J-S56042-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                             Appellee

                        v.

DWAYNE ALLAN HOLLINGER,

                             Appellant                No. 519 MDA 2015


                   Appeal from the PCRA Order March 4, 2015
               in the Court of Common Pleas of Lebanon County
               Criminal Division at No.: CP-38-CR-0001372-2011


BEFORE: SHOGAN, J., JENKINS, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                        FILED NOVEMBER 17, 2015

        Appellant, Dwayne Allan Hollinger, appeals from the order of March 4,

2015, which dismissed, following a hearing, his first, counseled petition

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

9546.     On appeal, Appellant claims he received ineffective assistance of

counsel at all stages of the underlying proceedings. We affirm.

        We take the underlying facts and procedural history in this matter

from the PCRA court’s March 4, 2015 opinion and our independent review of

the certified record.

        On July 19, 2011, the Commonwealth charged Appellant with rape,

involuntary deviate sexual intercourse (IDSI), burglary, two counts each of
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
J-S56042-15


false imprisonment and simple assault for an incident that occurred on July

17, 2011. The Lebanon County Public Defender’s Office accepted Appellant’s

case on July 19, 2011.    (See Motion for Appointment of Conflict Counsel,

10/13/11, at 1).

     On October 13, 2011, Chief Public Defender Brian Deiderick moved to

withdraw, citing a conflict of interest. (See id.). On October 14, 2011, the

trial court appointed Mark Schappell, Esquire to represent Appellant.

             Trial was originally scheduled to commence on January 12,
     2012 before the Honorable Charles T. Jones.          Prior to the
     commencement of trial, however, it was called to the [trial
     c]ourt’s attention that the victim . . . had not appeared despite
     the issuance of a subpoena. Detectives from the Lebanon City
     Police Bureau went to [the victim’s] home and she then
     appeared before Judge Jones. [The victim] informed Judge
     Jones that she did not wish to testify or press charges. She
     insisted that the sexual acts involved in the case were
     consensual and that she loved [Appellant]. Due to [the victim’s]
     statements, Judge Jones directed that the Public Defender’s
     Office be appointed to represent her and continued [Appellant’s]
     trial in this matter.

           A jury trial was then conducted in this matter on April 12,
     2012 at which [the victim] appeared. At trial, [she] testified
     that she was nineteen years of age. She explained that she and
     [Appellant] had lived together at some point prior to July 17,
     2011, but that she lived alone at the time of the incident. [The
     victim] resided in an efficiency apartment where she had her
     own room but shared kitchen and bathroom facilities with other
     tenants. On the evening of July 17, 2011, [the victim] arrived
     home at approximately 10:00 p.m. Soon afterward, [Appellant]
     knocked on her door. When she answered it, [Appellant] told
     her “I am here now and I am going to fuck you up.” He then
     shut the door and began to slap [the victim’s] face and choke
     her. After a brief period of time, [the victim] was able to
     convince [Appellant] to walk with her to a nearby Turkey Hill
     store. After going to the Turkey Hill, the two returned to [the
     victim’s] porch. [Appellant] was looking for a place to stay that

                                    -2-
J-S56042-15


     night. After he finally left, [the victim] also left and spent the
     night at the home of a friend.

            The following morning, [the victim] arrived back at her
     apartment at approximately 10:30 a.m. When she walked in,
     [Appellant] jumped out from behind her dresser, causing her to
     fall. He told her “now I am going to fuck you in your apartment.
     Other dudes—other guys sleep in my bed,” and “you should be
     my girl.” [Appellant] shut and locked the door, pushed [the
     victim] onto the bed and pulled her pants down. When [the
     victim] said “no,” [Appellant] said “we are going to either fuck
     the easy way or the hard way.” Despite [the victim’s] continued
     efforts to resist him, [Appellant] performed oral sex on her and
     also engaged in vaginal sexual intercourse with her.        [The
     victim] was five-months pregnant at the time and throughout
     this incident, [Appellant] repeatedly made threats to her. He
     also directed at least one threat to her unborn child.

