J-S72037-16


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,          :    IN THE SUPERIOR COURT OF
                                       :          PENNSYLVANIA
                Appellee               :
                                       :
                  v.                   :
                                       :
GINA A. MURPHY,                        :
                                       :
               Appellant               :    No. 246 MDA 2016

              Appeal from the PCRA Order December 9, 2015,
             in the Court of Common Pleas of Dauphin County,
            Criminal Division at No(s): CP-22-CR-0000907-2013

BEFORE: GANTMAN, P.J., DUBOW, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.:               FILED DECEMBER 16, 2016

     Gina A. Murphy (Appellant) appeals pro se from the order that

dismissed her petition filed pursuant to the Post Conviction Relief Act

(PCRA), 42 Pa.C.S. §§ 9541-9546.    Upon review, we affirm.

     On July 17, 2014, Appellant pled guilty to third-degree murder,

tampering with physical evidence, false swearing, and unsworn falsification

to authorities stemming from the shooting death of her ex-husband.      She

was sentenced on January 23, 2015, to an aggregate term of imprisonment

of 12½ to 25 years. Appellant did not file post-sentence motions or a direct

appeal.

     On May 6, 2015, Appellant pro se timely filed a PCRA petition.

Counsel was appointed and, on August 4, 2015, counsel filed a petition to

withdraw and no-merit letter pursuant to Commonwealth v. Turner, 544


*Retired Senior Judge assigned to the Superior Court.
J-S72037-16


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

Super. 1988) (en banc). On November 10, 2015, the PCRA court sent notice

of its intent to dismiss the petition without a hearing pursuant to

Pa.R.Crim.P. 907. On December 9, 2015, the PCRA court, without ruling on

counsel’s petition to withdraw, dismissed the petition.

      On December 30, 2015, Appellant pro se timely filed a notice of appeal

to this Court.1   On February 11, 2016, the PCRA court issued an order

granting counsel’s petition to withdraw. By order dated March 1, 2016, the

PCRA court directed Appellant to file a concise statement of matters

complained of on appeal pursuant to Pa.R.A.P. 1925(b). On April 12, 2016,


1
   Generally, our courts will not entertain pro se filings while an appellant
remains represented, and such filings have been described as legal nullities.
See Commonwealth v. Ali, 10 A.3d 282, 293 (Pa. 2010). However, pro se
notices of appeal present a special case. In Commonwealth v. Cooper, 27
A.3d 994 (Pa. 2011), our Supreme Court held that a pro se notice of appeal,
filed while Cooper was represented by counsel, was not automatically a legal
nullity, but was simply “premature.” Id. at 1007. Moreover, this Court and
our Supreme Court have faced pro se notices of appeal filed by represented
appellants both before and after Cooper, and we have not considered this
defect to be fatal. See, e.g., Commonwealth v. Wilson, 67 A.3d 736, 738
(Pa. 2013) (explaining that “[Wilson] filed a pro se notice of appeal; it is not
clear why his court-appointed counsel did not file the notice,” and
proceeding to review the merits of Wilson’s case without further discussion);
Commonwealth v. Robinson, 970 A.2d 455, 457 (Pa. Super. 2009)
(remanding for a Grazier hearing where, after the denial of Robinson’s
counseled petition pursuant to the Post Conviction Relief Act, Robinson filed
a timely pro se appeal and a petition requesting that he be allowed to
proceed pro se, and the PCRA court entered an order permitting counsel to
withdraw without conducting a proper colloquy on Robinson’s request and
without the proper procedure for counsel’s withdrawal having been
followed). Thus, we will not treat Appellant’s pro se notice of appeal as a
nullity, particularly given the PCRA court’s subsequent order permitting
Appellant’s counsel to withdraw.


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Appellant filed a “Petition to Order Production of [PCRA] Petition and

Extension of Time,” wherein she requested the PCRA court order that a copy

of her PCRA petition be provided to her; stated that she filed a motion with

the PCRA court on March 8, 2016, requesting an extension of time to file her

concise statement; and requested that the court grant the March 8, 2016

motion, as she could not prepare a concise statement without a copy of her

PCRA petition. Petition to Order Production of [PCRA] Petition and Extension

of Time, 4/12/2016, at 1-2 (unnumbered).

