J-S14030-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
       Appellee

                     v.

SHAWN CARMICHAEL,

       Appellant                                     No. 1254 MDA 2016


                 Appeal from the PCRA Order March 28, 2016
                In the Court of Common Pleas of York County
             Criminal Division at No(s): CP-67-CR-0005114-2012


BEFORE: GANTMAN, P.J., SHOGAN and STRASSBURGER,* JJ.

MEMORANDUM BY SHOGAN, J.:                      FILED SEPTEMBER 20, 2017

       Appellant, Shawn Carmichael, brings this pro se appeal from the order

denying his petition for relief filed pursuant to the Post Conviction Relief Act

(“PCRA”), 42 Pa.C.S. §§ 9541-9546.         This case returns to us after we

remanded for the PCRA court to fully comply with Pa.R.A.P. 1925(a) and

address the issues presented by Appellant in his Pa.R.A.P. 1925(b)

statement. The matter is now ripe for our disposition, and we affirm.

       We summarize the procedural history of this case as follows. After a

shooting incident involving Appellant’s fiancée, on August 6, 2012, the

Commonwealth filed a criminal information charging Appellant with criminal

attempt to commit first-degree murder, aggravated assault, person not to

possess a firearm, discharge of a firearm into an occupied structure,

*
    Retired Senior Judge assigned to the Superior Court.
J-S14030-17


recklessly endangering another person (“REAP”), and resisting arrest. 1 On

October 11, 2013, a jury found Appellant guilty of person not to possess a

firearm, aggravated assault, REAP, and resisting arrest. On November 18,

2013, the trial court sentenced Appellant to serve an aggregate term of

incarceration of ninety-three to 186 months.     Appellant filed timely post-

sentence motions, which the trial court denied following a hearing.

Appellant then filed a timely appeal, and this Court affirmed Appellant’s

judgment of sentence on November 5, 2014.              Commonwealth v.

Carmichael, 113 A.3d 340, 372 MDA 2014 (Pa. Super. filed November 5,

2014) (unpublished memorandum).        Appellant did not seek a petition for

allowance of appeal with the Pennsylvania Supreme Court.

       On December 18, 2014, Appellant filed, pro se, the instant PCRA

petition.   On September 28, 2015, the PCRA court appointed counsel to

represent Appellant and scheduled a hearing for December 2, 2015. Counsel

then filed a petition to withdraw and a no–merit letter pursuant to

Turner/Finley.2 On January 20, 2016, the trial court filed an order granting

counsel permission to withdraw based upon a finding of a breakdown in the

attorney-client relationship. The order of January 20, 2016, indicated that

the PCRA court found one issue of arguable merit and appointed new counsel

to represent Appellant at a PCRA hearing to be held on March 28, 2016.

1
    18 Pa.C.S. §§ 901, 2702, 6105, 2707.1, 2705, and 5104, respectively.

2
   Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth
v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).


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      In an order dated March 28, 2016, and filed on April 18, 2016, the

PCRA court found that Appellant’s remaining issue was without merit.3 This

timely pro se appeal followed.4 Both Appellant and the PCRA court have now

fully complied with Pa.R.A.P. 1925.5

      Appellant presents the following issues for our review:

      I. WHETHER THE PRESENT APPEAL SHOULD BE QUASHED
      BASED ON APPELLANT’S FAILURE TO FILE A NOTICE OF APPEAL
      FOLLOWING THE ENTRY OF THE PCRA COURT’S JANUARY 14,
      2016 ORDER DISMISSING SOME, BUT NOT ALL OF HIS CLAIMS
      FOR PCRA RELIEF?

3
   We note that PCRA counsel filed a motion to withdraw, relying upon
previous PCRA counsel’s no-merit letter, and the PCRA court granted
counsel’s request to withdraw.

