J-S12014-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    WILLIAM GNECCO                             :
                                               :
                       Appellant               :   No. 1960 EDA 2019

               Appeal from the PCRA Order Entered June 28, 2019
       In the Court of Common Pleas of Bucks County Criminal Division at
                        No(s): CP-09-CR-0004159-1986


BEFORE:      SHOGAN, J., McCAFFERY, J., and COLINS, J.*

MEMORANDUM BY SHOGAN, J.:                                 FILED JULY 31, 2020

        Appellant, William Gnecco, appeals pro se from the June 28, 2019 order

entered in the Bucks County Court of Common Pleas denying his amended pro

se petitions filed pursuant to the Post Conviction Relief Act (“PCRA”), 42

Pa.C.S. §§ 9541-9546. After careful review, we affirm.

        This Court previously recounted the facts underlying Appellant’s

conviction, as follows:

               Gnecco met the victim, George Keys, in June 1985. Shortly
        thereafter, Gnecco secured employment in Keys’ Bucks County
        home, where eventually the relationship became a homosexual
        one between the two men. Gnecco, who was married with two
        children, explained his repeated absence from the family home by
        falsely representing that he worked for organized crime figures.
        As a part of Gnecco and Keys’ arrangement, the two operated a
        restaurant together. Although ownership of the restaurant was in
        Keys’ name, it was held out as a partnership between Gnecco and
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*   Retired Senior Judge assigned to the Superior Court.
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        Keys and in the event of Keys’ death, it was their intention that
        ownership of the business be transferred to Gnecco.

               On April 14, 198[6,] Gnecco and Keys argued about
        Gnecco’s intention to return home the next day to visit his wife
        and children. The argument escalated into a physical altercation
        in which Gnecco, at one point, obtained a hammer which he used
        to beat Keys in the head. According to the medical examiner’s
        testimony, Keys’ death was caused by a blow to the head. After
        Keys’ death, Gnecco removed the victim’s jewelry and other
        personal effects. Included in the property taken was a distinctive
        five karat diamond ring, valued at approximately $15,000.00, that
        Gnecco testified he noticed during the struggle. Keys’ body was
        then placed in plastic bags and secreted on the side of the
        restaurant, and later buried. For approximately three months
        after Keys’ murder, Gnecco repeatedly represented that he did not
        know of Keys’ whereabouts. On July 23, 1986[,] Gnecco admitted
        to authorities that he buried Keys and lead the police to his body,
        but Gnecco maintained that Keys was killed by organized crime
        figures. Gnecco eventually confessed to Keys’ murder.

Commonwealth v. Gnecco, 555 A.2d 244, 496 PHL 1988 (Pa. Super. filed

November 10, 1988) (unpublished memorandum).

        In addition, the PCRA court provided the following summary of the

subsequent procedural history:

               In capsule, on December 1, 1986, [Appellant] entered a
        guilty plea to Murder and nolo contendere pleas to charges of
        Robbery and Possession of an Instrument of Crime.[1] A non-jury
        trial was held to determine degree of guilt as to the murder
        charge. [Appellant] was subsequently found guilty of Murder in
        the 1st Degree on December 10, 1986, and sentenced to life in
        prison on June 16, 1987. On June 26, 1987, [Appellant] filed a
        Motion to Withdraw Guilty Plea, and the [c]ourt vacated his
        sentence on July 1, 1987. After further proceedings, [Appellant]
        was again sentenced on January 15, 1988[,] to life in prison for
        the Murder conviction.


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1   18 Pa.C.S. §§ 2502, 3701(a)(5), and 907(a), respectively.

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          On February 12, 1988, [Appellant] filed a direct appeal to
     the Superior Court of Pennsylvania, which affirmed his judgment
     of sentence on November 10, 1988. The Supreme Court of
     Pennsylvania denied allocator on September 1, 1989.