           [The victim] was ultimately able to escape from
     [Appellant] after he allowed her to go to the bathroom. [She]
     hid her cellphone in her towel and called for help. [The victim]
     was later examined at Good Samaritan Hospital where she
     exhibited facial swelling, tenderness and discoloration on her
     neck, a 6-centimeter bruise on her left breast, dried secretions
     on her right inner thigh, and tenderness to her vaginal wall and
     perineum.

           When police later questioned [Appellant], he admitted that
     he did not have permission to enter [the victim’s] apartment and
     had gained access by crawling through a window. He also
     admitted that he had slapped [the victim], that [she] had told
     him to stop when he was having sex with her, and that he had
     ignored her pleas to stop.       [Appellant] made a recorded
     statement of the incident and a redacted version of that
     statement was played for the jury at trial.

(PCRA Court Opinion, 3/04/15, at 2-4) (record citations omitted).

     On April 12, 2012, the jury found Appellant guilty of all charges. On

June 14, 2012, the trial court issued an order stating that trial counsel was




                                    -3-
J-S56042-15


“unable to perform his duty” and appointed Kevin Dugan, Esquire, to

represent Appellant at sentencing. (Order of Court, 6/12/12, at 1).

      On October 24, 2012, the trial court made a sexually violent predator

(SVP) determination and held a sentencing hearing. Dr. Robert Stein, of the

Pennsylvania Sexual Offender Assessment Board, testified as to the basis of

his recommendation that the trial court should designate Appellant a SVP.

(See N.T. Sentencing, 10/24/13, at 4-20). Following Dr. Stein’s testimony,

the trial court found Appellant was a SVP. (See id. at 21). The trial court,

after noting that it reviewed the pre-sentence investigation report (PSI),

sentenced Appellant to an aggregate term of incarceration of not less than

eleven nor more than twenty-five years. (See id. at 28-30). On October

26, 2012, Attorney Dugan moved to withdraw his appearance, stating that

the trial court had appointed him to represent Appellant at sentencing only.

(See Petition to Withdraw Appearance, 10/26/12, at 1). On November 23,

2012, the trial court appointed Scott Stein, Esquire to represent Appellant.

            Appellate [c]ounsel filed [p]ost-[s]entence [m]otions [nunc
      pro tunc] on [Appellant’s] behalf on December 11, 2012. In his
      [m]otion, [a]ppellate [c]ounsel raised several arguments, but
      indicated that he had not yet received a transcript of the prior
      proceedings and asked for leave to file additional bases for relief
      within fourteen days of receiving the transcript. We issued a
      [p]ost-[s]entence [s]cheduling Order which required that
      [Appellant’s] [b]rief be filed by February 8, 2013. On February
      7, 2013, [a]ppellate [c]ounsel requested additional time to file
      his [b]rief as he had not yet received a copy of the transcript of
      [Appellant’s] jury trial. We extended the time for filing a [b]rief
      to March 15, 2013, with the [trial c]ourt’s [o]pinion due on May
      10, 2013 in accordance with Pa.R.Crim.P. 720.


                                     -4-
J-S56042-15


            The Commonwealth filed its [b]rief on May 8, 2013. Due
      to some confusion [on the part of the trial court], the trial
      transcript was not ordered until May 9, 2013 and [a]ppellate
      [c]ounsel was therefore unable to review it and prepare a [b]rief.
      Due to the time constraint for our decision on the [p]ost-
      [s]entence [m]otions pursuant to Rule 720, [the trial court was]
      required to file our [o]rder and [o]pinion on May 10, 2013. On
      that date, we entered an [o]rder with an accompanying [o]pinion
      in which we denied the [p]ost-[s]entence [m]otions.

(PCRA Ct. Op., at 17-18) (footnotes omitted).

      On June 7, 2013, Appellant filed a timely notice of appeal. On appeal,

Appellant challenged the weight and sufficiency of the evidence and raised

two claims alleging the trial court deprived him of due process when the trial

transcript was not made available to counsel and that, therefore, he could

not amend his post-sentence motion. (See Commonwealth v. Hollinger,

1039 MDA 2013, unpublished memorandum at *3-*4 (Pa. Super. filed June

6, 2014). On June 6, 2014, this Court denied Appellant’s direct appeal on

the merits. (See id. at *4-*7). Appellant did not seek leave to appeal to

the Pennsylvania Supreme Court.