4
    The record reflects Appellant’s compliance with the prisoner mailbox rule.
See Commonwealth v. Wilson, 911 A.2d 942, 944 (Pa. Super. 2006)
(recognizing that under the “prisoner mailbox rule,” a document is deemed
filed when placed in the hands of prison authorities for mailing).
Accordingly, Appellant’s appeal is timely.
5
   In a memorandum decision filed on May 11, 2017, we ultimately
remanded this matter to the PCRA court for the preparation of an additional
Pa.R.A.P. 1925(a) opinion because the PCRA court’s original Rule 1925(a)
opinion “addressed only the timeliness of the appeal and failed to address
the issues presented by Appellant in his Pa.R.A.P. 1925(b) statement.”
Commonwealth v. Carmichael, ___ A.3d ___, 1254 MDA 2016 (Pa.
Super. filed May 11, 2017) (unpublished memorandum at *10). Specifically,
we remanded this matter and directed the PCRA court to write an additional
Pa.R.A.P. 1925(a) opinion within thirty days of the filing of our
memorandum.

   On June 8, 2017, the PCRA court drafted a Rule 1925(a) opinion.
However, it failed to address all of the issues contained within Appellant’s
Pa.R.A.P. 1925(b) statement, as directed by this Court. Therefore, in an
order filed on June 26, 2017, we again remanded this matter to the PCRA
court for the completion of another Rule 1925(a) opinion to address the
remaining issues raised by Appellant. The PCRA court has since authored an
additional opinion as directed, and this case is now ripe for our disposition.


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      II. WHETHER THE PCRA COURT’S FINDING THAT THERE IS NO
      MERIT TO APPELLANT’S CLAIMS FOR PCRA RELIEF IS
      SUPPORTED BY THE RECORD?

Appellant’s Brief at 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.

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 grant great deference to the PCRA court’s findings that

are supported in the record and will not disturb them unless they have no

support in the certified record.   Commonwealth v. Rigg, 84 A.3d 1080,

1084 (Pa. Super. 2014).

      In his first issue, Appellant argues that his appeal should not be

quashed, as suggested by the PCRA court in its first Pa.R.A.P. 1925(a)

opinion.   Appellant’s Brief at 12-14.   Specifically, Appellant contends the

PCRA court’s allegation that his appeal is untimely, because Appellant failed

to appeal from the order of January 20, 2016, lacks merit. Id.

      We previously addressed this issue in detail in our memorandum filed

on May 11, 2017. Carmichael, 1254 MDA 2016 (unpublished memorandum

at *3-*9). In so doing, we agreed with Appellant that the instant appeal is



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properly before this Court. Accordingly, we need not revisit our disposition

of Appellant’s first issue.

      In his second issue, Appellant argues that the PCRA court erred in

dismissing his PCRA petition.      Appellant’s Brief at 14-20.     Specifically,

Appellant contends that the PCRA court erred in finding that four claims of

ineffective assistance of counsel lacked merit.

      Appellant’s claim challenges the effective assistance of trial and

appellate counsel.      Our Supreme Court has long stated that in order to

succeed on a claim of ineffective assistance of counsel, an appellant must

demonstrate (1) that the underlying claim is of arguable merit; (2) that

counsel’s performance lacked a reasonable basis; and (3) that the

ineffectiveness of counsel caused the appellant prejudice. Commonwealth

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

      We have explained that trial counsel cannot be deemed ineffective for

failing to pursue a meritless claim.      Commonwealth v. Loner, 836 A.2d

125, 132 (Pa. Super. 2003) (en banc). Moreover, with regard to the second

prong, we have reiterated that trial counsel’s approach must be “so

unreasonable     that    no   competent    lawyer   would   have   chosen   it.”

Commonwealth v. Ervin, 766 A.2d 859, 862-863 (Pa. Super. 2000)

(quoting Commonwealth v. Miller, 431 A.2d 233 (Pa. 1981)).

      Our Supreme Court has discussed “reasonableness” as follows:

            Our inquiry ceases and counsel’s assistance is deemed
      constitutionally effective once we are able to conclude that the


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      particular course chosen by counsel had some reasonable basis
      designed to effectuate his client’s interests. The test is not
      whether other alternatives were more reasonable, employing a
      hindsight evaluation of the record.        Although weigh the
      alternatives we must, the balance tips in favor of a finding of
      effective assistance as soon as it is determined that trial
      counsel’s decision had any reasonable basis.

Commonwealth v. Pierce, 527 A.2d 973, 975 (Pa. 1987) (quoting

Commonwealth ex rel. Washington v. Maroney, 235 A.2d 349 (Pa.

1967)) (emphasis in original).