            On January 17, 1995, [Appellant] filed a timely pro se
     Petition Under Post Conviction [Relief] Act. The Public Defender
     was appointed to represent him, but was subsequently replaced
     by conflict counsel, Keith Williams, Esquire. A [PCRA] hearing was
     apparently     held   on    May    31,   1995,    and   continued.
     Attorney Williams was thereafter granted permission to withdraw
     on July 7, 1995, and [Appellant] was directed to proceed either
     pro se or through privately retained counsel.

           It appears that [Appellant] filed pro se a Petition to Amend
     Post Conviction on October 3, 1995, which was returned to the file
     for consideration at the time of the next PCRA hearing, which was
     never scheduled.

           The matter then remained dormant for more than twenty
     (20) years, until [Appellant] filed the [instant] Amended Petition
     for Post-Collateral Conviction Relief and Withdrawal of Pleas of
     Guilty and Nolo Contendere per [the PCRA Act] on June 18, 2018.
     [This was an amendment to his PCRA petition filed in 1995).] The
     matter was then reassigned to this [c]ourt, and on August 7,
     2018, out of an abundance of caution, we (improvidently)
     appointed PCRA counsel, Patrick J. McMenamin, Jr., Esquire, to
     represent [Appellant] in his most recent request for PCRA relief.
     Mr. McMenamin was subsequently granted three extensions of
     time to file an amended PCRA petition or response, and on
     February 14, 2019, he filed a Post Conviction Relief Act No Merit
     Letter and Memorandum of Law Pursuant to Commonwealth v.
     Finley, and a Petition to Withdraw as Counsel.

           In his No Merit Letter, Mr. McMenamin asserted that he had
     thoroughly reviewed the matter with [Appellant], and he
     comprehensively analyzed any potential meritorious issues, after
     which he concluded that there were no meritorious issues to
     pursue on his client’s behalf.




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             On February 26, 2019, [Appellant] filed a Motion for
       Grazier[2] Colloquy.

             On March 5, 2019, after reviewing the case and
       Mr. McMenamin’s No Merit Letter, this [c]ourt issued a Notice of
       Intent to Dismiss [Appellant’s] request for PCRA relief, pursuant
       to Pa.R.Crim.P. 907.

             On March 15, 2019, the Commonwealth filed an Answer to
       [Appellant’s] Amended PCRA Petition, which asserted that his
       issues were devoid of merit and that he had failed to support his
       claims with any evidence. The Commonwealth also asserted that,
       as a result of [Appellant’s] abandonment of his claims for over two
       decades and the passage of over thirty (30) years since his trial,
       the Commonwealth had been prejudiced by the deaths of the lead
       investigators and at least three other witnesses.

             On March 21, 2019, [Appellant] filed a “Pro Se Response to
       Pa.Crim.P. 907 Notice and Grazier Hearing Denial,” in which he
       again presented the issues that had been addressed and found to
       be non-meritorious in Mr. McMenamin’s No Merit Letter. These
       issues included claims of a defective colloquy plea, ineffective
       assistance of counsel, prosecutorial misconduct, an illegal
       sentence, lack of jurisdiction, and actual and legal innocence.
       [Appellant] also requested oral argument and a Grazier hearing.

             Once again out of an abundance of caution, this [c]ourt
       granted [Appellant’s] request for a Grazier Hearing. The hearing
       was subsequently held on April 29, 2019, after which we granted
       a waiver of his right of counsel and directed that he was to
       represent himself and file an amended PCRA petition within thirty
       (30) days. [Appellant] filed an amended PCRA petition on May 15,
       2019.

            On June 26, 2019, we issued an Order granting Mr.
       McMenamin’s motion to withdraw as [Appellant’s] PCRA counsel,
       and on June 28, 2019, we issued an Order denying [Appellant’s]
       amended PCRA petition.

            On July 11, 2019, [Appellant] filed a Notice of Appeal to the
       Superior Court from our June 28, 2019 Order denying his request
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2   Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).

