J-S23018-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    ANTHONY MCFALL                             :
                                               :
                       Appellant               :   No. 3303 EDA 2016

                  Appeal from the PCRA Order October 4, 2016
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                       No(s): CP-51-CR-0000538-2012,
                            CP-51-CR-0006406-2012

BEFORE: SHOGAN, J., NICHOLS, J., and STEVENS, P.J.E.*

MEMORANDUM BY NICHOLS, J.:                                FILED JUNE 26, 2018

        Appellant Anthony McFall appeals, pro se, from the order denying his

petition for relief under the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§

9541-9546. Appellant claims that both plea counsel and PCRA counsel were

ineffective. We affirm.

        On April 9, 2013, following his completion of two written guilty plea

colloquy forms and an oral colloquy by the court, Appellant entered a

negotiated guilty plea to rape and witness intimidation.1 See Written Guilty

Pleas for 0538-2012 and 6406-2012, 4/9/13; N.T. Guilty Plea Hr’g, 4/9/13, at

6-42. In relevant part, the written guilty plea colloquies include a statement


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*   Former Justice specially assigned to the Superior Court.

1   18 Pa.C.S. §§ 3121(a)(1), 4952.
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that the defendant recognizes that “if the judge does not agree with the plea

bargain or agreement, [the defendant] can withdraw [the] guilty plea and

have a trial before a judge and jury or before a judge alone.” Written Guilty

Plea Colloquy, at 1.      Appellant signed the written colloquies in the court’s

presence. N.T. Guilty Plea Hr’g at 39-41. The trial court accepted Appellant’s

pleas and immediately imposed the negotiated sentence of ten to twenty

years’ incarceration after plea counsel waived the preparation of a

presentence investigation report (PSI). Appellant was advised of his appellate

rights. Id. at 59-63. Appellant did not move to withdraw his guilty plea and

did not file a direct appeal.

       The PCRA court docketed Appellant’s timely pro se PCRA petition on

September 6, 2013. Therein, Appellant raised several claims regarding plea

counsel’s ineffectiveness.2 On March 11, 2015, the court appointed counsel,




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2 In his pro se PCRA petition, Appellant claimed that plea counsel was
ineffective for (1) failing to obtain phone records, including text messages
records, that would have helped his case; (2) stating that he thought Appellant
was guilty; (3) calling the complainant and discussing matters outside the
bounds of the case; (4) failing to contact witnesses helpful to the defense;
and (5) coercing Appellant to accept a plea by saying that his family members
may be implicated in witness tampering and intimidation if he did not take
responsibility. He further claimed that he was unable to contact counsel to
rescind his guilty plea after sentencing.




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who subsequently filed a “no merit” letter under Turner/Finley3 on April 28,

2016, addressing each of the claims raised in Appellant’s pro se petition.4

        On June 28, 2016, the PCRA court issued a Pa.R.Crim.P. 907 notice of

intent to dismiss Appellant’s first petition without a hearing.5 Appellant’s Rule