      In addition, we are mindful that prejudice requires proof that there is a

reasonable probability that, but for counsel’s error, the outcome of the

proceeding would have been different. Pierce, 786 A.2d at 213. “A failure

to satisfy any prong of the ineffectiveness test requires rejection of the claim

of ineffectiveness.”    Commonwealth v. Daniels, 963 A.2d 409, 419 (Pa.

2009) (citing Commonwealth v. Sneed, 899 A.2d 1067 (Pa. 2006)). Thus,

when it is clear that a petitioner has failed to meet the prejudice prong of an

ineffective-assistance-of-counsel claim, the claim may be disposed of on that

basis alone, without a determination of whether the first two prongs have

been met.     Commonwealth v. Baker, 880 A.2d 654, 656 (Pa. Super.

2005).

      It is presumed that the petitioner’s counsel was effective, unless the

petitioner proves otherwise. Commonwealth v. Williams, 732 A.2d 1167,

1177 (Pa. 1999).       Moreover, we are bound by the PCRA court’s credibility

determinations    where     there   is   support   for   them   in   the   record.



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Commonwealth v. Battle, 883 A.2d 641, 648 (Pa. Super. 2005) (citing

Commonwealth v. Abu-Jamal, 720 A.2d 79 (Pa. 1998)).

      Appellant’s first claim of ineffective assistance is that his trial counsel

improperly failed to “move for severance of the charge of Prohibited

Possession of a Firearm from the other charges for which [Appellant] was on

trial, and actually stipulated that [Appellant] was, in fact, an individual who

was legally prohibited from possessing a firearm.” Appellant’s Brief at 16-

17. As Appellant aptly observes, where a defendant has been charged with

a Section 6105 offense, as well as with other charges that do not require

evidence of a prior conviction, this Court has held that the trial court abused

its discretion by denying the defendant’s motion to sever the Section 6105

charge.   Commonwealth v. Jones, 858 A.2d 1198, 1208 (Pa. Super.

2004); Commonwealth v. Galassi, 442 A.2d 328 (Pa. Super. 1982);

Commonwealth        v.   Neely,    444   A.2d    1199    (Pa.   Super.   1982);

Commonwealth v. Carroll, 418 A.2d 702 (Pa. Super. 1980). The rationale

underlying the above cited decisions is that introduction of evidence of a

predicate offense prejudices the defendant on remaining charges where

evidence of the predicate offense is not relevant to the remaining charges.

      The PCRA court addressed Appellant’s claim of ineffective assistance of

counsel for failing to seek severance of Appellant’s charge of prohibited

possession of a firearm as follows:

             First, [Appellant] has failed to show that but for counsel’s
      failure to move for severance there is a reasonable probability


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     that the outcome of the proceedings would have been different.
     Pennsylvania Rules of Criminal Procedure permits a [c]ourt to
     “order separate trials of offenses . . . if it appears that any party
     may be prejudiced by offenses or defendants being tried
     together.”   Pa.R.Crim.P. Rule 583.           Here, [Appellant] was
     acquitted of two [of] the most serious charges, Attempted
     Homicide and a higher graded Aggravated Assault and thus it
     does not appear that [Appellant] was unduly prejudiced by trial
     counsel not moving to sever the charge.

           Additionally, this [c]ourt finds that trial counsel was not
     ineffective for stipulating to the fact that [Appellant] is a person
     not to possess a firearm. Trial counsel’s decision to stipulate to
     that fact that [Appellant] is a person not to possess a firearm is
     considered trial strategy. When evaluating a particular aspect of
     counsel’s trial strategy, this [c]ourt must look to see if counsel
     had a reasonable basis for his act or omission. “If a reasonable
     basis exists for the particular course chosen by counsel, the
     inquiry [into effectiveness] ends and counsel’s performance is
     deemed constitutionally effective.” Commonwealth v. Abdul-
     Salaam, 808 A.2d 558, 561 (Pa. 2001), reconsideration denied,
     2002. In examining “reasonable basis,” “the PCRA court ‘does
     not question whether there were other more logical courses of
     action which counsel could have pursued; rather, [the court]
     must examine whether counsel’s decisions had any reasonable
     basis.’” Commonwealth v. Bardo, 105 A.3d 678, 684 (Pa. 2014)
     (quoting Commonwealth v. Roney, 79 A.3d 595, 604 (Pa.
     2013)).