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       for PCRA relief. On July 29, 2019, in compliance with our Order
       of July 12, 2019, [Appellant] filed his Statement of Errors
       Complained of on Appeal Pursuant to Pa.R.A.P. 1925(b), but he
       failed to serve a copy on our Chambers. His Statement of Errors
       is reproduced, verbatim, below. [3]

PCRA Court Opinion, 9/23/19, at 1–3.

       The PCRA court provided the following reasons for denying Appellant’s

PCRA petition:

              In the instant matter, after a careful review of the record
       and Mr. McMenamin’s No Merit Letter, this [c]ourt determined,
       pursuant to Pa.R.Crim.P. 907(1), that Mr. Gnecco had not raised
       any issues of genuine fact, that his request for post-conviction
       collateral relief had no merit and no purpose would be served by
       any further proceedings. As a result, we issued a 907 Notice of
       Intent to Dismiss. After receiving the Commonwealth’s responsive
       Answer to Mr. Gnecco’s Amended PCRA Petition and Mr. Gnecco’s
____________________________________________


3 Pa.R.A.P. 1925(b)(1) directs that an appellant’s 1925(b) statement must be
served upon the trial judge.       “[F]ailure to comply with the minimal
requirements of Pa.R.A.P. 1925(b) will result in automatic waiver of the issues
raised.” Commonwealth v. Schofield, 888 A.2d 771, 774 (Pa. 2005); see
also Commonwealth v. Castillo, 888 A.2d 775, 780 (Pa. 2005).

   Despite this directive, we decline to find waiver herein for the following
reasons. First, the certificate of service attached to Appellant’s 1925(b)
statement represents that a copy was mailed to the PCRA court’s chambers.
Additionally, the criminal docket indicates that the statement was served upon
the PCRA court on July 29, 2019. Second, we note that the purpose of serving
the trial court with the 1925(b) statement is to permit the appellate court to
conduct meaningful review of the issues. See Schaefer v. Aames Capital
Corp., 805 A.2d 534, 535 (Pa. Super. 2002) (“An appellate court can only
conduct meaningful review where the appellant submits a Rule 1925(b)
statement, and the [trial] court responds to those issues in its opinion.”)
(quotation omitted). As is apparent from the PCRA court’s 1925(a) opinion,
it was aware of the issues raised in Appellant’s 1925(b) statement and
discussed those issues in its opinion. Therefore, our review is not hampered
by Appellant’s alleged failure to serve his 1925(b) statement on the PCRA
court, and we will address the issues raised therein.



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       “Pro Se Response to Pa.Crim.P. 907 Notice and Grazier Hearing
       Denial,” we again concluded that his request for relief contained
       no meritorious issues. We therefore issued our subsequent Order
       of June 2[8], 2019, denying and dismissing Mr. Gnecco’s amended
       PCRA petition without a hearing, based upon not only our
       conclusion that Mr. Gnecco’s claims were untimely and without
       merit, but that in addition, the Commonwealth had been unduly
       prejudiced by Mr. Gnecco’s delay in litigating his PCRA claims.

PCRA Court Opinion, 9/23/19, at 5.

       On appeal, Appellant raises three issues, which are identical to the

issues raised in his 1925(b) statement:

             1. Did the Court err by dismissing the PCRA Petition without
       a hearing?

              2. Was PCRA Counsel Ineffective?

             3. Did the Court err by failing to have a 42 Pa.C.S. §9543(b)
       hearing before dismissal for prejudice to Commonwealth?

Appellant’s Brief at 5.4

       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.



____________________________________________


4  Due to the procedural posture of this case, i.e., the PCRA court granted
counsel’s motion to withdraw and permitted Appellant to proceed pro se after
a Grazier hearing, we need not conduct a traditional Commonwealth v.
Turner, 544 A.2d 927 (Pa. 1988), and Commonwealth v. Finley, 550 A.2d
213 (Pa. Super. 1988) (en banc) analysis. See Commonwealth v. Shaw,
217 A.3d 265, 268 n.3 (Pa. Super. 2019) (explaining that when counsel has
been appointed to represent PCRA petitioner and that right has been fully
vindicated following grant of counsel’s petition to withdraw under
Turner/Finley, court shall not appoint new counsel and an appellant must
look to his own resources for future proceedings) (citation omitted).

