J-S82016-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF                     :   IN THE SUPERIOR COURT OF
 PENNSYLVANIA                        :        PENNSYLVANIA
                                     :
                                     :
              v.                     :
                                     :
                                     :
 SCOTT DALTON FISHER                 :
                                     :   No. 138 WDA 2017
                   Appellant

            Appeal from the PCRA Order December 20, 2016
  In the Court of Common Pleas of Cameron County Criminal Division at
                    No(s): CP-12-CR-0000008-2009

 COMMONWEALTH OF                     :   IN THE SUPERIOR COURT OF
 PENNSYLVANIA                        :        PENNSYLVANIA
                                     :
                                     :
              v.                     :
                                     :
                                     :
 SCOTT DALTON FISHER                 :
                                     :   No. 139 WDA 2017
                   Appellant

            Appeal from the PCRA Order December 20, 2016
  In the Court of Common Pleas of Cameron County Criminal Division at
                    No(s): CP-12-CR-0000053-2009

 COMMONWEALTH OF                     :   IN THE SUPERIOR COURT OF
 PENNSYLVANIA                        :        PENNSYLVANIA
                                     :
                                     :
              v.                     :
                                     :
                                     :
 SCOTT D. FISHER                     :
                                     :   No. 140 WDA 2017
                   Appellant

              Appeal from the PCRA Order December 20, 2016
J-S82016-17



  In the Court of Common Pleas of Cameron County Criminal Division at
                    No(s): CP-12-CR-0000064-2009

 COMMONWEALTH OF                     :   IN THE SUPERIOR COURT OF
 PENNSYLVANIA                        :        PENNSYLVANIA
                                     :
                                     :
              v.                     :
                                     :
                                     :
 SCOTT D. FISHER                     :
                                     :   No. 141 WDA 2017
                   Appellant

            Appeal from the PCRA Order December 20, 2016
  In the Court of Common Pleas of Cameron County Criminal Division at
                    No(s): CP-12-CR-0000065-2009

 COMMONWEALTH OF                     :   IN THE SUPERIOR COURT OF
 PENNSYLVANIA                        :        PENNSYLVANIA
                                     :
                                     :
              v.                     :
                                     :
                                     :
 SCOTT DALTON FISHER                 :
                                     :   No. 142 WDA 2017
                   Appellant

            Appeal from the PCRA Order December 20, 2016
  In the Court of Common Pleas of Cameron County Criminal Division at
                    No(s): CP-12-CR-0000072-2009

 COMMONWEALTH OF                     :   IN THE SUPERIOR COURT OF
 PENNSYLVANIA                        :        PENNSYLVANIA
                                     :
                                     :
              v.                     :
                                     :
                                     :
 SCOTT DALTON FISHER                 :
                                     :   No. 143 WDA 2017
                   Appellant



                                 -2-
J-S82016-17



             Appeal from the PCRA Order December 20, 2016
   In the Court of Common Pleas of Cameron County Criminal Division at
                     No(s): CP-12-CR-0000073-2009

 COMMONWEALTH OF                       :   IN THE SUPERIOR COURT OF
 PENNSYLVANIA                          :        PENNSYLVANIA
                                       :
                                       :
              v.                       :
                                       :
                                       :
 SCOTT DALTON FISHER                   :
                                       :   No. 144 WDA 2017
                   Appellant

             Appeal from the PCRA Order December 20, 2016
   In the Court of Common Pleas of Cameron County Criminal Division at
                     No(s): CP-12-CR-0000013-2010

 COMMONWEALTH OF                       :   IN THE SUPERIOR COURT OF
 PENNSYLVANIA                          :        PENNSYLVANIA
                                       :
                                       :
              v.                       :
                                       :
                                       :
 SCOTT DALTON FISHER                   :
                                       :   No. 145 WDA 2017
                   Appellant

             Appeal from the PCRA Order December 20, 2016
   In the Court of Common Pleas of Cameron County Criminal Division at
                     No(s): CP-12-CR-0000033-2010


BEFORE:   BENDER, P.J.E., STEVENS*, P.J.E., and STRASSBURGER**, J.