           Here, by stipulating to such a fact, trial counsel effectively
     prevented the Commonwealth from revealing [Appellant’s] prior
     record, which includes numerous felonies, to the jury. Thus, this
     [c]ourt finds trial counsel’s decision was a rational trial strategy
     and counsel had a reasonable basis for stipulating to the fact
     that [Appellant] was a person not to possess a firearm. As such,
     this [c]ourt deems trial counsel’s performance to be
     constitutionally effective and finds [Appellant’s] claim lacks
     merit.

PCRA Court Opinion, 6/8/17, at 8-9.

     The PCRA court determined that Appellant failed to establish two

prongs of the ineffectiveness test.   Specifically, the PCRA court concluded


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trial counsel made a strategic decision to stipulate that Appellant was not to

possess a firearm and Appellant did not suffer prejudice because the jury

rendered verdicts of not guilty with respect to several charged crimes. The

PCRA court’s analysis is supported by the record and the law, and we agree

with its determination that Appellant failed to meet his burden to prove that

trial counsel was ineffective.    Accordingly, Appellant’s first allegation of

ineffective assistance fails.

      In his second challenge to trial counsel’s effective assistance, Appellant

argues that counsel improperly failed to investigate and present evidence

regarding Appellant’s diagnosis of Type II Diabetes. Appellant’s Brief at 17-

18. Appellant contends that his illness could have provided an explanation

for his memory loss and erratic behavior during the incident and served as a

valid defense.

      Counsel has “a general duty to undertake reasonable investigations”

and make “reasonable decisions that render particular investigations

unnecessary.” Commonwealth v. Johnson, 966 A.2d 523, 535 (Pa. 2009)

(citations omitted). “[W]e only inquire whether counsel had any reasonable

basis for his actions, not if counsel pursued the best available option.”

Commonwealth v. Philistin, 53 A.3d 1, 9-10 (Pa. 2012) (citations and

internal quotation marks omitted).

      The PCRA court reviewed this claim of ineffective assistance as follows:

             Here, [Appellant] argues that trial counsel was ineffective
      for failing to present evidence of [Appellant’s] Type II Diabetes


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      in order to explain [Appellant’s] stated memory loss and erratic
      behavior. As previously stated, in order to demonstrate that
      trial counsel was ineffective for failing to investigate and present
      evidence of [Appellant’s] Diabetes diagnosis, [Appellant] must
      show that his underlying claim has merit, no reasonable basis
      existed for trial counsel’s conduct, and there exists a reasonable
      probability that, but for trial counsel’s act or omission, the
      outcome of the proceeding would have been different. Pierce, at
      213. For the following reasons, this [c]ourt finds [Appellant] has
      failed to meet his burden.

            This [c]ourt finds that a reasonable basis existed for trial
      counsel not to investigate or present such evidence to the jury.
      During the trial, [Appellant] testified that he had “never seen
      [the gun used in the shooting] a day in [his] life,” and he “did
      not possess that weapon.” (N.T. Trial, November 7-11, 2013, at
      446). [Appellant] denied being the shooter and testified that he
      was the one who was the target of the shots. (Id. at 448).
      Thus, if trial counsel had presented evidence of [Appellant’s]
      Type II Diabetes as an explanation for [Appellant’s] erratic
      behavior and alleged memory loss, it would have contradicted
      [Appellant’s] direct testimony that he was not involved in the
      shooting. Thus, a reasonable basis existed for trial counsel not
      to present evidence of [Appellant’s] diagnosis as a defense to
      the crime.

PCRA Court Opinion, 6/8/17, at 10-11.

      We discern no error in the PCRA court’s determination that trial

counsel’s failing to pursue evidence regarding Appellant’s diagnosis of Type

II Diabetes and its ramifications upon Appellant’s mental state amounted to

ineffective assistance. In light of the defense Appellant presented at trial,

this constituted a reasonable trial strategy.     Therefore, Appellant’s claim

lacks merit.

      Appellant’s third allegation of ineffective assistance of trial counsel

pertains to counsel’s handling of voir dire.         Appellant’s Brief at 18.



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Specifically, Appellant claims that trial counsel was ineffective for failing to

take curative measures after a potential juror stated, in the presence of the

entire jury pool, that a criminal defendant must have something to hide in

the event the defendant does not take the witness stand and testify.          Id.