      On April 21, 2016, the PCRA court issued a statement in lieu of a

memorandum opinion stating that, for purposes of appellate review, the

reasons for dismissing Appellant’s PCRA petition were discussed in its Rule

907 notice.   The PCRA court also noted that Appellant did not file, “of

record,” a concise statement as ordered, but that Appellant did send a

“courtesy” copy of the “‘Motion to Extend Time to Perfect Appeal’ requesting

additional time to file a concise statement.”         Statement in Lieu of

Memorandum Opinion, 4/21/2016 at page 1 (unnumbered) n.1. The PCRA

court further explained that “said Motion was never filed of record.”2 Id.



2
  In her reply brief to this Court, Appellant attached a “Motion to Extend
Time to Perfect Appeal Concise Statement,” which she claims was mailed to
the PCRA court on March 8, 2016. We presume this is the document the
PCRA court refers to above. There is no entry in the PCRA court docket that
relates to this document, and the document is not in the certified record.
We further note that the PCRA court made no mention of Appellant’s April
12, 2016 filing.



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      On or about May 2, 2016, Appellant filed with both this Court and the

PCRA court another “Motion to Extend Time to Perfect Appeal.”           She also

filed with both courts a “Motion to Compel Lower Court to Provide

Documents,” which requested that this Court compel the PCRA court to

provide her with her PCRA petition and “any documents that would pertain

to her perfecting her appeal.”    In response, this Court granted Appellant

another extension of time to file her brief and provided Appellant with a copy

of her PCRA petition. Appellant ultimately filed a concise statement with the

PCRA court and her brief with this Court.3

      On   appeal,   Appellant   presents    the   following   issues   for   our

consideration:

      1. Whether the attorney erred in not properly advising and
         preparing [Appellant] regarding her plea agreement.
         Attorney did not show [Appellant] one piece of paper
         pertaining to her case to include discovery, police interviews,
         list of charges or plea offer at any time leading up to her
         incarceration, during her 25 months incarcerated at Dauphin
         County Prison or after her sentencing.



      Additionally, on March 11, 2016, Appellant filed with this Court a
“Motion to Extend Time to Perfect Appeal,” wherein Appellant requested that
this Court “grant an extension of time in which to file the points and the case
on appeal.” Motion to Extend Time to Perfect Appeal, 3/11/2016. The
accompanying certificate of service states that Appellant served the filing on
the PCRA court on March 8, 2016. Treating Appellant’s request as an
application for an extension of time to file a brief, this Court granted the
request on March 14, 2016.
3
  On August 5, 2016, Appellant filed a “Request to Motion Dauphin County
Courthouse to Obtain Prisoners Record of Legal Mail Log, Legal Visit Log and
List of Any Paperwork Exchanged at Legal Visits from Dauphin County
Prison,” which was denied. Order, 8/11/2016.


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      2. Whether the attorney erred in not recognizing that
         [Appellant] was not knowing and intelligent to make decisions
         based on her own case as to what her best options are for
         trial vs. plea because she was trusting and compliant in never
         asking questions regarding her case due to her inability to
         speak for herself caused by extreme Post Traumatic Stress
         Disorder [(PTSD)] stemming from her being a “battered
         spouse” as well as living a life of sexual, emotional and verbal
         abuse.

      3. Whether the attorney erred in not using witnesses given,
         family, friends and co-workers to establish the relationship
         between [Appellant] and the victim to show his abusive and
         drunken past as well as to establish [Appellant’s] PTSD and a
         life of abuse to use as mitigating circumstances for sentencing
         purposes in order to aid the judge.

Appellant’s Brief at 4-5 (unnecessary capitalization omitted).