MEMORANDUM BY STEVENS, P.J.E.:                  FILED JANUARY 16, 2018

     Appellant, Scott Dalton Fisher, appeals from the order entered in the

__________________________________

* Former Justice specially assigned to the Superior Court.
** Retired Senior Judge assigned to the Superior Court.

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J-S82016-17




Court of Common Pleas of Cameron County denying his first petition filed

under the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546,

following an evidentiary hearing. After a careful review, we affirm.

      The relevant facts and procedural history underlying this appeal have

been set forth previously by this Court, in part, as follows:

            Appellant was charged in connection with dozens of
      camp/cabin burglaries which occurred between November of 2007
      and August of 2008 in the counties of Cameron, Clinton, Tioga,
      Potter, Clearfield, and Elk. All of the cases were eventually
      consolidated and tried in Cameron County.         Appellant was
      arrested in Cameron County on August 18, 2008, following a high-
      speed chase of his vehicle. Burglary tools and stolen property
      were found in the vehicle after a consent search.
            An omnibus pre-trial motion, which included a motion to
      suppress evidence, was filed [by trial counsel] on October 19,
      2009, and was eventually denied on June 21, 2011. A jury trial
      was commenced on August 22, 2011, but on August 23, 2011, a
      mistrial was declared after a witness testified that [A]ppellant had
      previously been in jail in Wellsboro. On August 26, 2011,
      [A]ppellant filed a motion to bar re-trial on grounds of double
      jeopardy. On September 15, 2011, [A]ppellant filed a motion for
      change of venue/venire. On November 22, 2011, the court denied
      the motion to bar re-trial. On December 28, 2011, the trial court
      denied the motion for change of venue/venire.
             On March 15, 2012, [A]ppellant filed a motion for dismissal
      or release for nominal bail pursuant to Pa.R.Crim.P., Rule 600, 42
      Pa.C.S.A. The motion was denied on March 26, 2012. Thereafter,
      Appellant waived his right to a jury trial and proceeded to a bench
      trial. On July 18, 2012, the trial court found [A]ppellant guilty of
      76 counts of conspiracy to commit burglary. On October 12, 2012,
      [A]ppellant was sentenced to an aggregate term of 17¼ to 35½




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       years’ imprisonment. [Trial counsel filed a] timely appeal [on
       behalf of Appellant].[1]

Commonwealth v. Fisher, Nos. 1768-1775 WDA 2012, at 3-4 (Pa.Super.

filed 9/8/14) (unpublished memorandum) (footnote added).

       On direct appeal, Appellant presented numerous claims of error;

however, with the exception of four issues, we found the claims to be waived

or, to the extent the claims presented allegations of ineffective assistance of

counsel, we dismissed the claims without prejudice to Appellant’s right to raise

the issues in a collateral petition. With regard to the remaining issues, we

found no merit,2 and thus, on September 8, 2014, this Court affirmed

Appellant’s judgment of sentence. See id.        Appellant did not file a petition

for allowance of appeal with our Supreme Court.




____________________________________________


1 While Appellant’s counseled appeal was pending before this Court, Appellant
filed a pro se notice of appeal.      However, we dismissed his appeal.
Commonwealth v. Fisher, No. 652 MDA 2014 (Pa.Super. filed 9/12/14) (per
curiam order).

2 Specifically, we found no merit to the following claims: (1) the trial court
erred in failing to suppress evidence seized from Appellant’s car since his
consent to search was invalid as Appellant was in custody and was not
apprised of his Miranda warnings; (2) the trial court erred in denying
Appellant’s request for a change of venue/venire; (3) the trial court erred in
denying Appellant’s motion for dismissal or nominal bail pursuant to
Pa.R.Crim.P. 600; and (4) the evidence was insufficient to sustain Appellant’s
conviction for burglary.




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       Thereafter, counsel filed on behalf of Appellant a timely PCRA petition,

and the trial court held an evidentiary hearing on March 9, 2016. 3 By order

entered on December 20, 2016, the trial court denied Appellant’s PCRA

petition, and this timely counseled appeal followed.          All Pa.R.A.P. 1925

requirements have been met.