Appellant alleges that due to this statement from the potential juror, he was

compelled to testify. Id.

      We are mindful that “[t]he mere fact that jurors may show some

indicia of pretrial prejudice is not enough to require that they be stricken

from the jury[;]” the law requires that jurors, after admitting a bias, “be

able to put aside their prejudices and determine guilt or innocence on the

facts presented.”     Commonwealth v. Blasioli, 685 A.2d 151, 159 (Pa.

Super. 1996). In addition, it is well settled that “the law presumes that the

jury will follow the instructions of the [trial] court.” Philistin, 53 A.3d at 18.

      The PCRA court addressed this claim of ineffective assistance of

counsel as follows:

             This [c]ourt finds [Appellant’s] claim is wholly without
      merit.    Here, [Appellant] claims counsel was ineffective for
      failing to take corrective action when juror #488 stated, during
      voir dire, that in his view, if a criminal defendant does not take
      the stand and testify in his own defense, he must have
      something to hide. However, trial counsel requested juror #488
      to be struck for cause, and, juror #488 ultimately did not sit on
      the trial panel. Additionally, Attorney Blake questioned the other
      jury pool members’ ability and willingness to respect
      [Appellant’s] right to remain silent, and no other juror expressed
      similar feelings.       Additionally, the [c]ourt's preliminary
      instruction to the jury instructed the jury regarding the
      Commonwealth’s burden of proof and the fact that [Appellant]
      had no burden to prove his innocence.


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             This [c]ourt does not find the mere expression of a
      prospective juror’s personal opinion concerning [Appellant’s]
      failure to testify so prejudicial as to require a new pool of jurors.
      Thus, counsel’s failure to request a new pool does not render
      him ineffective so as to afford [Appellant] relief. Our Superior
      Court has held, “The purpose of voir dire is to draw out any bias
      or prejudice and thereby facilitate the removal of jurors with
      predisposed opinions.” Commonwealth v. Croll, 480 A.2d 266,
      273 (Pa. Super. 1984).             Juror #488’s statement about
      [Appellant’s] right to remain silent, [was] nothing more than his
      personal opinion, and aside from asking the entire pool if anyone
      else felt similar, did not require an extreme remedy such as
      striking the entire venire.

            Additionally, [Appellant’s] decision to take the stand in his
      own defense was his own. [Appellant] does not assert that he
      was coerced into doing so. Therefore, because this [c]ourt
      concludes that juror #488’s statements did not warrant the
      dismissal of the entire pool, and Attorney Blake’s follow up
      question to the entire panel was appropriately curative[,] we
      deem trial counsel’s performance to be constitutionally effective
      and find [Appellant’s] claim lacks merit.

PCRA Court Opinion, 7/25/17, at 8-10.

      Again, we discern no error in the PCRA court’s conclusion that this

claim lacks merit. Trial counsel’s conduct in requesting that juror #488 be

stricken for cause and questioning the remaining jurors about their ability to

respect a defendant’s right to remain silent constituted a reasonable trial

strategy.   Furthermore, in light of the trial court’s instructions to the jury

regarding the appropriate burdens of proof, we conclude the PCRA court’s

decision to reject this ineffectiveness claim is correct.     Appellant cannot

demonstrate any resulting prejudice from trial counsel’s decision.       Hence,

Appellant’s claim fails.




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      Appellant’s final claim of ineffective assistance pertains to direct appeal

counsel’s failure to properly brief issues. Appellant’s Brief at 19. Appellant

contends that his claims challenging the sufficiency and weight of the

evidence were deemed waived by this Court due to appellate counsel’s

failure to present the issues in the argument portion of his appellate brief

presented on direct appeal. Id.

      We observe that claims of ineffective assistance of counsel are not

self-proving. Commonwealth v. Wharton, 811 A.2d 978, 986 (Pa. 2002).

“[A] post-conviction petitioner must, at a minimum, present argumentation

relative to each layer of ineffective assistance, on all three prongs of the

ineffectiveness standard….”     Commonwealth v. D’Amato, 856 A.2d 806,

812   (Pa.   2004).     “[A]n   underdeveloped    argument,     which   fails   to

meaningfully discuss and apply the standard governing the review of

ineffectiveness claims, simply does not satisfy Appellant’s burden of

establishing that he is entitled to relief.” Commonwealth v. Bracey, 795

A.2d 935, 940 n.4 (Pa. 2001). In addition, we note that where an appellant

is not entitled to relief with regard to the underlying claim upon which his

ineffectiveness claim is premised, he is not entitled to relief with regard to

his ineffectiveness claim. Commonwealth v. Ousley, 21 A.3d 1238, 1246

(Pa. Super. 2011).