      On May 14, 2014, Appellant, acting pro se, filed a PCRA petition. On

May 19, 2014, the PCRA court appointed counsel to represent Appellant. On

July 16, 2014, counsel filed an amended PCRA petition. On September 29,

2014, a PCRA hearing took place. Appellant and three of his prior counsel:

Mark Schappell, Kevin Dugan, and Scott Stein, testified at the hearing. On

March 4, 2015, the PCRA court denied the petition.        The instant, timely

appeal followed. On March 20, 2015, the PCRA court ordered Appellant to


                                    -5-
J-S56042-15


file a concise statement of errors complained of on appeal.            See Pa.R.A.P.

1925(b).    Appellant filed his timely Rule 1925(b) statement on March 30,

2015. On May 15, 2015, the PCRA court issued an opinion. See Pa.R.A.P.

1925(a).

       On appeal, Appellant raises the following questions for our review:

       1. Whether trial counsel was ineffective for failing to fully discuss
       the case with [Appellant]?

       2. Whether trial counsel was ineffective for failing to file any
       pretrial motions on [Appellant’s] behalf?

       3. Whether trial counsel was ineffective for failing to properly
       cross-examine the alleged victim?

       4. Whether trial counsel was ineffective for failing to object to
       the Commonwealth’s trial continuance when the alleged victim
       changed her story?

       5. Whether trial counsel            was   ineffective   for   abandoning
       [Appellant] after his trial?

       6. Whether sentencing counsel was ineffective for failing to
       mention mitigating factors during sentencing?

       7. Whether appellate counsel was ineffective for failing to file a
       post-sentencing brief?

       8. Whether appellate counsel was ineffective for failing to timely
       file [Appellant’s] Superior Court brief?

(Appellant’s Brief, at 4-5) (unnecessary capitalization omitted).1


____________________________________________


1
  While this Court understands the duty to be a zealous advocate, we note
that both the Federal and State Courts have longed stated that the raising of
a multiplicity of issues on appeal raises the presumption that none have
(Footnote Continued Next Page)


                                           -6-
J-S56042-15


      Here, Appellant claims he received ineffective assistance of counsel at

all stages of the proceedings below. (See id. at 9-25).          It is long settled

that “[o]ur standard of review from the grant or denial of post-conviction

relief 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. We

will not disturb findings that are supported by the record.” Commonwealth

v. Ousley, 21 A.3d 1238, 1242 (Pa. Super. 2011), appeal denied, 30 A.3d

487 (Pa. 2011) (citations omitted). “The court’s scope of review is limited to

the findings of the PCRA court and the evidence on the record of the PCRA

court’s hearing, viewed in the light most favorable to the prevailing party.”

Commonwealth v. Duffey, 889 A.2d 56, 61 (Pa. 2005) (citation omitted).

Further, to be eligible for relief pursuant to the PCRA, Appellant must

establish that his conviction or sentence resulted from one or more of the

enumerated errors or defects found in Section 9543(a)(2).                 See 42

Pa.C.S.A. § 9543(a)(2). He must also establish that the issues raised in the

PCRA petition have not been previously litigated or waived.               See 42

Pa.C.S.A. § 9543(a)(3).         An allegation of error “is waived if the petitioner

could have raised it but failed to do so before trial, at trial, during unitary

review, on appeal or in a prior state postconviction proceeding.”               42

Pa.C.S.A. § 9544(b).
                       _______________________
(Footnote Continued)

merit. See Commonwealth v. Small, 980 A.2d 549, 565 (Pa. 2009)
(citing United States v. Hart, 693 F.2d 286, 287 n.1 (3d Cir. 1982)).



                                            -7-
J-S56042-15


      Further, counsel is presumed effective, and an appellant bears the

burden to prove otherwise. See Commonwealth v. McDermitt, 66 A.3d

810, 813 (Pa. Super. 2013). The test for ineffective assistance of counsel is

the same under both the Federal and Pennsylvania Constitutions.             See

Strickland v. Washington, 466 U.S. 668, 687 (1984); Commonwealth v.

