J-S83016-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    STANFORD ALLEN RUSSELL                     :
                                               :
                       Appellant               :   No. 507 WDA 2018

              Appeal from the PCRA Order September 29, 2016
     In the Court of Common Pleas of Fayette County Criminal Division at
                       No(s): CP-26-CR-0002015-2013


BEFORE: PANELLA, J., SHOGAN, J., and MUSMANNO, J.

MEMORANDUM BY SHOGAN, J.:                           FILED FEBRUARY 19, 2019

       Stanford Allen Russell (“Appellant”) appeals pro se from the order

denying his petition for relief filed under the Post Conviction Relief Act

(“PCRA”), 42 Pa.C.S. §§ 9541–9546. We affirm.

       Appellant assaulted Franki Ross (“Ms. Ross”) on August 27, 2013. On

April 8, 2014, a jury convicted Appellant of attempted rape by forcible

compulsion, simple assault, and harassment. 1          The trial court sentenced

Appellant on August 12, 2014, to incarceration for an aggregate term of seven

to fourteen years. We affirmed the judgment of sentence. Commonwealth

v. Russell, 121 A.3d 1130, 1551 WDA 2014 (Pa. Super. filed April 13, 2015)



____________________________________________


1   18 Pa.C.S. §§ 901(a), 3121(a)(1), 2701(a)(1), and 2709(a)(1),
respectively.
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(unpublished     memorandum).         Appellant   did    not   seek   review   in   the

Pennsylvania Supreme Court.

       Appellant filed a timely pro se PCRA petition on February 12, 2016. The

PCRA court appointed counsel, who filed an amended petition. Orders, 3/3/16

and 3/16/16; Amended PCRA Petition, 8/8/16. The PCRA court conducted a

hearing on September 29, 2016, at which PCRA counsel explained Appellant’s

issues, and trial counsel was present but did not testify.            The PCRA court

denied Appellant’s petition and then discussed PCRA counsel’s desire to

withdraw and the procedural path forward.                 N.T., 9/29/16, at 16–18.

Appellant agreed to counsel withdrawing and to proceeding pro se. Id. at 18–

19, 20–21.

       No substantive action appears on the docket until December 30, 2016,

when Appellant filed a pro se “Motion for Reinstatement of Appeal Rights, Nunc

Pro Tunc, and Scheduling of Grazier[2] Hearing.” The trial court forwarded

Appellant’s pro se motion to PCRA counsel.              Letter, 12/30/16.   Again, no

substantive action appears on the docket until May 22, 2017, when Appellant

filed a notice of appeal and a concise statement pursuant to Pa.R.A.P. 1925(b).

Because no final order disposing of Appellant’s pro se motion appeared on the

docket, we quashed the appeal as premature. Order, 8/28/17. In response,




____________________________________________


2   Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).

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the PCRA court entered an order granting Appellant’s pro se motion and

scheduling a Grazier hearing. Order, 2/26/18.

      Following the Grazier hearing on March 13, 2018, the PCRA court

determined that Appellant “has made a knowing, intelligent and voluntary

decision to represent himself in the within matter[.]”          Order, 3/14/18.

Additionally, the PCRA court reinstated Appellant’s appeal rights and “excused

[counsel] from further action to be taken in this case[,]” with the exception of

requesting transcripts on Appellant’s behalf.       Id.   This appeal followed.

Appellant and the PCRA court complied with Pa.R.A.P. 1925.

      On appeal, Appellant presents the          following questions for our

consideration:

      I.    Was PCRA counsel ineffective in failing to properly
            investigate and present witnesses in support of Appellant’s
            claim that trial counsel as ineffective in failing to present
            these same witnesses? Further, where the PCRA court was
            informed that Appellant’s trial investigator had (to
            Appellant’s reasonable belief) interviewed these witnesses
            and submitted reports on same, but said reports have never
            been disclosed to Appellant or PCRA counsel, was PCRA
            counsel ineffective in failing to further investigate the
            whereabouts of said investigator or his reports?