907 response was docketed on July 14, 2016.          Therein, Appellant raised

additional claims of plea counsel’s ineffectiveness along with new claims of

ineffectiveness against PCRA counsel.6 On August 15, 2016, PCRA counsel

filed an amended Turner/Finley letter, in which he addressed the ineffective

assistance of plea counsel claims raised in Appellant’s Rule 907 response, and


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3Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth v.
Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
4   The record does not explain the delay.
5 After determining that Appellant did not receive the original Rule 907 notice,
the PCRA court vacated its previous Rule 907 notice and issued a new one in
order to allow Appellant time to respond.
6 In his response to the PCRA court’s Rule 907 notice, Appellant stated that
(1) PCRA counsel was ineffective for failing to properly assess and present the
issues he raised in his pro se petition; (2) Appellant intended to proceed to
trial, but instead pled guilty because plea counsel told him it was in his best
interest; (3) Appellant did not agree with the factual basis for his plea, but
pled guilty because he believed it was in his best interest; (4) plea counsel
was ineffective for failing to appeal the court’s ruling on his rule 600 motion;
and (5) PCRA counsel abandoned Appellant’s claims and based his assessment
of the issues solely on the factual support provided by Appellant. See
Appellant’s Rule 907 Resp., 7/14/16, at 1. Appellant did not seek leave to file
an amended petition to raise new claims of plea counsel’s ineffective
assistance of counsel. See Commonwealth v. Rykard, 55 A.3d 1177, 1192
(Pa. Super. 2012).




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concluded that they were frivolous. The PCRA court did not issue a second

Rule 907 notice.

       On October 4, 2016, the PCRA court issued an order dismissing

Appellant’s petition and granting counsel’s petition to withdraw. See PCRA

Ct. Order, 10/4/16. Appellant’s notice of appeal was docketed on October 17,

2016. The PCRA court did not order compliance with Pa.R.A.P. 1925(b), and

Appellant did not file a statement of errors. On July 12, 2017, the court issued

a Rule 1925(a) opinion.7

       On September 27, 2017, Appellant filed a petition for remand raising

additional issues.8 This Court denied Appellant’s petition without prejudice to

re-raise the issues in his appellate brief.

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7 The PCRA court, in its Rule 1925(a) opinion, concluded that (1) plea counsel
was not ineffective for failing to obtain phone records, including text
messages, where Appellant did not articulate why such records would have
helped his case; (2) plea counsel was not ineffective for allegedly stating that
he believed Appellant was guilty, where Appellant did not substantiate his
claim, nor did he articulate how this alleged statement prejudiced him; (3)
plea counsel was not ineffective based on Appellant’s unsubstantiated claim
that counsel contacted the complainant “to discuss matters outside of the
case”; and (4) plea counsel was not ineffective for allegedly coercing Appellant
into accepting a plea, where Appellant failed to substantiate his claim, and
made contradictory statements under oath during his guilty plea colloquy.
See PCRA Ct. Op., 7/12/17, 4-5.
8In his petition for remand to this Court, Appellant raised the following issues:
(1) Appellant was denied ineffective assistance of counsel in a first PCRA and
was denied the opportunity to present underlying issues and was denied
meaningful review; (2) the plea of guilty is not valid or legal; (3) Appellant
was denied a PSI prior to sentencing and counsel was ineffective; (4) Appellant
was abandoned for the purpose of appeal and was denied independent counsel



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       Appellant raises the following issues for our review:

       1. Was the plea of guilty invalid, and was counsel ineffective in
       failing to protect Appellant[’]s right to a valid knowing plea?

       2. Was Appellant denied a PSI without his knowledge, and without
       an effective waiver, and was counsel ineffective?

       3. Was Appellant denied effective PCRA counsel in a first timely
       PCRA petition?

       4. Was PCRA counsel ineffective, and was his Finley letter
       defective[,] denying [pro se] Appellant meaningful review?

Appellant’s Brief at 3 (issues reordered to facilitate disposition).

       Our standard of review from the denial of a PCRA petition “is limited to

examining whether the PCRA court’s determination is supported by the

evidence of record and whether it is free of legal error.” Commonwealth v.

Ousley, 21 A.3d 1238, 1242 (Pa. Super. 2011) (citation omitted).

             Appellant’s First Issue: Validity of the Guilty Plea

       For his first issue, Appellant raises five arguments, which we address in

detail below.

                                     First Argument

       Appellant’s first argument is that plea counsel was ineffective for failing

to object to the trial court’s defective guilty plea colloquy. Appellant’s Brief at

____________________________________________


for such an appeal; and (5) Appellant was denied the opportunity to present
character witness testimony.       We note that Appellant raised his claim
regarding plea counsel’s ineffectiveness for failing to request a PSI for the first
time in his petition for remand.




