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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                  IN THE SUPERIOR COURT OF
                                                    PENNSYLVANIA


                     v.

ANTHONY J. LEE

                          Appellant                No. 881 EDA 2016


                  Appeal from the PCRA Order March 7, 2016
                In the Court of Common Pleas of Lehigh County
              Criminal Division at No(s): CP-39-CR-0001936-2011


BEFORE: BOWES, J., OTT, J., AND FORD ELLIOTT, P.J.E.

MEMORANDUM BY BOWES, J.:                             FILED MAY 23, 2017

     Anthony J. Lee appeals, pro se, from the March 7, 2016 order denying

his PCRA petition without a hearing. We affirm.

     The facts underlying Appellant’s conviction are as follows.        On

February 22, 2011, Appellant entered a Subway restaurant in Allentown,

Lehigh County.     Two employees were working that evening.       Appellant

grabbed one of the employees, placed a gun against her head, threatened

both women, and demanded money.         The employees complied.   Appellant

led the two women to the back of the restaurant where he secured their

ankles with zip ties before leaving with the money and other items taken

from the store.      An off-duty detective observed Appellant exiting the

restaurant.    A pursuit ensued, and Appellant evaded apprehension for a
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short period after abandoning his car.               The police recovered items stolen

from the store in the deserted vehicle. Appellant’s latent fingerprints were

also found within.

       Subsequently, Appellant was charged with robbery, two counts of false

imprisonment, and firearms not to be carried without a license.                        He was

convicted of all charges following a jury trial, and the court imposed a

sentence      of    nineteen-and-one-half       to    thirty-nine    years     incarceration.

Appellant filed a direct appeal with this Court challenging the court’s failure

to suppress certain in-court and out-of-court identifications, the legality of

his sentence, and the discretionary aspects of his sentence. On December

17, 2013, we vacated Appellant’s sentence insofar as the trial court

improperly imposed conditions upon his parole, but affirmed his judgment of

sentence in all other respects.           Commonwealth v. Lee, 93 A.3d 511

(Pa.Super. 2013) (unpublished memorandum). The Supreme Court denied

Appellant’s        petition   for   allowance    of     appeal      on   May     15,    2014.

Commonwealth v. Lee, 625 Pa. 658 (Pa. 2014).

       Appellant filed a timely pro se PCRA petition on August 13, 2015. The

trial court appointed counsel, and counsel subsequently filed a motion to

withdraw as counsel and accompanying Turner/Finley1 letter on October

____________________________________________


1
  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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26, 2015.      On November 24, 2015, after a hearing on the motion to

withdraw, the trial court granted PCRA counsel’s motion.2       Thereafter, on

January 26, 2016, the PCRA court filed a Rule 907 notice of intent to

dismiss. Appellant did not contest the court’s Rule 907 notice. Instead, on

March 4, 2016, Appellant filed a pro se notice of appeal to this court. On

March 7, 2016, the PCRA court filed an order denying Appellant’s PCRA

petition.3   Appellant complied with the court’s order to file a Rule 1925(b)

concise statement of errors complained of on appeal, and the court authored

its Rule 1925(a) opinion. This matter is now ready for our review.

       Appellant raises one issue for our consideration:

       A. As nothing existed in the record to either confirm nor
          contradict Appellant’s claim of ineffective assistance of
          counsel in the context of counsel’s failure to disclose an
          additional plea made by the Commonwealth, the trial court
          erred in dismissing Appellant’s PCRA petition without a
          hearing; denying Appellant the opportunity to examine
          defense counsel under oath and establish a record in regards
          to this claim.
____________________________________________


2
 The notes of testimony for the November 24, 2015 hearing regarding PCRA
counsel’s motion to withdraw were not transcribed.
3
    Pursuant to Pa.R.A.P. § 905(5), “A notice of appeal filed after the
announcement of a determination but before entry of an appealable order
shall be treated as filed after such entry an on the day thereof.” See also
Commonwealth v. Swartzfager, 59 A.3d 616, 618 n.3 (Pa.Super. 2012)
(stating “Although initially premature when filed, we need not quash
[appellant’s] appeal.”). Although Appellant’s notice of appeal was filed
before the PCRA court entered its final order, we treat it as if it were timely
filed on March 7, 2016, when the court docketed the order denying the PCRA
petition.



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Appellant’s brief at 4.

      When reviewing a court’s denial of a PCRA petition, we consider the

record “in the light most favorable to the prevailing party at the PCRA level.”

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

Our review is limited to the evidence of record and the factual findings of the

PCRA court.     Id.   This Court will afford “great deference to the factual

findings of the PCRA court and will not disturb those finding unless they have

no support in the record.” Id. Thus, when a PCRA court’s ruling is free of

legal error and is supported by the evidence, we will not disturb its decision.”

Id.

      Appellant’s PCRA petition alleges that trial counsel rendered ineffective

assistance of counsel by failing to apprise him of a global plea offer prior to

his trial. In analyzing a claim of ineffective assistance of counsel, “we begin

with the presumption counsel is effective.”     Commonwealth v. Cousar,

154 A.3d 287, 296 (Pa. 2017) (citation omitted).       In order to succeed on

such a claim, an appellant must establish, by a preponderance of the

evidence:

      (1) the underlying claim has arguable merit; (2) no reasonable
      basis existed for counsel’s actions of failure to act; and (3)
      appellant suffered prejudice as a result of counsel’s error, with
      prejudice measured by whether there is a reasonable probability
      that the result of the proceeding would have been different.