Jones, 815 A.2d 598, 611 (Pa. 2002). An appellant must demonstrate that:

(1) his underlying claim is of arguable merit; (2) the particular course of

conduct pursued by counsel did not have some reasonable basis designed to

effectuate his interests; and (3) but for counsel’s ineffectiveness, there is a

reasonable probability that the outcome of the proceedings would have been

different. See Commonwealth v. Pierce, 786 A.2d 203, 213 (Pa. 2001),

abrogated on other grounds by Commonwealth v. Grant, 813 A.2d 726

(Pa. 2002). “A failure to satisfy any prong of the test for ineffectiveness will

require rejection of the claim.” Jones, supra at 611 (citation omitted).

      In the first claim, Appellant argues that trial counsel was ineffective for

failing to discuss the case with him fully. (See Appellant’s Brief, at 9-12).

When questioned about this claim at the PCRA hearing, Appellant initially

appeared confused, complaining that appellate counsel failed to follow up

with him after the submission of his direct appeal. (See N.T. PCRA Hearing,

9/29/14, at 5). After being prompted by PCRA counsel, Appellant testified

that trial counsel had met with him prior to trial and explained things to him

but that he did not feel “it was enough time to prepare for it.” (Id. at 6).


                                      -8-
J-S56042-15


He elucidated further that he did not feel he had enough time to speak with

counsel.   (See id.).   However, on cross-examination, Appellant admitted

that trial counsel answered any questions he had during their meetings, met

with both Appellant and his family members after his release from prison,

and that he had been able to communicate with trial counsel through letters

during his period of incarceration. (See id. at 14-18).

      Appellant’s argument on this issue is undeveloped. After citing some

boilerplate on the general standards for ineffective assistance of counsel

claims, Appellant quotes the above-cited testimony and ends with two

conclusory paragraphs stating that he received ineffective assistance of trial

counsel because trial counsel did not properly communicate with him. (See

Appellant’s Brief, at 9-12). At no point does Appellant specify what further

communication was necessary, what trial counsel failed to explain to him, or

how trial counsel’s alleged failure to communicate with him prejudiced him.

Thus, Appellant has failed to set forth the ineffectiveness analysis required

by Strickland. See Strickland, supra at 687. Because Appellant has not

established any of the three prongs, we must deem counsel’s assistance

constitutionally effective.   See Commonwealth v. Rolan, 964 A.2d 398,

406 (Pa. Super. 2008) (holding that where appellant fails to address three

prongs of ineffectiveness test, he does not meet his burden of proving

ineffective assistance of counsel, and counsel is deemed constitutionally




                                     -9-
J-S56042-15


effective).    Thus, there is no basis to upset the PCRA court’s finding that

Appellant was not entitled to PCRA relief on this basis.2

       In the second claim, Appellant avers that trial counsel was ineffective

for failing to file any pretrial motions.          (See Appellant’s Brief, at 12-13).

Appellant’s argument suffers from the same fatal flaws as his first claim. At

the PCRA hearing, when asked what pretrial motions he believed trial

counsel should have filed, Appellant replied, “I honestly don’t know.” (N.T.

PCRA Hearing, 9/29/14, at 6).          In his brief, Appellant also fails to identify

any pretrial motions that trial counsel should have filed and fails to explain

how the failure to file pretrial motions prejudiced him. Claims of ineffective
____________________________________________


2
  Moreover, Appellant’s claim is without merit. The record reflects that the
PCRA court credited trial counsel’s testimony that he met with both
Appellant and his family on multiple occasions and spoke with Appellant’s
relatives on the telephone. (See PCRA Ct. Op., at 10). As the PCRA court
aptly stated:

       [Appellant] was unable to give any specifics as to what [t]rial
       [c]ounsel could have accomplished or how the outcome of his
       case would have been different had he and [t]rial [c]ounsel had
       more meetings and/or discussions about the case or if [t]rial
       [c]ounsel had more time to prepare for trial. He has failed to
       identify any issues or questions which were not addressed by
       [t]rial [c]ounsel. In fact, he testified that he felt that all of his
       questions had been answered satisfactorily after the meeting
       with [t]rial [c]ounsel and [Appellant’s] family members. Thus,
       [Appellant] has failed to point to any prejudice he suffered in
       this regard. . . .