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7. In support, Appellant claims that the court’s oral colloquy did not meet the

mandatory      requirements of       Pennsylvania   Rule   of   Criminal Procedure

590(B)(2),9 specifically that the court failed to ask him whether he was aware

“that the judge is not bound by the terms of any plea agreement tendered

unless the judge accepts such agreement.” Id. (referencing Pa.R.Crim.P. 590

cmt.).

       “A criminal defendant has the right to effective counsel during a plea

process as well as during trial.” Commonwealth v. Rathfon, 899 A.2d 365,

369 (Pa. Super. 2006) (citation omitted).        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.” Commonwealth v. Hickman, 799 A.2d 136,

141 (Pa. Super. 2002) (citations and internal quotation marks omitted).

       In Commonwealth v. Allen, 732 A.2d 582, 587 (Pa. 1999), the

Pennsylvania Supreme Court stated:

       Allegations of ineffectiveness in connection with the entry of a
       guilty plea will serve as a basis for relief only if the ineffectiveness
       caused appellant to enter an involuntary or unknowing plea. In
       determining whether a guilty plea was entered knowingly and
       intelligently, a reviewing court must review all of the
       circumstances surrounding the entry of that plea.


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9 “The judge shall conduct a separate inquiry of the defendant on the record
to determine whether the defendant understands and voluntarily accepts the
terms of the plea agreement on which the guilty plea or plea of nolo
contendere is based.” Pa.R.Crim.P. 590(B)(2).


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Id. (citations omitted); accord Commonwealth v. Robinson, ___ A.3d ___,

2018 PA Super 109, 2018 WL 2041425, at *6 (filed May 2, 2018) (en banc).

“[T]o establish prejudice, the defendant must show that there is a reasonable

probability that, but for counsel’s errors, he would not have pleaded guilty and

would have insisted on going to trial.” Commonwealth v. Barndt, 74 A.3d

185, 192 (Pa. Super. 2013) (quotation marks and citations omitted).

      A valid guilty plea colloquy must delve into six areas: (1) the nature of

the charges; (2) the factual basis for the plea; (3) the right to a jury trial; (4)

the presumption of innocence; (5) the maximum sentencing ranges; and (6)

the plea court’s power to deviate from any recommended sentence.              See

Commonwealth v. Flanagan, 854 A.2d 489, 500 & n.8 (Pa. 2004);

Pa.R.Crim.P. 590 cmt.

      In determining whether a guilty plea was entered knowingly and
      voluntarily, . . . a court is free to consider the totality of the
      circumstances surrounding the plea. Furthermore, nothing in
      [Rule 590] precludes the supplementation of the oral colloquy by
      a written colloquy that is read, completed, and signed by the
      defendant and made a part of the plea proceedings.

Commonwealth v. Bedell, 954 A.2d 1209, 1212-13 (Pa. Super. 2008)

(citations omitted); see also Pa.R.Crim.P. 590 cmt. A “person who elects to

plead guilty is bound by the statements he makes in open court while under

oath and he may not later assert grounds for withdrawing the plea which

contradict the statements he made at his plea colloquy.” Commonwealth v.

Pollard, 832 A.2d 517, 523 (Pa. Super. 2003) (citation omitted).




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       Here, Appellant’s claim that his colloquy was defective because the

court, during its oral colloquy, failed to inquire as to his awareness “that the

judge is not bound by the terms of any plea agreement tendered unless the

judge accepts such agreement” is misplaced. The written guilty plea colloquy

explicitly includes such a statement, and Appellant signed the colloquy in the

court’s presence. N.T. Guilty Plea Hr’g at 39-41. Thus, Appellant’s claim that

plea counsel was ineffective lacks arguable merit. See Bedell, 954 A.2d at

1212-13.