      II.   Where the PCRA court was informed, prior to granting leave
            of PCRA counsel to withdraw and prior to the filing of this
            (pro se) appeal, though after the PCRA hearing, that
            Appellant had discovered additional information and
            witnesses which relate back to his original PCRA claims and
            where Appellant’s trial investigator had, for the first time,
            been identified for Appellant (because the P.D.’s Office
            would/could not identify him previously) and that said
            investigator’s reports on his interviews of witnesses have
            never been disclosed to Appellant or PCRA counsel, did the
            PCRA court err in failing to reconsider or stay it’s [sic] prior

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              denial of relief and provide Appellant a meaningful
              opportunity to obtain and review said reports and present
              his additional information and witnesses prior to pursuing
              this appeal?

Appellant’s Brief at 3 (emphasis in original).

      When reviewing the propriety of an order denying PCRA relief, we

consider the record “in the light most favorable to the prevailing party at the

PCRA level.”    Commonwealth v. Stultz, 114 A.3d 865, 872 (Pa. Super.

2015) (quoting Commonwealth v. Henkel, 90 A.3d 16, 20 (Pa. Super. 2014)

(en banc)).    This Court is limited to determining whether the evidence of

record supports the conclusions of the PCRA court and whether the ruling is

free of legal error. Commonwealth v. Robinson, 139 A.3d 178, 185 (Pa.

2016).   The PCRA court’s findings will not be disturbed unless there is no

support for them in the certified record. Commonwealth v. Lippert, 85 A.3d

1095, 1100 (Pa. Super. 2014).

      Appellant’s first question assails trial counsel’s and PCRA counsel’s

representation as ineffective. When considering an allegation of ineffective

assistance of counsel (“IAC”), we presume that counsel provided effective

representation unless the PCRA petitioner pleads and proves that: (1) the

underlying claim is of arguable merit; (2) counsel had no reasonable basis for

his action or inaction; and (3) petitioner was prejudiced by counsel’s action or

omission. Commonwealth v. Johnson, 179 A.3d 1105, 1114 (Pa. Super.

2018) (citing Commonwealth v. Pierce, 527 A.2d 973, 975–976 (Pa.

1987)). Because courts must presume that counsel was effective, the burden

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of proving ineffectiveness rests with the petitioner.          Commonwealth v.

Montalvo, 114 A.3d 401, 410 (Pa. 2015). An IAC claim will fail if the

petitioner’s   evidence   fails   to   meet   any   one   of   the   three   prongs.

Commonwealth v. Simpson, 66 A.3d 253, 260 (Pa. 2013).

            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. Id. at 1117–18;
      Commonwealth v. Albrecht, 554 Pa. 31, 720 A.2d 693, 701
      (1998). Finally, counsel cannot be deemed ineffective for failing
      to raise a meritless claim. Commonwealth v. Jones, 590 Pa.
      202, 912 A.2d 268, 278 (2006).

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

      Appellant focuses his IAC claim on PCRA counsel’s failure to investigate

and present witnesses at the PCRA hearing to support a claim that trial counsel

was ineffective in failing to present the same witnesses at trial. Appellant’s

Brief at 7. “Where the defendant asserts a layered ineffectiveness claim he

must properly argue each prong of the three-prong ineffectiveness test for

each separate attorney.” Commonwealth v. Rykard, 55 A.3d 1177, 1190

(Pa. Super. 2012).

      Layered claims of ineffectiveness are not wholly distinct from the
      underlying claims, because proof of the underlying claim is an
      essential element of the derivative ineffectiveness claim. In
      determining a layered claim of ineffectiveness, the critical inquiry
      is whether the first attorney that the defendant asserts was
      ineffective did, in fact, render ineffective assistance of counsel. If
      that attorney was effective, then subsequent counsel cannot be
      deemed ineffective for failing to raise the underlying issue.

Id. (internal citations and quotation marks omitted).


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      Here, Appellant has not argued each prong of the three-prong

ineffectiveness test for each separate attorney: trial counsel and PCRA

counsel. We could remand to allow Appellant to amend his PCRA petition.

Commonwealth v. McGill, 832 A.2d 1014, 1024 (Pa. 2003).                 However,

“there is simply no need to remand a PCRA petition when the petitioner has

not carried his Pierce burden in relation to the underlying claim of trial

counsel’s ineffectiveness, since even if petitioner were able to craft a perfectly

layered argument in support of his [claim of PCRA counsel’s ineffectiveness],

the petitioner’s claim would not entitle him to relief.” Commonwealth v.