       On appeal, Appellant presents the following issues in his Statement of

Questions Involved:

       I.     Was [Appellant’s] trial counsel ineffective for failing to call
              any witnesses on [Appellant’s] behalf after [Appellant]
              requested that trial counsel call witnesses?
       II.    Were [Appellant’s] rights violated when he asked for an
              attorney at the Pennsylvania State Police barracks in
              Emporium and the State Police denied him an attorney and
              attempted to question [Appellant] after he requested an
              attorney. [Was Appellant’s] trial counsel [ ] ineffective for
              failing to raise this issue in the lower court[?]
       III.   Did the lower court err in denying [Appellant] a new
              attorney when he requested that he get new counsel prior
              to his first trial commencing[?] [Was Appellant] denied
              effective assistance of counsel[?]
       IV.    [Was Appellant’s] trial counsel [ ] ineffective for allowing
              multiple continuances of [Appellant’s] case without
              [Appellant’s] consent[?]
       V.     [Was Appellant’s] trial counsel [ ] ineffective for agreeing to
              a non-jury trial for [Appellant’s] second trial when
              [Appellant] did not consent to the same[?]
       VI.    [Was Appellant’s] trial counsel ineffective in his questioning
              of the co-defendant who testified against [Appellant] for
              failing to raise inconsistencies between the co-defendant’s
              previous testimonies under oath?

____________________________________________


3Following the counseled PCRA petition, Appellant also filed a pro se PCRA
petition.

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      VII.   Was [Appellant’s] trial counsel ineffective for failing to raise
             the Rule 600 issue with the trial court when the trial court
             took well over 365 days to decide [Appellant’s] pre-trial
             motions[?]
      VIII. Was [Appellant’s] trial counsel ineffective for failing to raise
            the issue that the victims failed to provide sufficient proof of
            ownership of the items which they alleged were stolen from
            their property[?]

Appellant’s Brief at 6-7.

      We first note that, although presented as issues in his Statement of

Questions Involved, Appellant specifically indicates in the argument portion of

his brief that he is withdrawing Issues II, III, IV, V, VI, and VIII. See

Appellant’s Brief at 13, 15-18, 24.     Consequently, we shall review Issues I

and VII only.

            When reviewing the denial of a PCRA petition, we must
      determine whether the PCRA court’s order is supported by the
      record and free of legal error. Generally, we are bound by a PCRA
      court’s credibility determinations. However, with regard to a
      court’s legal conclusions, we apply a de novo standard.

Commonwealth v. Johnson, 635 Pa. 665, 139 A.3d 1257, 1272 (2016)

(quotation marks and quotations omitted).

      Furthermore,

            In order to be eligible for PCRA relief, the petitioner must
      prove by a preponderance of the evidence that his conviction or
      sentence resulted from one or more of the enumerated
      circumstances found in Section 9543(a)(2), which includes the
      ineffective assistance of counsel. 42 Pa.C.S.[A.] § 9543(a)(2)(i).
             It is well-established that counsel is presumed effective, and
      to rebut that presumption, the PCRA petitioner must demonstrate
      that counsel’s performance was deficient and that such deficiency
      prejudiced him. To prevail on an ineffectiveness claim, the
      petitioner has the burden to prove that (1) the underlying

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      substantive claim has arguable merit; (2) counsel whose
      effectiveness is being challenged did not have a reasonable basis
      for his or her actions or failure to act; and (3) the petitioner
      suffered prejudice as a result of counsel’s deficient performance.
      The failure to satisfy any one of the prongs will cause the entire
      claim to fail.

Commonwealth v. Benner, 147 A.3d 915, 919–20 (Pa.Super. 2016)

(quotation marks, quotations, and citations omitted).

            We need not analyze the prongs of an ineffectiveness claim
      in any particular order. Rather, we may discuss first any prong
      that an appellant cannot satisfy under the prevailing law and the
      applicable facts and circumstances of the case. Finally, counsel
      cannot be deemed ineffective for failing to raise a meritless claim.

Johnson, 139 A.3d at 1272 (citations omitted).