                                   Second Argument

       Second, Appellant argues the plea was involuntary given his numerous

requests to proceed to trial. Appellant’s Brief at 8-9. Appellant suggests that

he was coerced into entering a plea, and in support, he quotes the following

exchange from the guilty plea hearing:

       The Court: Is that a fair account of what happened?

       [Appellant]: Can I confer with my attorney?

       The Court: Yes.

       (Discussion held off the record between [Appellant] and his
       counsel)

       [Appellant]: I disagree –

       The Court: We have a jury in the back.[10]


____________________________________________


10Appellant’s negotiated plea hearing took place on the day that his jury trial
was scheduled to begin.


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     [Counsel for Appellant]: He was going to qualify that statement.
     Can you let him finish?

     The Court: Go ahead.

     [Appellant]: I agree with some of the accusations but I think it’s
     a fair account.

     The Court: I will ask the question again. Did you hear the
     representation made by the [Commonwealth]?

     [Appellant]: Yes.

     The Court: Is that a fair account of what happened?

     [Appellant]: Again, I disagree –

     The Court: Let’s go to trial.

     [Appellant]: Yes, your Honor.

     The Court: Sir, I am not here to play games. If you wish to enter
     into a negotiated guilty plea, fine, I will accept the plea. The
     [Commonwealth] has summarized the evidence against you. My
     question was: Was that a fair account of what happened? What’s
     your answer?

     [Appellant]: Yes.

     The Court: Are those the facts you are pleading guilty to?

     [Appellant]: Yes.

     The Court: Are you pleading guilty because you are guilty?

     [Appellant]: I am pleading guilty because it’s in my best interest,
     your Honor.

     The Court: You’re telling me that you’re not guilty, that you did
     not have sexual intercourse with her by force or threat against her
     will?

     [Appellant]: Yes.


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      The Court: You’re telling me that you did not have sexual
      intercourse with the complainant by force or threat against her
      will?

      [Appellant]: No.

      The Court: I will try this one more time. Are you pleading guilty
      to the aforementioned offenses, rape and intimidation of a witness
      because you are guilty; “Yes” or “No”?

      [Appellant]: Yes, your Honor.

N.T., Guilty Plea Hr’g at 34-36. Based on this exchange, Appellant argues

“the trial court consistently pressed [sic] the Appellant to accept a plea of

guilty.” Appellant’s Brief at 10.

      In Commonwealth v. Johnson, 875 A.2d 328 (Pa. Super. 2005), this

Court addressed whether the trial court improperly pressured the defendant

into accepting a guilty plea. In Johnson, the following transpired:

      Twelve pages of the hearing transcript document the court’s
      persistent advisements, which included the following: that the
      Commonwealth’s function was to protect Appellant’s best interest;
      that the offer on the table was among the best he had ever
      witnessed as a jurist; that Appellant would be “extremely
      fortunate” if his other appeal garnered a new trial, let alone arrest
      of judgment, and that the new trial would likely end in another
      conviction with the possibility of consecutive sentences instead of
      the present offer’s guarantee of a concurrent sentence; that [the
      defendant] was “fortunate to have such a cooperative D.A., he has
      taken into consideration that sentence in Delaware County”; and
      that [the defendant] would only be fifty-eight years old when he
      completes his thirty year sentence, and life would “go on.” The
      court also criticized [the defendant] for “squabbling over two more
      years which has no impact whatsoever in what’s going to go on in
      your life because of the sentence in Delaware County.” When
      Appellant agreed to plead guilty, the court declared “I think you
      made a wise decision, sir. . . .” The court then imposed a sentence
      of ten to twenty years’ imprisonment to run concurrently to his
      Delaware County sentence.

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Id. at 330 (footnote and citations omitted).

      The Johnson Court explained:

      It is settled that a plea entered on the basis of a sentencing
      agreement in which the judge participates cannot be considered
      voluntary. Indeed, a trial judge is forbidden from participating in
      any respect in the plea bargaining process prior to the offering of
      a guilty plea. When a judge becomes a participant in plea
      bargaining he brings to bear the full force and majesty of his
      office. The unquestioned pressure placed on the defendant
      because of the judge’s unique role inevitably taints the plea.