      Before we address Appellant’s issues, we must determine if they are

preserved properly.    Here, Appellant did not file timely a Rule 1925(b)

statement, as she filed it with the PCRA court in June.     In general, issues

raised in an untimely-filed Pa.R.A.P. 1925(b) statement are waived.         See

Commonwealth v. Gravely, 970 A.2d 1137, 1142 (Pa. 2009) (“[I]t is clear

that an untimely Statement results in waiver of appellate review, regardless

of the treatment the trial court affords the matter.”).          Nevertheless,

Appellant did file with the PCRA court a request for an extension of time to

file a concise statement on April 12, 2016.     In this regard, our Supreme

Court observed as follows in Gravely:

      From this date forward, an appellant who seeks an extension of
      time to file a Statement must do so by filing a written application
      with the trial court, setting out good cause for such extension,
      and requesting an order granting the extension. The failure to
      file such an application within the 21-day time limit set forth in


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      Rule 1925(b)(2) will result in waiver of all issues not raised by
      that date.

Id. at 1145 (emphasis omitted).

      Appellant did not file of record her request for an extension of time to

file a statement with the PCRA court until April 12, 2016, which was well

beyond the 21-day time limit set in the court’s March 1, 2016 order.4

Moreover, because the “Motion to Extend Time to Perfect Appeal Concise

Statement” attached to her Reply Brief to this Court is not in the certified

record, we may not consider it. See Commonwealth v. Preston, 904 A.2d

1, 6 (Pa. Super. 2006) (explaining that “matters which are not of record

cannot be considered on appeal” and that “an appellate court is limited to


4
  The PCRA court ordered Appellant to file her Rule 1925(b) statement
“within twenty-one (21) days after entry of this order.” Order, 3/1/2016. “In
a criminal case, the date of entry of an order is the date the clerk of courts
enters the order on the docket, furnishes a copy of the order to the parties,
and records the time ... of notice on the docket.” Commonwealth v.
Parks, 768 A.2d 1168, 1171 (Pa. Super. 2001) (emphasis omitted) (quoting
Commonwealth v. Jerman, 762 A.2d 366, 368 (Pa. Super. 2000); see
also Pa.R.Crim.P. 114. Thus, the PCRA court’s order was entered on March
2, 2016, giving Appellant until March 23, 2016, to file timely her concise
statement.

       We further note that although the date on her April 12, 2016 filing is
March 22, 2016, she has not provided any documentation establishing that
she would benefit from application of the prisoner mailbox rule. See
Commonwealth v. Wilson, 911 A.2d 942, 944 n.2 (Pa. Super. 2006)
(“Pursuant to the ‘prisoner mailbox rule,” a document is deemed filed when
placed in the hands of prison authorities for mailing.”); see also
Commonwealth v. Jones, 700 A.2d 423, 426 (Pa. 1997) (setting forth
various types of evidence a prisoner can present to avail himself or herself of
the prisoner mailbox rule, including a postal form, cash slip, affidavit, or
“any reasonably verifiable evidence of the date that the prisoner deposits the
[filing] with the prison authorities”).


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considering only the materials in the certified record when resolving an

issue”). Finally, although Appellant filed a “Motion to Extend Time to Perfect

Appeal” with this Court, which was apparently served on the PCRA court on

March 8, 2016, we conclude that this is insufficient to constitute a proper

request for an extension of time to file a concise statement with the PCRA

court. Indeed, such request was not filed of record with the PCRA court, nor

did Appellant set out good cause for the extension therein.         Thus, we

conclude that Appellant has waived her issues for failing to comply with

Pa.R.A.P. 1925.

      Even assuming arguendo that Appellant had not waived her issues on

appeal for failure to comply with Rule 1925(b), she would not be entitled to

relief. This Court’s standard of review regarding an order dismissing a PCRA

petition is whether the determination of the PCRA court is supported by

evidence of record and is free of legal error. Commonwealth v. Donaghy,

33 A.3d 12, 15 (Pa. Super. 2011).

      With respect to Appellant’s first issue, relating to counsel’s alleged

ineffectiveness in advising her with respect to the entry of her guilty plea,

we note that counsel is presumed to be effective.        Commonwealth v.

Simpson, 112 A.3d 1194, 1197 (Pa. 2015). To prevail on a claim of

ineffective assistance of counsel, a PCRA petitioner must prove each of the

following: “(1) the underlying legal claim was of arguable merit; (2) counsel

had no reasonable strategic basis for his action or inaction; and (3) the



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petitioner was prejudiced—that is, but for counsel’s deficient stewardship,

there is a reasonable likelihood the outcome of the proceedings would have

been different.” Id.