(Id. at 11). Because Appellant failed to show that he suffered any prejudice
as a result of trial counsel’s alleged failure to communicate, the PCRA court
was correct to deny relief on this basis. See Jones, supra at 611; Pierce,
supra at 213.



                                          - 10 -
J-S56042-15


assistance of counsel based on mere speculation are not sufficient to

demonstrate the necessary degree of prejudice.       See Commonwealth v.

Pursell, 724 A.2d 293, 311 (Pa. 1999), cert. denied, 528 U.S. 975 (1999).

Further, because Appellant has not established any of the three prongs, we

must deem counsel’s assistance constitutionally effective.        See Rolan,

supra at 406. Thus, there is no basis to upset the PCRA court’s finding that

Appellant was not entitled to PCRA relief on this basis.

      In the third claim, Appellant argues trial counsel was ineffective for

failing to adequately cross-examine the victim.     (See Appellant’s Brief, at

13-15).   Specifically, Appellant faults counsel for not cross-examining the

victim on the inconsistencies in her various statements regarding the

incident. (See id.). We disagree.

      A criminal defendant has the constitutional right to confront witnesses

against him; this right includes the right of cross-examination.          See

Commonwealth v. Buksa, 655 A.2d 576, 579 (Pa. Super. 1995), appeal

denied, 664 A.2d 972 (Pa. 1995). Cross-examination can be used to test a

witness’ version of the events, to impeach her credibility, or to establish her

motive for testifying. See id. Lastly, it is well settled that the scope and

vigor of any particular cross-examination is a matter of trial strategy that is

left to the sound discretion of counsel.     See Commonwealth v. Molina,

516 A.2d 752, 757 (Pa. Super. 1986).

      Here, the record belies Appellant’s claim. As the PCRA court stated:


                                    - 11 -
J-S56042-15


             Trial [c]ounsel . . . brought out the fact that [the victim]
      and [Appellant] had previously lived together and that she had
      given him the code to get into her apartment. He also brought
      up [the victim’s] romantic relationship with another man at the
      time of the incident and her fear that her sexual encounter with
      [Appellant] would have a detrimental effect on that relationship.
      He raised [the victim’s] failure to report the incident to police or
      the Turkey Hill [c]lerk despite having the opportunity to do so.
      Trial [c]ounsel fully questioned [the victim] about her
      statements made on January 12, 2012, and several other
      inconsistent statements she had allegedly made to other
      individuals.

                                     *    *    *

            Clearly, the jury accepted [the victim’s] explanations and
      found her to be a credible witness. Trial [c]ounsel conducted a
      thorough and effective cross-examination of [the victim] and
      [the PCRA court] can see nothing further that he could have
      asked which could have aided [Appellant]. [The PCRA court]
      believe[s] [t]rial [c]ounsel raised every[thing] possible
      concerning [the victim’s] veracity and took every possible
      opportunity to raise a question as to [the victim’s] truthfulness
      in the minds of the jurors.

(PCRA Ct. Op., at 12-13).

      Our independent review of the record confirms the PCRA court’s

description of trial counsel’s cross-examination of the victim.      (See N.T.

Trial, 4/12/12, at 32-48).   The record supports the finding that the cross-

examination was consistent with a reasonable trial strategy and was

designed with Appellant’s best interest in mind. Counsel was not ineffective

for failing to cross-examine the victim properly. Thus, there is no basis to

upset the PCRA court’s finding that Appellant was not entitled to PCRA relief

on this basis.




                                     - 12 -
J-S56042-15


     In the fourth claim, Appellant argues that trial counsel was ineffective

for failing to object to the Commonwealth’s request for a continuance when

the victim recanted her prior statements. (See Appellant’s Brief, at 15-17).

We disagree.

     As discussed above, on January 12, 2012, the police brought the

victim to the trial court after she failed to respond to a subpoena. At an in-

camera hearing, she recanted her earlier statements to the police, stating

that she loved Appellant, did not wish to testify, and the incident in July

2011 was consensual.          (See N.T. Hearing, 1/12/12, at 3-5).       After her

statements, the parties agreed that her recantation might implicate Fifth

Amendment issues as she was essentially admitting to lying to the police

and filing a false report.      (See id. at 5-8).     At the PCRA hearing, trial

counsel testified that he would have liked to proceed that day but that the

trial court felt a continuance was necessary because of Fifth Amendment

concerns. (See N.T. PCRA Hearing, 9/29/14, at 24).