      In his first issue, Appellant contends trial counsel was ineffective for

failing to call any witnesses on Appellant’s behalf at trial despite Appellant’s

request for him to do so. In this regard, Appellant contends that he asked

trial counsel to contact and present the testimony of his uncle, Claude

Gascark, who could confirm that Appellant “never went out at night[,]” as well

as contact and present the testimony of Donna Clark, “who he assumed was

the owner of the car he was pulled over in.” Appellant’s Brief at 11.

      To establish counsel’s ineffectiveness for failing to call a witness, a

petitioner must demonstrate that:

      (1) the witness existed; (2) the witness was available; (3) counsel
      was informed of the existence of the witness or counsel should
      otherwise have known of him; (4) the witness was prepared to
      cooperate and testify for Appellant at trial; and (5) the absence of
      the testimony prejudiced Appellant so as to deny him a fair trial.
      A defendant must establish prejudice by demonstrating that he


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      was denied a fair trial because of the absence of the testimony of
      the proposed witness.

Commonwealth v. O'Bidos, 849 A.2d 243, 249 (Pa.Super. 2004) (citations

omitted and emphasis added).

      Here, in finding Appellant is not entitled to relief, the PCRA court

indicated the following:

              As a result of [trial counsel’s] alleged failure to call any
      witnesses on [Appellant’s] behalf at trial, [Appellant] maintains
      [trial counsel] was ineffective in his representation of [Appellant].
      According to [Appellant], he told [trial counsel] to travel to the
      areas of Wellsboro and Mansfield, Pennsylvania, to speak to
      people about Edward Whitten, [Appellant’s] co-defendant who
      testified against [Appellant] at trial. The only individuals identified
      by [Appellant] that he wanted [trial counsel] to speak with were
      his uncle, Claude Gascark, and Donna Clark, both of whom were
      deceased [by the time] the PCRA hearing [was] conducted in
      March 2016. Gascark ostensibly would have been able to testify
      that he was very familiar with [Appellant], that [Appellant] did not
      go out at night because he worked for Warren Johnson all day on
      Johnson’s farm, including doing such work as plowing and cutting
      hay. [Appellant] was otherwise inspecific [sic] and vague about
      what Gascark may have been able to testify to that was relevant
      and material to the charges filed against [Appellant][.]
      [Appellant] also indicated that Donna Clark[,] whose car
      [Appellant] was driving when [he was] arrested on August 18,
      2008, would also have been able to relate that [Appellant] worked
      every day, but similarly, there were no particulars provided [by
      Appellant] regarding her ability to present any exculpatory
      testimony at trial or any testimony remotely related to the charges
      filed as a result of criminal episodes which occurred over a broad
      expanse of time and geography.
             When questioned [at the PCRA hearing] about names
      provided by [Appellant] prior to trial, [trial counsel] indicated that
      he was never provided with a list of any alibi witnesses, but [he]
      was provided [with] a list of other potential witnesses who were
      inmates who supposedly said Edward Whitten was not willing to
      testify. [Trial counsel] decided not to investigate those potential
      inmate witnesses given that Whitten was very willing to cooperate

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      with the Commonwealth. [Trial counsel] also confirmed that at
      no time did he receive the names of any potential witnesses from
      [Appellant’s] wife. At the time of the March 9, 2016 [PCRA]
      hearing, [Appellant] acknowledged that he suffers from many
      medical conditions and has some compromise of his memory. The
      testimony of [trial counsel] regarding the identification of potential
      defense witnesses was found to be more compelling and credible
      than that of [Appellant].

PCRA Court Opinion, filed 12/20/16, at 8.

      Our review confirms that the PCRA court’s findings are supported in the

record, and we discern no legal error in the PCRA court’s legal conclusions.

See Johnson, supra. Specifically, as was within its province, the PCRA court

found credible trial counsel’s PCRA testimony that the only witnesses provided

to him was a list of inmates Mr. Whitten allegedly talked to while he was in

prison.   See id.    Thus, Appellant failed to demonstrate that he informed

counsel of the existence of, or counsel should otherwise have known of,

Gascark and Clark. See O'Bidos, supra.              Further, as the PCRA court

indicated, Appellant failed to prove the absence of Gascark’s and/or Clarks’

testimony prejudiced Appellant so as to deny him a fair trial. See id.         Thus,

Appellant is not entitled to relief on his first claim.