Rush, 838 A.2d 651, 657 (Pa. 2003). Upon review, we conclude that, even

if Appellant were able to craft a perfectly layered argument in support of his

claim of PCRA counsel’s ineffectiveness, he would not be entitled to relief.

      To prevail on a claim of counsel’s ineffectiveness for failure to call a

witness, an appellant must prove: “(1) the witness existed; (2) the witness

was available; (3) trial counsel was informed of the existence of the witness

or should have known of the witness’s existence; (4) the witness was prepared

to cooperate and would have testified on appellant’s behalf; and (5) the

absence of the testimony prejudiced appellant.” Commonwealth v. Chmiel,

889 A.2d 501, 545–546 (Pa. 2005) (citations omitted). Counsel’s failure to

call a particular witness does not constitute ineffective assistance without

some showing that the absent witness’ testimony would have been beneficial

or helpful in establishing the asserted defense. Id.


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       According to Appellant, Ms. Ross, “who had an extensive [crimen] falsi

record . . . had both a motive for falsely accusing Appellant in this instant

matter and had previously done so for vindictive reasons.” Id. at 7–8 (italics

supplied).     In an attempt to discredit Ms. Ross, Appellant argues that

witnesses Anna Brooks, Brittany Boyd, Thomas Darrell,3 Stephanie Boyer,

Christopher Vance, and Tracy Beard, Appellant’s parole officer, would have

testified that Ms. Ross had: (1) falsely accused Appellant previously; (2)

orchestrated charges to be filed against Thomas Darrell by her cousin; (3)

conspired with Sergeant Ryan Reese, with whom Ms. Ross had a sexual

relationship, to frame Appellant; and/or (4) publicly threatened to put

Appellant in prison.       Id. at 8–9.         Additionally, Appellant points out that

Sergeant Reese “has been investigated and convicted for exchanging favors

in his official capacity in quashing charges for sexual favors of female

suspects.” Id. at 10.

       The PCRA court addressed this IAC claim as follows:

             This issue was enquired into during [Appellant’s] PCRA
       hearing on September 29, 2016. [Appellant’s] PCRA counsel
       relayed to the [c]ourt that Brittany Boyd and Stephanie Boyer
       were unavailable for the hearing but they would have testified to
       the effect that the victim, [Ms.] Ross, told them that she was going
       to put [Appellant] in jail just like she had Thomas Darrell. Mr.
       Darrell was charged with rape in Fayette County at 761 of 2007.
       PCRA counsel then relayed to the [c]ourt that she spoke with Mr.
       Darrell, who has since passed away from a drug overdose[;] he
       stated that, to his knowledge, he was never accused of rape by
____________________________________________


3  We have used the spelling of this witness’ surname as it appears in the
certified record. N.T. (PCRA Hearing), 9/29/16, at 2.

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      [Ms.] Ross. The rape accusation was made by a Barbara Jane Hall
      who, at the time of the allegation, lived with [Ms.] Ross’ cousin,
      Sammy Ross.

             This eliminated the necessity to call these three witnesses
      because no one with the last name Ross made the allegations
      against Mr. Darrell but it was in fact a person who lived at Sammy
      Ross’ house and that may be why the other witnesses had gotten
      confused. The claim that trial and PCRA counsel were ineffective
      in failing to call these witnesses is unfounded as there was no
      reason to call them because their testimony would not be relevant.

            [Appellant] next claims that trial and PCRA counsel were
      ineffective for failing to call his state parole officer, Tracy Beard,
      as a witness. [Appellant] claims that [Ms.] Ross had contacted
      Ms. Beard directly by phone on several occasions and [Appellant]
      showed Ms. Beard texts sent from [Ms.] Ross to [Appellant] that
      said she was “going to get back at” [Appellant] because he was
      not faithful to her. PCRA counsel had spoken with Ms. Beard and
      [Ms. Beard] stated that she does not have any memory of the
      phone calls or text messages; if [Ms. Beard] was shown the text
      messages, she stated that she had no way of verifying who sent
      the messages.