         Ineffective assistance of counsel claims arising from the plea-
      bargaining process are eligible for PCRA review. Allegations of
      ineffectiveness in connection with the entry of a guilty plea will
      serve as a basis for relief only if the ineffectiveness caused the
      defendant to enter an involuntary or unknowing plea. Where the
      defendant enters his plea on the advice of counsel, the
      voluntariness of the plea depends on whether counsel’s advice
      was within the range of competence demanded of attorneys in
      criminal cases.

         The standard for post-sentence withdrawal of guilty pleas
         dovetails with the arguable merit/prejudice requirements
         for relief based on a claim of ineffective assistance of plea
         counsel, ... under which the defendant must show that
         counsel’s deficient stewardship resulted in a manifest
         injustice, for example, by facilitating entry of an
         unknowing, involuntary, or unintelligent plea. This
         standard is equivalent to the manifest injustice standard
         applicable to all post-sentence motions to withdraw a
         guilty plea.

      A valid guilty plea must be knowingly, voluntarily and
      intelligently entered.    The Pennsylvania Rules of Criminal
      Procedure mandate that pleas be taken in open court, and
      require the court to conduct an on-the-record colloquy to
      ascertain whether a defendant is aware of his rights and the
      consequences of his plea.          Specifically, the court must
      affirmatively demonstrate the defendant understands: (1) the
      nature of the charges to which he is pleading guilty; (2) the
      factual basis for the plea; (3) his right to trial by jury; (4) the
      presumption of innocence; (5) the permissible ranges of
      sentences and fines possible; and (6) that the court is not bound
      by the terms of the agreement unless the court accepts the
      agreement. This Court will evaluate the adequacy of the plea
      colloquy and the voluntariness of the resulting plea by examining
      the totality of the circumstances surrounding the entry of that
      plea.



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Commonwealth v. Kelley, 136 A.3d 1007, 1012-13 (Pa. Super. 2016)

(internal quotation marks and citations omitted).

      In support of her first issue, Appellant argues that her plea counsel

was ineffective in failing to show her any paperwork pertaining to her case

and to discuss all information, challenges, and issues with her prior to the

entry of her plea. Appellant’s Brief at 13-14. Appellant argues that, being a

victim of a lifetime of abuse, she was unable to assert herself and trusted

counsel to represent her best interests. Id. at 13. Although included in the

argument supporting her second issue on appeal, Appellant further contends

that (1) neither counsel nor “anyone else” informed her “as to what the

actual charge of [m]urder in the … third degree meant” and that she was not

informed properly of the elements of the crimes to which she was pleading

guilty, (2) counsel led her to believe that she would receive a sentence

significantly less than the one she received, (3) counsel did not tell her “that

there would have to be a Presentence Report written or that there w[as] any

sort of minimum time guidelines” and at no time mentioned the term “open

plea,” (4) she never saw or discussed any information about her case with

counsel other than the day he came to present the plea agreement, and (5)

counsel did not explain to her that she had 10 days from the date of her

guilty plea to withdraw the plea and for what reasons she could do so. Id.

at 15-16.




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      The record belies Appellant’s contention that her plea was induced by

counsel’s ineffectiveness and instead supports a conclusion that her plea was

knowing, intelligent, and voluntary. In this regard, the PCRA court explained

as follows:

      The transcripts from the guilty plea hearing indicate that
      [Appellant] 1) understood the misdemeanor charges being
      brought against her, 2) understood the charge of murder (which
      includes first degree murder or third degree murder), 3)
      understood the maximum sentence of third degree murder, 4)
      understood that the court has the option to run the sentences
      either concurrently or consecutively, 5) understood that by
      pleading guilty, she is giving up the possibility of a jury trial or a
      judge trial, 6) understood that by pleading guilty she is giving up
      her rights of the Commonwealth having the burden of proving
      her guilty beyond a reasonable doubt, the right to confront
      witnesses, the right to present a defense, and to testify on her
      behalf, and 7) understood her rights of appeal.