Id. at 331-32 (citations, quotation marks, and ellipses omitted). Based on

the trial court’s “persistent advisements,” the Johnson Court held that the

defendant’s guilty plea was involuntary and vacated the judgment of sentence.

Id. at 332.

      Instantly, we have reviewed the disputed passage and discern no basis

for reversal. See id. The trial court, unlike the trial court in Johnson, was

questioning Appellant for clarification on whether he was pleading guilty or

not. Cf. id. at 330. In contrast to the trial court in Johnson, the court here

did not engage Appellant at length in an attempt to persuade him to accept

the plea—the court here did not even discuss the terms of the plea. Cf. id.

In our view, the trial court did not participate in the plea process, pressure

Appellant, or otherwise coerce the entry of his plea.

                     Third, Fourth, and Fifth Arguments

      Third, Appellant claims he was not advised of his appellate rights.

Appellant’s Brief at 11. We disagree. The record shows that Appellant was


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apprised of his appellate rights and stated that he understood them on the

record. See N.T. Guilty Plea Hr’g at 60-63.

       Fourth, Appellant raises a claim of actual innocence for rape, specifically

that the victim was treated for gonorrhea, which he alleges he does not have.

Appellant’s Brief at 11.       To the extent this claim can be construed as a

challenge to the validity of his guilty plea, his claim does not entitle him to

relief. See Bedell, 954 A.2d at 1216.

       Lastly, Appellant asserts that all prior counsel, including PCRA counsel,

were ineffective by failing to raise these arguments.11 Because we discern no

error, Appellant is not entitled to relief. See Commonwealth v. Taylor, 933

A.2d 1035, 1042 (Pa. Super. 2007) (“Counsel cannot be found ineffective for

failing to pursue a baseless or meritless claim.”); see also Barndt, 74 A.3d

at 192 (holding defendant must establish he would not have pleaded guilty

but for plea counsel’s error).

                    Appellant’s Second Issue: Lack of PSI

       In his second claim, Appellant contends that plea counsel was ineffective

for failing to object when the trial court did not order a PSI, and that the

decision was made without Appellant’s knowledge. Appellant, however, did


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11We address Appellant’s claim that PCRA counsel’s Turner/Finley letters
were inadequate for failing to include these issues in our discussion of
Appellant’s third issue.




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not raise this issue in his pro se PCRA petition or in his Rule 907 response.

Thus, this issue is waived.12

       Moreover, we find no merit to Appellant’s claim.                  The record

demonstrates that counsel waived the PSI in Appellant’s presence at the plea

hearing. N.T. Guilty Plea Hr’g at 43. Additionally, since the trial court imposed

the negotiated sentence, no further purpose would have been achieved by a

PSI.

     Appellant’s Third and Fourth Issues: Ineffective PCRA Counsel

       For his third claim, Appellant argues that PCRA counsel was ineffective.

First, according to Appellant, PCRA counsel’s Turney/Finley letter was

defective because it did not include all of the issues he raised and did not

identify what counsel reviewed.          Appellant’s Brief at 6.   Second, Appellant

contends that counsel “failed to properly amend and/or supplement [his]

inarticulately drafted pro se PCRA.” Appellant’s Brief at 6-7.

       For   his   fourth    claim,    Appellant   again   alleges   that   counsel’s

Turner/Finley letter was defective, as it did not include all of the issues that

Appellant raised in his pro se petition. Id. at 14. He also contends that he




____________________________________________


12Appellant incorrectly concludes that he preserved this issue by raising it in
an application for remand with this Court. However, “[i]ssues not raised before
the lower court are waived and cannot be raised for the first time on appeal.”
Pa.R.A.P. 302(a).


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had the right to independent appellate counsel. Because Appellant’s third and

fourth claims are related, we will address them together.