            It was not ineffective of trial or PCRA counsel not to call
      Tracy Beard as a witness as she had no knowledge of the incident
      and even if she had knowledge, she could not authenticate the
      source of the text messages.

PCRA Court Statement in Lieu of Opinion, 6/19/18, at unnumbered 1–2

(internal citations omitted).

      Viewing the evidence in the light most favorable to the Commonwealth

as the prevailing party, we conclude that the evidence of record supports the

factual findings of the PCRA court.      Stultz, 114 A.3d at 872.       Appellant

attached two affidavits to his pro se petition, one by Christopher Vance and

one by Stephanie Boyer.         Additionally, PCRA counsel attached Stephanie

Boyer’s affidavit and an unsworn statement by Brittany Boyd to Appellant’s

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amended petition. Mr. Vance would have testified that Ms. Ross threatened

to put him in prison for cheating on her, as she had Mr. Darrell, and that he

was available and willing to testify at trial on Appellant’s behalf.       Vance

Affidavit, 1/16/16.      Ms. Boyer would have testified that Ms. Ross falsely

accused Appellant of assaulting her, but Ms. Boyer did not say that she was

available or would have testified at trial. Boyer Affidavit, 1/16/16. Ms. Boyd

would have testified that Ms. Ross falsely accused Appellant of assaulting her

and boasted about collaborating with Sergeant Reese to frame Appellant and

that Ms. Boyd was available and willing to testify at trial on Appellant’s behalf.

Boyd Statement, 2/15/16.

       Armed with the witness affidavits and statement, PCRA counsel advised

the court that, after speaking with Thomas Darrell, Brittany Boyd, Stephanie

Boyer, and Tracy Beard,4 PCRA counsel concluded their testimony would not

have benefited Appellant’s defense:

             Ms. Boyd, we had a serious credibility issue with her as well
       as some of the information that she provided in her affidavit is
       incorrect. Ms. Stephanie Boyer . . . did know about the hearing
       today. . . . I left voice mails and she still did not respond. . . .
       [B]oth of the witnesses indicated that Ms. Ross had told them that
       she was going to put [Appellant] in jail just like she had Thomas
       Darrell. And make him serve some time. . . . [However,] Mr.
       Darrell confirmed to me that in his, there had never been, to his


____________________________________________


4  To the extent Appellant complains that counsel did not investigate or call
Anna Brooks, we conclude that Appellant failed to prove that Ms. Brooks was
available, known to counsel, prepared to cooperate, and that she would have
testified on Appellant’s behalf; nor did Appellant prove how Ms. Brooks’
testimony would have benefitted his defense. Chmiel, 889 A.2d at 545–546.

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      knowledge, any accusations about [Ms. Ross] alleging he harmed
      her in any way that were ever made in the community. . . .

                                    * * *

      I spoke with [Tracy Beard]. She said that she didn’t have any
      immediate memory of [Ms. Ross’] calls [or text messages].
      Specifically, if someone had called, she doesn’t know whose
      calling to complain about one of her clients, so she does not take
      that seriously unless they would have been a victim in the case
      that . . . she was supervising at the time. Also, that [Appellant]
      had shown her text messages. She didn’t know, could not, if that
      happened, verify who text messages were made from, by. You
      know, who sent them.

N.T., 9/26/16, at 2–3, 8.

      In light of PCRA counsel’s analysis, the PCRA court opined on the record

that Appellant did not have “any allegations that would require [trial counsel]

to defend his effectiveness at trial. . . .” N.T., 9/29/16, at 11. In response,

PCRA counsel asked Appellant if she had addressed all of his issues and stated

them correctly; Appellant responded affirmatively. Id. When asked again if

Appellant had anything to add to any of the issues clearly represented by

counsel, Appellant responded negatively. Id. at 15. Notably, Appellant did

not challenge PCRA counsel’s characterization of the witnesses’ testimony or

raise any issues regarding Mr. Vance or the other witnesses. Thus, Appellant’s

current complaints about uncalled witnesses strike us as disingenuous.