             [Appellant] further indicated that she was entering the
      guilty plea voluntarily, that no one has threatened her in any
      way, that no one has made any promises to her other than the
      agreement to setting the degree of homicide at third degree
      murder, that the plea agreement is not binding on the court
      unless the court accepts it, and that the charges against her are
      contained in a document called a criminal information.
      [Appellant] understood the nature of the charges brought
      against her. [Appellant] understood the factual basis for the
      plea as indicated by the grand jury presentment. The court
      asked [Appellant] if she had “any questions at all for the DA or
      your counsel at all” and whether she understood everything.
      [Appellant] responded that she did not have any questions and
      that she understood everything. Finally, the court found that the
      guilty plea was entered knowingly, intelligently, and voluntarily.

Rule 907 Notice, 11/10/2015, at 4-5 (unnecessary capitalization and

citations omitted).




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        The PCRA court’s findings are supported by the record.    See N.T.,

7/17/2014, at 2-13. We emphasize that Appellant affirmed that she “read

and understood” the criminal information “in its entirety” and “underst[ood]

the nature and elements of the charges as outlined in th[e] criminal

information.” Id. at 8-9. She further represented that she understood that

the entire grand jury presentment would be the factual basis for her guilty

plea and that she read and understood the document in its entirety. Id. at

9-10.     She was informed of and confirmed that she understood the

maximum sentences she could receive for her crimes, and she indicated that

she reviewed the sentencing guidelines with counsel in this case. Id. at 2-3,

11-12.    Appellant stated that she understood that the guidelines are not

binding on the court in imposing sentence, that the court had the option of

running her sentences concurrently or consecutively, and that “this is an

open plea of guilty to third degree murder and the three misdemeanors, and

the Judge will decide within the statutory maximums what the sentence will

be.” Id. at 4, 8, 12.

        Additionally, Appellant said no when asked if “anybody threatened

[her] in any way to get [her] to plead guilty other than with the continued

prosecution if [she] didn’t plead guilty” and if “anybody made any promises

to [her] other than agreement to setting the degree of homicide at third

degree murder to get [her] to plead guilty.” Id. at 7-8. Moreover, when the

trial court stated, “I’m sure you talked about this with your counsel. Do you



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have any questions at all for the [Commonwealth] or your counsel at all?,”

Appellant said no and offered no comment with respect to counsel’s

discussions with her.5 Id. at 12.

     Based on the totality of the circumstances as outlined above, and

mindful that “[a] person who elects to plead guilty is bound by the

statements [s]he makes in open court while under oath and may not later

assert grounds for withdrawing the plea which contradict the statements

[s]he made at his plea colloquy,” Commonwealth v. Yeomans, 24 A.3d

1044, 1047 (Pa. Super. 2011), Appellant has failed to convince us that she

entered her plea as a result of counsel’s ineffectiveness. Commonwealth

v. Miner, 44 A.3d 684, 688 (Pa. Super. 2012) (“It is an appellant’s burden

to persuade us that the PCRA court erred and that relief is due.”). Rather,


5
 Regarding Appellant’s claim that counsel did not inform her that she had
10 days to withdraw her plea and the reasons she could assert for
withdrawal, this Court has held that

     [k]nowledge of the procedural aspects of the right to withdraw
     the plea does not bear upon whether it was voluntary in the first
     instance. If the colloquy properly informs the defendant of the
     rights he is waiving by virtue of the plea, and the defendant
     knows his sentence, the guilty plea is not involuntary or
     unknowing simply because the court failed to inform the
     defendant beforehand of the standard that would apply to a
     petition to withdraw the plea. In other words, the integrity of a
     defendant’s plea remains intact even if the court failed to inform
     the defendant of how, when, or under what circumstances the
     plea could be withdrawn.

Commonwealth v. Prendes, 97 A.3d 337, 352-53 (Pa. Super. 2014)
(internal quotation marks and citations omitted). Thus, Appellant’s claim in
this regard is without merit.


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we agree with the PCRA court that the record establishes that her plea was

knowing, voluntary, and intelligent.        As Appellant’s attempt to invoke

allegations of plea counsel’s ineffectiveness in order to withdraw her plea is

unavailing, no relief is due.