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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. Rykard, 55 A.3d 1177, 1183 (Pa.

Super. 2012).

      We initially address the sufficiency of Appellant’s Pa.R.A.P. 1925(b)

statement of errors complained of on appeal. In his first two issues, Appellant

has simply suggested his petition was improperly dismissed without a hearing

and that PCRA counsel was ineffective. Appellant’s Pa.R.A.P. 1925(b)

statement, 7/26/19, at ¶¶ 1, 2.

      As this Court has previously concluded:

      “A Concise Statement which is too vague to allow the court to
      identify the issues raised on appeal is the functional equivalent to
      no Concise Statement at all.” Commonwealth v. Dowling, 778
      A.2d 683, 686–687 (Pa. Super. 2001). “Even if the trial court
      correctly guesses the issues [a]ppellants raise on appeal and
      writes an opinion pursuant to that supposition the issues [are] still
      waived.” Commonwealth v. Heggins, 809 A.2d 908, 911 (Pa.
      Super. 2002).

Commonwealth v. Vurimindi, 200 A.3d 1031, 1038 (Pa. Super. 2018).

Further, as our Supreme Court instructed more than twenty years ago, “Any

issues not raised in a Pa.R.A.P. 1925(b) statement will be deemed waived.”

Commonwealth v. Lord, 719 A.2d 306, 309 (Pa. 1998).

      The compulsory requirement of adhering to Pa.R.A.P. 1925 is captured

in the following excerpt from Kanter v. Epstein, 866 A.2d 394 (Pa. Super.

2004):


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     This Court explained in Riley v. Foley, 783 A.2d 807, 813 (Pa.
     Super. 2001), that Rule 1925 is a crucial component of the
     appellate process because it allows the trial court to identify and
     focus on those issues the parties plan to raise on appeal. This
     Court has further explained that “a Concise Statement which is too
     vague to allow the court to identify the issues raised on appeal is
     the functional equivalent to no Concise Statement at all.”
     Commonwealth v. Dowling, 778 A.2d 683, 686-[6]87 (Pa.
     Super. 2001). “Even if the trial court correctly guesses the issues
     Appellants raise[] on appeal and writes an opinion pursuant to that
     supposition the issues [are] still waived.” Commonwealth v.
     Heggins, 809 A.2d 908, 911 (Pa. Super. 2002).

Kanter, 866 A.2d at 400.

      Our law further makes clear that satisfaction of Pa.R.A.P. 1925(b) is not

simply a matter of filing any statement.     Rather, the statement must be

concise and sufficiently specific and coherent as to allow the trial court to

understand the specific allegation of error and offer a rebuttal.          These

requirements are evident in the following language from Dowling:

             When a court has to guess what issues an appellant is
      appealing, that is not enough for meaningful review. When an
      appellant fails adequately to identify in a concise manner the
      issues sought to be pursued on appeal, the trial court is impeded
      in its preparation of a legal analysis which is pertinent to those
      issues.

Dowling, 778 A.2d at 686-687 (citations and quotation marks omitted).

      In addition, we note that “[a]lthough this Court is willing to liberally

construe materials filed by a pro se litigant, pro se status confers no special

benefit upon the appellant.” Commonwealth v. Adams, 882 A.2d 496, 498

(Pa. Super. 2005) (citing Commonwealth v. Lyons, 833 A.2d 245, 252 (Pa.

Super. 2003)). “To the contrary, any person choosing to represent himself in

a legal proceeding must, to a reasonable extent, assume that his lack of

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expertise and legal training will be his undoing.” Adams, 882 A.2d at 498

(citing Commonwealth v. Rivera, 685 A.2d 1011 (Pa. Super. 1996)).