     Initially,   we   note    that   Appellant’s   argument   again   consists   of

boilerplate references to Strickland, with absolutely no attempt to explain

why an objection in this case would have been meritorious. (See Appellant’s

Brief, at 17). Here, the victim recanted her previous testimony; our review

of the record demonstrates that she had no understanding of the possible

consequences of her actions. (See N.T. Hearing, 1/12/12, at 3-8).




                                        - 13 -
J-S56042-15


      In Commonwealth v. Nelson, 574 A.2d 1107 (Pa. Super. 1990),

Nelson, while pleading guilty to murder and related charges, implicated

another individual, one Thomas Eaton, in the crime. See Nelson, supra at

1109. He subsequently recanted his accusations. See id. Despite this, the

Commonwealth subpoenaed him to testify at Eaton’s trial.          See id.    The

recantation and subsequent testimony resulted in Nelson being charged

with, and ultimately pleading guilty to, perjury and related offenses. See id.

This Court found Nelson’s testimony to be constitutionally infirm, specifically

noting that Nelson was not represented by counsel, not advised of his right

against self-incrimination, and did not understand the possible consequences

of his testimony. See id. at 1111-13.

      As Nelson suggests, once the victim recanted her testimony and

opened herself to possible criminal charges, the only means to protect her

constitutional rights was to do exactly what the trial court did, appoint

counsel and continue the matter.      An objection to the continuance would

have been pointless. We will not find counsel ineffective for failing to make

a non-meritorious objection. See Commonwealth v. Floyd, 484 A.2d 365,

368 (Pa. 1984). Thus, there is no basis to upset the PCRA court’s finding

that Appellant was not entitled to PCRA relief on this basis.

      In the fifth claim, Appellant argues that trial counsel was ineffective for

“abandoning” him after trial. (Appellant’s Brief, at 17). We disagree.




                                     - 14 -
J-S56042-15


       To the extent that it can be determined from the incoherent argument

on this matter, Appellant appears to be claiming that trial counsel was

ineffective for withdrawing following trial because this necessitated the

appointment of new counsel who was unfamiliar with the case, resulting in

Appellant receiving ineffective assistance of sentencing counsel. (See id.).

Again, we note that this claim is completely undeveloped. Appellant points

to nothing in the certified record or notes of testimony from the PCRA

hearing that would suggest that there was anything improper with respect to

trial counsel’s withdrawal. (See id.).3 Thus, he has not demonstrated that

the underlying claim has any arguable merit.       See Jones, supra at 611;

Pierce, supra at 213.          Therefore, there is no basis to upset the PCRA

court’s finding that Appellant was not entitled to PCRA relief on this basis.

       In the sixth claim, Appellant argues that sentencing counsel was

ineffective for failing to raise mitigating factors during sentencing.     (See

Appellant’s Brief, at 19-22). Again, aside from some boilerplate law and a

lengthy quotation from the PCRA hearing, Appellant’s argument on this issue

consists of a single, conclusory paragraph. (See id.).



____________________________________________


3
 The certified record does not contain an application to withdraw. As noted
above, the order permitting counsel to withdraw tersely stated that he “was
unable to perform his duty.” (Order of Court, 6/14/12, at 1). At the PCRA
hearing, Appellant did not question trial counsel about his withdrawal. (See
N.T. PCRA Hearing, 9/29/14, at 26-28).



                                          - 15 -
J-S56042-15


       Moreover, at the PCRA hearing, Appellant stated that he “was not all

right up in the head” and that he had “anger, depression[,]” used to take

medication, and had been in residential treatment.          (N.T. PCRA Hearing,

9/29/14, at 20-21). However, Appellant has failed to provide any medical

evidence that, at the time of the incident and/or at trial, he suffered from

any mental health issues, was taking medication, or was being treated for

mental health problems.4         At the PCRA hearing, trial counsel testified that

Appellant never behaved in a manner that demonstrated any mental health

problems and, while Appellant informed him of his juvenile mental health

problems, he did not state that he had any recent diagnosis or other current

issues. (See id. at 27-28). Sentencing counsel agreed that Appellant never

behaved in a manner that demonstrated any mental health problems and

never informed him of any mental health issues. (See id. at 32-33).