        Appellant’s second issue states that her counsel was ineffective for

        not recognizing that [she] was not knowing and intelligent to
        make decisions based on her own case as to what her best
        options are for trial vs. plea because she was trusting and
        compliant in never asking questions regarding her case due to
        her inability to speak for herself caused by extreme [PTSD]
        stemming from her being a “battered spouse” as well as living a
        life of sexual, emotional, physical and verbal abuse.

Appellant’s    Brief   at   15.   Appellant,   however,   did   not   include   an

ineffectiveness claim relating to counsel’s failure to recognize her alleged

incompetence to enter a plea in her PCRA petition. Thus, in addition to our

finding Rule 1925(b) waiver, Appellant’s claim is waived on this basis as

well.   See Commonwealth v. Williams, 899 A.2d 1060, 1066 n.5 (Pa.

2006) (“Appellant did not raise these issues in his PCRA petition, so they are

waived.”).

        In her third issue, Appellant argues that her counsel was ineffective for

failing to use witnesses to establish the relationship between Appellant and

the victim to show the victim’s abusive and drunken past as well as to

establish Appellant’s PTSD and life of abuse to use as mitigating evidence for

sentencing purposes.         Appellant claims that counsel failed “to admit

testimony from witnesses, family, friends and co-workers to establish history



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and a basis for proving [Appellant] was a victim of psychological and

physical abuse.”   Appellant’s Brief at 17.   She further argues that counsel

erred in excluding testimony from those witnesses and expert testimony as

it relates to “battered women’s syndrome” and helping explain her state of

mind and the reasonableness of her fear at the time of the murder. Id. at

17-19.

      With respect to ineffectiveness claims regarding the failure to

investigate or call a witness, a petitioner must prove that

      (i) the witness existed; (ii) the witness was available to testify;
      (iii) counsel knew of, or should have known of, the existence of
      the witness; (iv) the witness was willing to testify; and (v) the
      absence of the testimony was so prejudicial as to have denied
      the defendant a fair trial.

Commonwealth v. Pander, 100 A.3d 626, 639 (Pa. Super. 2014).

      Upon review, we conclude that Appellant has failed to establish

prejudice.    At sentencing, counsel called Danielle Murphy, one of the

daughters of Appellant and the victim, who testified to the victim’s violence

and alcohol abuse.      N.T., 1/23, 2015, at 90.    Counsel also called Oren

Kauffman, a friend and former coworker of Appellant, who stated that

Appellant would tell him about the victim’s drinking and the couple’s issues,

and he discussed witnessing one interaction where the victim had been

drinking and became “a little overbearing” and was “getting in people’s

faces.” Id. at 94-96.




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      Additionally, counsel offered the testimony and report of Dr. Frank

Dattilio, a clinical and forensic psychologist, as an expert at sentencing. Dr.

Dattilio stated that he had experience dealing with matters that involve

PTSD, “battered woman syndrome,” and alcohol and substance abuse within

families. Id. at 102. In evaluating Appellant, Dr. Dattilio performed various

assessments of Appellant, conducted collateral interviews with family

members, and reviewed background materials and certain materials relating

to the criminal matter herein. Id. at 103-105, 122. Dr. Datillio testified to

Appellant’s history leading up to and including the incident at issue, which

included discussion of the victim’s alcohol abuse, aggression, and his abuse

of Appellant, as well as the abuse Appellant suffered as a child from her

mother and stepfather.      Id. at 107-27.      Dr. Datillio also testified that

Appellant suffers from PTSD, “that she is a passive dependent type of

individual”   with   “depression   and   anxiety,   a   low   self-esteem,   [and]

sadomasochistic tendencies,” and that her actions were “characteristic of

battered individuals.” Id. at 127-31.

      Appellant has failed to indicate how, in light of the evidence that was

offered, additional testimony relating to the victim’s abusive and drunken

past, Appellant’s PTSD and life of abuse, and the implications of battered

women’s syndrome in this case would have led to a different outcome. See

Commonwealth v. Miner, 44 A.3d 684, 688 (Pa. Super. 2012) (“It is an




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appellant’s burden to persuade us that the PCRA court erred and that relief

is due.”). Thus, her final ineffectiveness claim fails.

       Based on the foregoing, Appellant is not entitled to post-conviction

relief. Accordingly, we affirm the PCRA court’s order.

       Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 12/16/2016




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