      As to Appellant’s first and second issues, the failure to hold an

evidentiary hearing and his blanket assertion that PCRA counsel was

ineffective, Appellant’s Pa.R.A.P. 1925(b) statement is too vague to allow the

PCRA court to easily discern the issues Appellant intended to pursue on appeal.

This conclusion is not altered by the fact that the PCRA court speculated that

a hearing was not required because:

             The issues [Appellant] has attempted to raise which involve
      his allegedly defective colloquy plea and ineffective assistance of
      counsel have been previously litigated or do not withstand legal
      scrutiny.     In addition to his guilty plea, the evidence
      overwhelmingly established his guilt. We agree with [appointed
      counsel’s] analysis and conclusion that [Appellant’s] guilty plea
      was appropriate under the law and that any claims of ineffective
      assistance of trial counsel were completely without merit.
      [Appellant] is obviously unhappy with his sentence of
      incarceration for life, and is seeking any avenue that might offer
      relief from his current predicament. We found, however, no merit
      to [Appellant’s] challenges to his sentence, and determined that a
      hearing would serve no purpose.

PCRA Court Opinion, 9/23/19, at 5.

      It is apparent from the PCRA court’s abbreviated discussion that it was

compelled to guess the issues Appellant claims merited a hearing. The brevity

of its analysis is understandable in light of the paucity of Appellant’s 1925(b)

statement. While Appellant contends in his brief that the court erred by failing

to address meritorious issues presented in his PCRA petition, he did not

identify any of those issues in his Rule 1925(b) statement. Raising them in a


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brief cannot save them from waiver. See Commonwealth v. Lemon, 804

A.2d 34, 38 (the specific challenges in appellant’s brief did not excuse his

failure to raise these detailed issues in his Rule 1925(b) statement). As to

Appellant’s blanket assertion that PCRA counsel was ineffective, the PCRA did

not even attempt to address the issue, finding that Appellant “failed to provide

any specific information or evidence that would enable this Court to address

his allegations of PCRA counsel’s ineffectiveness or explain how his PCRA

counsel provided ineffective assistance.” PCRA Court Opinion, 9/23/19, at 7.

Thus, we conclude that Appellant’s first two issues are waived.

      In his third issue, Appellant alleges that it was error for the PCRA court

to dismiss, without a hearing, his request for PCRA relief on the basis of

prejudice to the Commonwealth, in violation of the requirement of 42 Pa.C.S.

§ 9543(b). As to this issue, Appellant’s Rule 1925(b) statement is specific

enough to permit review.

      Section 9543(b) instructs:

      (b) Exception.--Even if the petitioner has met the requirements
      of [42 Pa.C.S. § 9543(a)], the petition shall be dismissed if it
      appears at any time that, because of delay in filing the petition,
      the Commonwealth has been prejudiced either in its ability to
      respond to the petition or in its ability to re-try the petitioner. A
      petition may be dismissed due to delay in the filing by the
      petitioner only after a hearing upon a motion to dismiss. This
      subsection does not apply if the petitioner shows that the petition
      is based on grounds of which the petitioner could not have
      discovered by the exercise of reasonable diligence before the delay
      became prejudicial to the Commonwealth.




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42 Pa.C.S. § 9543(b) (emphasis added).        Although the statute specifically

refers to a delay in filing a PCRA petition, case law has extended this exception

to a failure to pursue a previously filed petition.   See Commonwealth v.

Renchenski, 988 A.2d 699, 703 (Pa. Super. 2010) (finding purpose of

§ 9543(b) was to “ensure that the Commonwealth is not prejudiced by a

defendant’s delay in pursuing his post-conviction rights.”).

      The PCRA court conceded that it did not hold a hearing pursuant to

Section 9543(b) before it dismissed Appellant’s petition and that its June 28,

2019 order indicated that Appellant’s amended petition filed on May 15, 2019,

was “untimely.”     Order, 6/28/19, at unnumbered 1.           Specifically, the

concluding paragraph of the PCRA court’s order stated:         “this [c]ourt has

determined that the Commonwealth has been unduly prejudiced by

[Appellant’s] delay in litigating his PCRA claims, and those claims are untimely

and without merit.” Id.