       We will not fault counsel for not bringing up mitigating circumstances

of which Appellant failed to inform him. Further, Appellant did not point to

any evidence to demonstrate that he had any current mental health issues

____________________________________________


4
   We note that the Sexual Offenders Assessment discussed the exact same
juvenile mental health history detailed by Appellant at the PCRA hearing.
(See Sexual Offenders Assessment, 6/06/12, at 3-4). While the PSI is not
contained within the certified record, the Sexual Offenders Assessment cites
it as the source for its information on Appellant’s juvenile history. (See id.
at 3). At sentencing, the trial court stated that it had reviewed both the PSI
and the Sexual Offenders Assessment. (See N.T. Sentencing, 10/24/12, at
21, 28). Thus, at the time of sentencing, the trial court had information
about Appellant’s prior mental health issues.



                                          - 16 -
J-S56042-15


that constituted a mitigating circumstance.       Also, as noted above, the

sentencing court had the benefit of a PSI, which discussed Appellant’s

juvenile mental health history.     We have stated, “Where the sentencing

court had the benefit of a presentence investigation report [PSI], we can

assume the sentencing court was aware of relevant information regarding

the defendant’s character and weighed those considerations along with

mitigating statutory factors.”   Commonwealth v. Moury, 992 A.2d 162,

171 (Pa. Super. 2010) (some internal quotation marks and citations

omitted). Lastly, Appellant has failed to demonstrate that he suffered any

prejudice because of sentencing counsel’s failure to highlight his mental

health issues, therefore his claim must fail.     See Jones, supra at 611;

Pierce, supra at 213.     Thus, there is no basis to upset the PCRA court’s

finding that Appellant was not entitled to PCRA relief on this basis.

      In the seventh claim, Appellant alleges that counsel was ineffective for

failing to file a post-sentence brief. (See Appellant’s Brief, at 22-24). This

claim is meritless.

      Initially, we note that all of the cases cited by Appellant in support of

this claim concern the ineffective assistance of counsel on direct appeal, not

the failure of counsel to file a brief in support of a post-sentence motion.

(See id. at 22-23). In fact, Appellant’s argument never discusses the failure

to file a brief in support of a post-sentence motion, containing solely a

conclusory discussion on ineffective assistance of appellate counsel.    (See


                                     - 17 -
J-S56042-15


id. at 22-24).   Moreover, Appellant utterly fails to explain how counsel’s

failure to file a brief prejudiced him. (See id.). Therefore, Appellant has not

demonstrated that he is entitled to relief.        See Rolan, supra at 406;

Pursell, supra at 311. Thus, there is no basis to upset the PCRA court’s

finding that Appellant was not entitled to PCRA relief on this basis.

      In the final claim, Appellant argues that he received ineffective

assistance of appellate counsel, because counsel filed a late brief on direct

appeal. (See Appellant’s Brief, at 24-25). We disagree.

      Appellant is correct that the appellate docket reflects that counsel did

file a late brief. (See Appeal Docket Sheet, 10/20/15, at 3). However, this

Court did not find waiver but rather decided Appellant’s appeal on the

merits.   (See Hollinger, supra *1-*7 (Pa. Super. filed June 6, 2014)).

Accordingly, Appellant has not shown that the filing of a late brief prejudiced

him and, therefore, his claim must fail. See Jones, supra at 611; Pierce,

supra at 213. Thus, there is no basis to upset the PCRA court’s finding that

Appellant was not entitled to PCRA relief on this basis.

      Accordingly, for the reasons discussed above we find that PCRA court’s

determination is supported by the evidence of record and is free of legal

error. See Ousley, supra at 1242.             Therefore, we affirm the denial of

Appellant’s PCRA petition.




                                     - 18 -
J-S56042-15


     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/17/2015




                          - 19 -
