels to Padilla, 854 A.3d at 552-53, we observe

that the record is replete with examples of Appellant’s use and comprehension


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of the English language. His PCRA petition, response to PCRA counsel’s motion

to withdraw, request for extension of time to respond to the Rule 907 Notice,

response to the Rule 907 Notice, notice of appeal, request for transcripts,

application to proceed in forma pauperis, statement of errors complained of

on appeal, and brief to this Court were all pro se and written in English. There

is no indication in any of these documents that they were composed with the

assistance of an interpreter or a third party.

      Consequently, Appellant’s contention that he does not understand the

English language and, accordingly, should have been provided with an

interpreter prior to making a statement to police or consenting to a search is

meritless.   “Counsel will not be deemed ineffective for failing to raise a

meritless claim.” Sneed, 45 A.3d at 1115; see also Medina, 209 A.3d at

1000. Ergo, Appellant is not entitled to relief on his penultimate claim or any

of its subsections.

      Appellant’s final challenge is that “[a]ppellate counsel as well as PCRA

counsel was ineffective for failing to address the several instances of trial

counsel’s ineffectiveness, stemming from his failure to file a timely post-

sentence motion.”     Appellant’s Brief at 37. This issue was not included in

Appellant’s statement of errors complained of on appeal and hence is waived.

Pa.R.A.P. 1925(b)(4)(vii) (“Issues not included in the Statement and/or not




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raised in accordance with the provisions of this paragraph (b)(4) are

waived.”).6

       For the reasons given above, we conclude that Appellant’s issues raised

on appeal are waived or meritless. Having discerned no error of law, we affirm

the order below. See Medina, 209 A.3d at 996.

       Order affirmed.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/30/2019




____________________________________________


6 In fact, Appellant made no mention of PCRA counsel at all in his concise
statement of errors complained of on appeal, and the statement’s only
reference to appellate counsel was in a claim identical to the sixth issue,
discussed above.

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