      Based on the foregoing, we conclude that Appellant has failed to

demonstrate that the proffered witnesses were available and willing to testify

and/or that their testimony would have benefitted his defense. Chmiel, 889

A.2d at 545–546. Thus, Appellant failed to meet his burden to prove that trial

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counsel was ineffective in failing to investigate and call the proffered

witnesses. Because trial counsel was not ineffective, PCRA counsel cannot be

deemed ineffective for failing to raise trial counsel’s ineffectiveness.      See

Commonwealth v. Paddy, 15 A.3d 431, 443 (Pa. 2011) (“[B]ecause there

was no ineffectiveness of trial counsel, there was no viable claim of ineffective

assistance of PCRA counsel.”).    Accordingly, the PCRA court did not err in

concluding that Appellant’s IAC claim lacked arguable merit.

      Within his first question presented, Appellant also avers that “PCRA

counsel was ineffective in failing to locate and interview [the defense]

investigator and/or demand the disclosure of that investigator’s reports on

[witness] interviews—or discover that the interviews were never conducted

and, thus, Appellant’s claims against trial counsel would be substantiated.”

Appellant’s Brief at 14.

      In disposing of this IAC claim, we rely on and adopt as our own, the

PCRA court’s well-reasoned analysis:

             [Appellant’s] next contention is that PCRA counsel was
      ineffective because she [was] unable to discover the identity of
      the investigator known only to [Appellant], at the relevant time,
      as “Joel”. The Assistant District Attorney, present at [Appellant’s]
      Grazier Hearing, was able to remember his last name and revealed
      for the first time that his full name was “Joel Harkins”. [Appellant]
      contends that he gave Mr. Harkins a list of “four or five” witnesses
      and when a new investigator came to see [Appellant], he told
      [Appellant] that he had his file. When [Appellant] got to trial, he
      was told they did not have his witness list and was told it was not
      in his file. PCRA counsel stated that she was able to review part
      of [Appellant’s] file she recovered from the Public Defender’s
      Office, the other part of the file they retained as work product but
      the witness list was not present in the portion of the file she was

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      given. [Appellant] was told he could contact the Public Defender’s
      [O]ffice to investigate that matter further, if he so wished.

            [Appellant] claims that Joel Harkins did complete reports on
      the witnesses that [Appellant] provided to him, however, there is
      no evidence that such reports actually exist. [Appellant] states
      he has never seen said reports[.] PCRA counsel reviewed the
      portion of [Appellant’s] file that was not privileged and there was
      not a witness list or any reports on said witness list present. It is
      unclear to the [c]ourt how [Appellant] is certain that said reports
      even exist.

            Furthermore, PCRA counsel was not ineffective for her
      alleged failure to identify the whereabouts of the investigator or
      his reports because PCRA counsel did her own investigation into
      [Appellant’s] witnesses and revealed that they would not be
      beneficial to [Appellant’s] case.

PCRA Court Statement in Lieu of Opinion, 6/19/18, at unnumbered 2–3

(internal citations omitted). Thus, this IAC claim also fails.

      In his second question presented, Appellant argues that the PCRA court

erred in denying his request for reconsideration of its original denial of PCRA

relief. Appellant’s Brief at 15. Appellant bases this argument on his proffer

of newly discovered evidence and his inability to obtain the defense

investigator’s reports.

      Shortly after the Grazier hearing, Appellant sent a letter to the PCRA

court, asserting that he discovered new witnesses and information, which

warranted a stay of the PCRA court’s order and a new hearing. Id. at 16;

Letter, 3/26/18. On appeal, Appellant specifies that, after the PCRA hearing:

      previously named witness, Robert Steindl, was re-located and
      questioned. [Mr.] Steindl had told a mutual acquaintance prior to
      trial that (1) he heard [Ms.] Ross boast about framing Appellant
      and (2) that he had personal knowledge of the relationship

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     between Appellant’s accuser and the particular police detective
     she collaborated with to frame Appellant. . . . [Mr.] Steindl had
     also advised that he, in fact, had been interviewed by the
     investigator and had related this information to him.

Appellant’s Brief at 15 (emphasis in original).   According to Appellant, Mr.