      The PCRA court addressed this claim of ineffective assistance in the

context of failing to present the issues of sufficiency and weight of the



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evidence to the trial court in a post-sentence motion, and concluded that the

claims lacked merit, as follows:

            Here, [Appellant] argues that appellate counsel, who was
      also trial counsel, was ineffective for failing to file a post-
      sentence motion asserting the verdict in his trial was against the
      weight and sufficiency of evidence to sustain his convictions.
      However, [Appellant’s] claim fails for many reasons.

             In his PCRA petition, [Appellant], other than simply
      asserting he should be afforded relief because Attorney Blake did
      not address the challenges listed supra in his post-sentence
      motion, failed to address the merits of his claims. As previously
      stated, in order to demonstrate that trial counsel was ineffective,
      particularly for failing to address an asserted challenge to the
      sufficiency and weight of the evidence in his appeal thus waiving
      the issues for review, [Appellant] must show that (1) his
      underlying claim has merit; (2) no reasonable basis existed for
      trial counsel’s conduct; and, (3) there exists a reasonable
      probability that, but for trial counsel’s act or omission, the
      outcome of the proceeding would have been different. Pierce, at
      213. This [c]ourt finds [Appellant] has failed to meet his burden
      and his claim is denied for failure to discuss, let alone
      substantiate, the elements listed supra.

             Further, this [c]ourt finds that even if [Appellant] had
      addressed the elements listed supra, [Appellant] did not suffer
      prejudice as a result of Attorney Blake not addressing a
      sufficiency and weight of the evidence claim in his post-sentence
      motion, thus effectively waiving the issues for appeal, because
      the verdict in [Appellant’s] case was not against the weight and
      sufficiency of the evidence.

            The appellate courts have made clear that “a new trial
      should be awarded when the jury’s verdict is so contrary to the
      evidence as to shock one’s sense of justice and the award of a
      new trial in imperative so that right may be given another
      opportunity to prevail.” Commonwealth v. Brown, 648 A.2d
      1177, 1189 (Pa. 1994), quoting Thompson v. City of
      Philadelphia, 493 A.2d 669, 672 (Pa. 1985). Upon review of the
      entire record, this [c]ourt’s sense of justice was not shocked by
      the verdict.



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            Further, “[a] claim challenging the sufficiency of the
      evidence is a question of law. Evidence will be deemed sufficient
      to support the verdict when it establishes each material element
      of the crime charged and the commission thereof by the
      accused, beyond a reasonable doubt.”           Commonwealth v.
      Widmer, 744 A.2d 745, 751-[7]52 (Pa. 2000) (internal citations,
      footnotes, and quotation marks omitted). Again, based on this
      [c]ourt’s review of the record, we find that the Commonwealth
      presented evidence to overwhelmingly establish each element of
      each convicted offense. Thus, this [c]ourt asserts that had
      Attorney Blake filed a post-sentence motion raising a claim that
      the verdict was against the sufficiency of the evidence, the claim
      would have failed.

PCRA Court Opinion, 7/25/17, at 10-12.

      Instantly, Appellant’s argument in this regard amounts to mere

allegations of appellate counsel’s ineffective assistance and lacks any

discussion of the prejudice prong of the Pierce test.           As we previously

stated, claims of ineffective assistance of counsel are not self-proving.

Wharton, 811 A.2d at 986. A PCRA petitioner must present argumentation

relative to all three prongs of the ineffectiveness standard. D’Amato, 856

A.2d at 812. Moreover, Appellant has failed to establish that he would be

entitled to relief on the underlying claims upon which this issue of

ineffectiveness is premised.       Ousley, 21 A.3d at 1246.            Indeed, as

expressed by the above cited language of the PCRA court, the claims

challenging   the   sufficiency   and   weight   of   the   evidence   lack   merit.

Accordingly, Appellant’s undeveloped claim of direct appeal counsel’s

ineffective assistance fails.

      Order affirmed.



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 9/20/2017




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