      This Court has ruled that, absent a hearing on the Commonwealth’s

motion to dismiss, Section 9543(b) specifically precludes the dismissal of a

PCRA petition based upon prejudicial delay. Commonwealth v. Williams,

980 A.2d 510, 520 (Pa. 2009) (citations omitted).           Thus, dismissal of

Appellant’s petition on this basis alone would be improper.

      However, even assuming that the failure to hold a hearing pursuant to

Section 9543(b) was error, the PCRA court explained in its Rule 1925(a)

opinion why it would be harmless error:


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              We are cognizant of the provision of § 9543(b) that “[a]
       petition may be dismissed due to delay in the filing by the
       petitioner only after a hearing upon a motion to dismiss.”
       However, it must be noted that our June 2[8], 2019 conclusion
       that the Commonwealth would be prejudiced by the delay in
       prosecuting this PCRA petition was not the primary reason for our
       decision to deny [Appellant’s] request for PCRA relief.
       Accordingly, even assuming arguendo that undue prejudice to the
       Commonwealth can be ascertained only after an evidentiary
       hearing is held, so that it was error for this [c]ourt to dismiss
       [Appellant’s] PCRA petition on that basis, such error is harmless.[5]

              We concluded from a review of the record that [Appellant’s]
       claims had no merit and did not warrant a hearing. We further
       observed that the prejudice experienced by the Commonwealth
       due to that delay and the deaths of those significant witnesses, as
       evidenced by the judicially recognizable material submitted by the
       Commonwealth in its Answer to support its allegation of prejudice,
       was supportive of that conclusion. To require a hearing under
       these circumstances would constitute a substantial waste of
       judicial and non-judicial resources.

PCRA Court Opinion, 9/23/19, at 9.

      The PCRA court explained that its failure to hold the hearing was not

reversible error because prejudice to the Commonwealth was only one reason

for dismissing Appellant’s petition. Our review of the record supports that PCRA

court’s position and reflects that Section 9543(b) was not the exclusive basis

for the dismissal.     The PCRA court’s June 28, 2019 order concluded that

Appellant’s PCRA claims were “without merit.” Order, 6/28/19, at unnumbered

1. See Commonwealth v. Maddrey, 205 A.3d 323, 328, (Pa. Super. 2019)

(“[t]here is no absolute right to an evidentiary hearing on a PCRA petition, and



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if the PCRA court can determine from the record that no genuine issues of

material fact exist, then a hearing is not necessary.”).

      Additionally, in its Notice of Intent to Dismiss, the PCRA court cited the

lack of merit in Appellant’s allegations as the reason it intended to dismiss the

petition. Notice of Intent to Dismiss Pursuant to Pa.R.Crim.P. 907, 3/5/19, at

unnumbered 1. Thus, prejudice to the Commonwealth was not the only reason

the PCRA court dismissed the petitions.

      Furthermore, Appellant did not file a response to the Commonwealth’s

Answer nor did he reference the Commonwealth’s claim of prejudice in his Pro

Se Response to Pa.R.Crim.P. 907 Notice and Grazier hearing denial. In his

brief, Appellant does not dispute the reasons the Commonwealth offered as to

why the thirty-year delay in litigating Appellant’s claim resulted in prejudice,

i.e., the lead investigator, three key Commonwealth witnesses, and trial

counsel were deceased, and the remaining witnesses’ memories would be

affected by the passage of time. Rather, Appellant posits that the delay was

due to the tactics of the Commonwealth and the court’s mismanagement of

the docket. Appellant’s Brief at 29. There is no support for either of these

allegations. Accordingly, Appellant has not established that he is entitled to

relief under 42 Pa.C.S. § 9543(b).

      As we have concluded that Appellant’s claims were either waived or lack

merit, we affirm the PCRA court’s order denying and dismissing his petitions.

      Order affirmed.


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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/31/20




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