Steindl and his acquaintance could verify that Ms. Ross and Sergeant Reese

were in a relationship and collaborated to frame Appellant. Id.

     The PCRA court disposed of Appellant’s allegation of error as follows:

           On March 13, 2018, a video [Grazier] Hearing was held and
     [Appellant] was informed of his options moving forward with his
     PCRA appeal. [Appellant] was told that his current motion was to
     reinstate his appellate rights and that normally on appeal, you do
     not produce new evidence. [N.T., 3/13/18, at 11.] At the PCRA
     hearing, as outlined supra, [Appellant’s] counsel spoke with
     [Appellant’s] prospective witnesses and determined that the
     witnesses would not provide helpful testimony.

           [Appellant] was made aware that if he found any genuinely
     new evidence, he would need to make a strategic determination
     whether or not to drop this appeal and advance a new PCRA based
     on newly discovered evidence. Id. at 13–14. [Appellant] was
     informed of the time constraints of filing this current appeal and
     the process of filing a new PCRA based on newly discovered
     evidence. Id. at 14. [Appellant] relayed to the [c]ourt that he
     understood this process. Id.

PCRA Court Statement in Lieu of Opinion, 6/19/18, at unnumbered 3–4.

     Upon review, we find support in the record for the PCRA court’s

identification of the procedural options available to Appellant. At the PCRA

hearing, Appellant agreed to counsel withdrawing and to continuing pro se;

the PCRA court advised Appellant of the procedure for filing an appeal; and

Appellant informed the court that he understood. N.T., 9/29/16, at 17–19,

20–23. Although PCRA counsel did not formally withdraw or file an appeal,

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Appellant obtained relief following the Grazier hearing. Therein, Appellant

again agreed to the withdrawal of counsel and to continuing pro se; the PCRA

court advised Appellant of the procedure for filing an appeal or, alternatively,

for filing a serial PCRA petition based on new evidence.      Again, Appellant

informed the court that he understood. N.T., 3/13/17, at 5–6, 11–15. The

PCRA court found that Appellant knowingly waived his right to counsel,

reinstated Appellant’s appeal rights, and excused PCRA counsel.          Order,

3/14/18. Aware that he could file an appeal nunc pro tunc from the denial of

his PCRA petition or file a serial petition alleging new evidence, Appellant

chose to pursue the instant appeal from the order denying his PCRA petition.

Thus, Appellant’s claim that the PCRA court erred in refusing to consider new

evidence is untenable.

      As for Appellant’s letter to the PCRA court, Appellant could not rely on

Mr. Steindl’s statements to support a claim of newly discovered evidence for

two reasons. First, Appellant would have had to file a serial PCRA petition,

averring “[t]he unavailability at the time of trial of exculpatory evidence that

has subsequently become available and would have changed the outcome of

the trial if it had been introduced.” 42 Pa.C.S. § 9543(a). Appellant did not

file a serial petition; he pursued the instant appeal. Second, Appellant would

have used Mr. Steindl’s statements solely to impeach Ms. Ross’ credibility;

such evidence does not support a claim of newly discovered evidence. See

Commonwealth v. D’Amato, 856 A.2d 806, 823 (Pa. 2004) (reciting that,


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to obtain relief on a newly-discovered-evidence claim, a PCRA petitioner must

establish, inter alia, that the evidence would not be used solely to impeach

credibility).

      Regarding Appellant’s complaint that the PCRA court did not afford him

the opportunity to obtain the defense investigator’s files, we agree with the

PCRA court’s analysis:

            [Appellant’s] trial was held on April 7, 2014 and his PCRA
      hearing was on September 29, 2016[. Appellant] had ample time
      to do his own investigation. [Appellant’s] inability to obtain the
      investigator’s reports, which may not even exist, was not a failure
      of the [c]ourt. If the reports do exist and [Appellant] is able to
      obtain them, he would be able to file a PCRA based on newly
      discovered evidence and this [c]ourt will review [Appellant’s]
      motion at that time.

PCRA Court Statement in Lieu of Opinion, 6/19/18, at unnumbered 4.

      In sum, we conclude that Appellant’s issues do not warrant relief. Thus,

we affirm the order denying Appellant’s PCRA petition.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/19/2019




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