      In his final developed claim, Appellant contends trial counsel was

ineffective for omitting a certain issue in his motion for dismissal pursuant to

Pa.R.Crim.P. 600. Specifically, citing to Commonwealth v. Africa, 524 Pa.

118, 569 A.2d 920 (1990), Appellant contends that judicial delay with regard

to the trial court’s ruling on his pre-trial omnibus motions resulted in a Rule



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600 violation, and thus trial counsel was ineffective in failing to present this

specific issue in the Rule 600 motion.4

        Initially, we note that, in affirming Appellant’s judgment of sentence on

direct appeal, as it relates to Appellant’s underlying Rule 600 claim, this Court

concluded that:

              The trial court granted [A]ppellant a new trial on August 23,
        2011, when it declared a mistrial in [A]ppellant’s first trial.
        Therefore, pursuant to Rule 600, the Commonwealth had until
        August 23, 2012,[5] to bring [A]ppellant to trial. Appellant filed
        his motion for dismissal or release for nominal bail on March 15,
        2012, well within that time period and no dismissal of charges was
        therefore available under Rule 600.

Commonwealth v. Fisher, Nos. 1768-1775 WDA 2012, at 14 (footnote

added). Accordingly, as it relates to the time period following the trial court’s

declaration of a mistrial, there is no arguable merit to Appellant’s underlying

claim of a Rule 600 violation.

        Further, to the extent Appellant suggests that, due to judicial delay, trial

counsel was ineffective in failing to file a motion to dismiss prior to the trial




____________________________________________


4 On March 15, 2012, Appellant filed a counseled motion for dismissal or
release on nominal bail pursuant to Pa.R.Crim.P. 600; however, trial counsel
presented no issue related to judicial delay therein. Further, after the trial
court denied Appellant’s motion on March 26, 2012, there is no indication trial
counsel raised the issue of court delay.

5   We note that Appellant’s trial subsequently commenced in July 2012.




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court’s declaration of a mistrial on August 23, 2011, we find no arguable merit

to the underlying claim.

       Under Pa.R.Crim.P. 600, Appellant was to be brought to trial within 365

days after the written complaint was filed against him (the mechanical run

date). See Pa.R.Crim.P. 600(A)(3).6            Here, the written complaint was filed

on August 18, 2008 (at least to some of the charges), and Appellant was

originally brought to trial on the consolidated cases on August 22, 2011.

       However, the “mechanical run date can be modified or extended by

adding to the date any periods of time in which the delay is caused by the

defendant. Once the mechanical run date is modified accordingly, it then

becomes an adjusted run date.” Commonwealth v. Jackson, 765 A.2d 389,

391 n.3 (Pa.Super. 2000) (citations omitted).

       Further, as our Supreme Court has stated:

             Judicial delay can [also] support the grant of an extension
       of the Rule [600] run date. See Commonwealth v. Africa, 524
       Pa. 118, 569 A.2d 920 (1990).
                                        ***
              In Commonwealth v. Africa, this Court articulated that a
       two-step process is used to analyze alleged violations of Rule
       [600]: (1) whether the delay itself was sufficiently long to be
       “presumptively prejudicial”; and, if so, (2) whether the delay is
       justified under the balancing test of Barker v. Wingo, 407 U.S.
       514, 92 S.Ct. 2182 (1972). The balancing test analyzes four
       factors: the length of the delay; the reason for the delay; the
       defendant’s assertion of the right to a speedy trial; and, any
____________________________________________


6 Rule 600 was amended, effective July 1, 2013; however, the amended
version is not applicable to Appellant’s case.



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       prejudice to the defendant arising from the delay.[7]
       Commonwealth v. Africa, 524 Pa. at 123, 569 A.2d at 923. In
       Africa, a delay of twenty-seven months was deemed sufficient to
       trigger the second inquiry under the Barker test. This Court
       concluded that the Commonwealth had not demonstrated that the
       accused was brought to trial with due diligence. We reasoned that
       the judicial process had diverted Africa from “one date to another
       without much regard for the need to conduct a speedy trial” with
       the result that successive shifting of Africa to the bottom of the
       next trial list did not establish a good faith reason for the delay.
       Id. at 124, 569 A.2d at 923.