       It is well settled that a PCRA petitioner has a right to counsel on his first

petition.   Commonwealth v. Lindsey, 687 A.2d 1144, 1145 (Pa. Super.

1996). However, court-appointed counsel is not obligated to pursue meritless

claims.     Thus, to effect a petitioner’s right to counsel in a first PCRA

proceeding, PCRA counsel must file either an amended PCRA petition or seek

withdrawal under Turner/Finley. Commonwealth v. Burkett, 5 A.3d 1260,

1277 (Pa. Super. 2010).

       Counsel seeking to withdraw under Turner/Finley must review the case

zealously. See Commonwealth v. Muzzy, 141 A.3d 509, 510 (Pa. Super.

2016). Then, counsel must submit a “no merit” letter to the trial court (1)

detailing the nature and extent of counsel’s diligent review of the case; (2)

listing the issues which petitioner wants to have reviewed, explaining why and

how those issues lack merit; and (3) requesting permission to withdraw. Id.

at 510-11. Counsel must also send the petitioner (1) a copy of the “no merit”

letter/brief; (2) a copy of counsel’s petition to withdraw; and (3) a statement

advising petitioner of the right to proceed pro se or by new counsel. Id. at

511.

       Where    PCRA    counsel’s    no-merit   letter   satisfies   the   technical

requirements of Turner/Finley, the PCRA court must conduct an independent

review of the merits of the case. Id. If the court agrees with counsel that


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the claims are without merit, the court may permit counsel to withdraw and

deny relief without a hearing. Id.

      Here, PCRA counsel properly filed a Turner/Finley no-merit letter,

which thoroughly discussed Appellant’s arguments set forth in his pro se PCRA

petition and found that they lacked merit.       See Turner/Finley Letter,

4/28/16, at 1. Counsel also filed a supplemental Turner/Finley letter that

addressed each of the claims raised in Appellant’s 907 response that did not

relate to PCRA counsel’s own ineffectiveness.     See Finley Letter Suppl.,

8/15/16, at 1.      Counsel also forwarded Appellant a copy of both

Turner/Finley letters, a copy of his petition to withdraw and a statement

advising Appellant of the right to proceed pro se or with new counsel.

Therefore, Appellant’s argument that counsel’s no-merit letter did not comply

with Turner/Finley is meritless. See Burkett, 5 A.3d at 1277; Muzzy, 141

A.3d at 510-11.

      The PCRA court also conducted an independent review of the record and

determined that Appellant’s claims were without merit. Based on our review

of the record, we agree with counsel’s and the court’s conclusion that

Appellant’s underlying claims lack merit. Given that Appellant’s underlying

claims lack merit, PCRA counsel was not ineffective for failing to raise them.

Taylor, 933 A.2d at 1042. Similarly, Appellant’s claim that he was entitled to

new PCRA counsel fails. See Rykard, 55 A.3d at 1183 n.1 (noting that once

PCRA counsel has been permitted to withdraw pursuant to Turner/Finley,


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new counsel shall not be appointed); see also Commonwealth v. Maple,

559 A.2d 953, 956 (Pa. Super. 1989).

      Finally, we note that throughout his brief, Appellant makes a general

claim that the PCRA court should have held an evidentiary hearing based on

the merits of his claim to determine trial counsel’s ineffectiveness. However,

because we discern no error or abuse of discretion in the court’s conclusion

that Appellant failed to establish any genuine issue of fact that relief was due

on his claims, no further proceedings are necessary. See Pa.R.Crim.P. 907(1)

Commonwealth v. Smith, 121 A.3d 1049, 1052 (Pa. Super. 2015) (“[T]he

PCRA court can decline to hold a hearing if there is no genuine issue

concerning any material fact and the petitioner is not entitled to post-

conviction collateral relief, and no purpose would be served by any further

proceedings” (citation omitted)).

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/26/18




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