Commonwealth v. Spence, 534 Pa. 233, 243–44, 627 A.2d 1176, 1181–82

(1993) (citation omitted) (footnote added).

       In the case sub judice, in addressing Appellant’s claim, the PCRA court

indicated the following:

             The record of the consolidated cases [ ] amply demonstrates
       that there is no basis to determine that [trial counsel] was
       ineffective in failing to address the purportedly untoward gap
       between the filing of an omnibus pretrial motion and the court’s
____________________________________________


7 Regarding the fourth factor, which requires the demonstration of prejudice
caused by the delay in trial, we have stated the following:
     Prejudice, of course, should be assessed in the [sic] light of the
     interests of defendants which the speedy trial right was designed
     to protect. This Court has identified three such interests: (i) to
     prevent oppressive pretrial incarceration; (ii) to minimize anxiety
     and concern of the accused; and (iii) to limit the possibility that
     the defense will be impaired. Of these, the most serious is the
     last, because the inability of a defendant adequately to prepare
     his case skews the fairness of the entire system. If witnesses die
     or disappear during a delay, the prejudice is obvious. There is
     also prejudice if defense witnesses are unable to recall accurately
     events of the distant past. Loss of memory, however, is not
     always reflected in the record because what has been forgotten
     can rarely be shown.
Commonwealth v. Kimbrough, 872 A.2d 1244, 1259 (Pa.Super. 2005) (en
banc) (quotation omitted).


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      decision on that omnibus pretrial motion. With [Appellant’s]
      arrest in Cameron County on August 18, 2008, multiple charges
      from multiple jurisdictions were compiled and filed. Some of those
      cases were not transferred to Cameron County until after the filing
      of omnibus pretrial motions on [Appellant’s] behalf by [trial
      counsel] on October 19, 2009, including those from Potter and
      Clearfield Counties. Indeed, omnibus motions were not filed in all
      [of] the cases. Once the transfers were completed, motions for
      consolidation were presented together with motions for
      reconsideration when the court denied the Commonwealth’s
      motion to consolidate the cases of [Appellant] and those of his
      son, Travis Fisher, for trial. Moreover, at the conclusion of the
      omnibus hearing on February 16, 2010, counsel were afforded the
      opportunity to submit memoranda of law to the court in support
      of their respective positions. The timeline regarding the omnibus
      pretrial motion notwithstanding, [Appellant] has failed entirely to
      provide any evidence of any prejudice to him as a result of any
      delay in rendering a decision on his omnibus pretrial motion. It
      was the consolidation of multiple cases and the ability afforded
      [Appellant] to address further pretrial issues after the
      consolidation of all of the cases that resulted in the elapse of time
      between the filing of the omnibus pretrial motion in the cases
      initially filed directly in Cameron County and the issuing of an
      opinion on that motion. Given the number of offenses and number
      of jurisdictions involved, it was certainly reasonable for [trial
      counsel] to consider and reflect upon all of the cases consolidated
      for prosecution and the fact that he did not assert of record any
      inquiry into the status of the omnibus motion does not connote
      ineffective assistance, particularly when [Appellant] has not
      shown any [prejudice]. The mere passage of time does not
      suffice. Rather, there must be some showing that during the
      passage of time, [Appellant] sustained some prejudice[,] and he
      has not made any such showing.

PCRA Court Opinion, filed 12/20/16, at 9-10.

      We agree with the PCRA court’s reasoning in this regard. Assuming,

arguendo, the delay at issue was “presumptively prejudicial,” we conclude

that, upon a balancing of the Barker factors, Appellant has not demonstrated

entitlement to relief due to the judicial delay at issue. Accordingly, since there


                                     - 14 -
J-S82016-17


is no arguable merit to the underlying claim that trial counsel should have filed

a motion to dismiss on this basis, trial counsel cannot be deemed ineffective

on this ground. See Johnson, supra.

      For all of the aforementioned reasons, we affirm the PCRA court’s order

denying Appellant’s first petition filed under the PCRA.

      Affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/16/2018




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