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Id. at 296-297. Finally, we are “not required to analyze the elements of an

ineffectiveness claim in any particular order of priority; if a claim fails under

any necessary element . . . the court may proceed to that element first.”

Id. at 297 (citation omitted).

      Appellant’s claimed error on appeal assails the PCRA court’s denial of

his PCRA petition without a hearing.     We note that the decision to deny a

PCRA petition is discretionary, and the PCRA court may do so where it is

satisfied that “there are no genuine issues concerning any material fact, the

defendant is not entitled to post-conviction collateral relief, and no legitimate

purpose would be served by further proceedings.”         Id. (citation omitted).

Moreover, “[t]o obtain a reversal of a PCRA court’s decision to dismiss a

petition without a hearing, an appellant must show that he raised a genuine

issue of fact which, if resolved in his favor, would have entitled him to relief,

or that the court otherwise abused its discretion in denying a hearing.” Id.

(citation omitted).

      Additionally, we observe, “hearings are not discovery expeditions, but

are conducted when necessary to offer the petitioner an opportunity to prove

his explicit assertion of ineffectiveness raising a colorable claim about which

there remains an issue of material fact.” Id. at 299 (citation omitted). A

petitioner cannot rely on mere conclusory allegations, but must make some

showing as to how counsel would response to the allegations in order to be

entitled to relief.   Id.; Pa.R.Crim.P. 902(A)(12)(b) (PCRA petition must

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contain facts supporting grounds for relief; if facts do not appear in record,

petitioner must identify “affidavits, documents, and other evidence showing

such facts.”).

      Appellant contends that the court erred in refusing to grant him a

hearing on his ineffectiveness-of-counsel claim because there is “nothing in

the record to either confirm nor [sic] contradict” his allegation that trial

counsel did not communicate to him a final plea offer which was supposedly

made prior to trial. Appellant’s brief at 10. He avers trial counsel did not

apprise him of this last-minute offer until after trial.         Appellant also

challenges the findings contained in PRCA counsel’s Turner/Finley letter,

including his conclusion that Appellant’s claim was meritless. He reiterates

that there is nothing of record to support this conclusion. Hence, Appellant

maintains that, since it is not possible to determine from the record whether

his claim is frivolous and without support, he is entitled to a remand for an

evidentiary hearing. We disagree.

      Instantly, Appellant filed a PCRA petition alleging that trial court failed

to communicate a plea offer to him. He claimed that “there is a very strong

likelihood that [he] would have taken the plea offer rather than proceeding

to trial in this matter.”   Id.   In addition to conceding that there was no

support in the record for this allegation, Appellant’s initial pro se PCRA

petition did not identify “affidavits, documents, or other evidence” tending to

support his claim as required by Pa.R.Crim.P. 902(A)(12)(b).            Indeed,

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Appellant did not explain to the court the contents of the supposed plea

offer. Upon being appointed to Appellant’s case, PCRA counsel undertook an

investigation, on Appellant’s behalf, to determine whether support could be

garnered for his claim.

      In his no-merit letter, PCRA counsel described, in detail, the extent of

his investigation into Appellant’s contention as follows.        PCRA counsel

contacted trial counsel and reviewed Appellant’s case file, including

numerous     correspondences     between     Appellant    and    trial   counsel.

Turner/Finley No Merit Letter, 10/26/15, at unnumbered 3-4. This review

revealed that Appellant requested that trial counsel seek a plea deal, that

the Commonwealth proposed multiple plea offers, and that Appellant

rejected all of those offers. Id. Moreover, PCRA counsel indicated that trial

counsel did not recollect communicating with Appellant after his trial

regarding a last-minute plea offer made just before trial, and that his file did

not reflect that such a conversation had occurred. Id. at 4. Hence, PCRA

counsel determined that Appellant could not proffer evidence establishing

trial counsel’s ineffectiveness, and indicated his intent to withdraw.

      On November 24, 2015, the PCRA court held a hearing on PCRA

counsel’s motion to withdraw. The PCRA court recounted its findings in its

Rule 1925(a) opinion, observing:

      [Appellant] alleges he found out about this offer from [trial
      counsel] after he was sentenced, but does not indicate what this
      offer was. [Trial counsel] advised [PCRA counsel] that she did

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        not recall any such conversation nor did she make any file notes
        regarding such a conversation. Considering the many offers
        [trial counsel] relayed to [Appellant] prior to trial – which [he]
        ultimately rejected – this court finds it incredible that [Appellant]
        had any conversation with [trial counsel] regarding a plea offer
        after sentencing. [PCRA counsel] fully investigated this claim,
        and found there was no merit.

PCRA Court Opinion, 5/23/16, at 2-3 (emphasis in original). The PCRA court

concluded that Appellant’s issue lacked arguable merit, and therefore, he

was not entitled to a hearing on his petition. In so finding, the PCRA court

credited and adopted the results of PCRA counsel’s evidentiary investigation,

and found Appellant’s bald allegations to the contrary to be incredible.

        Upon review of the certified record, we find the PCRA court did not

abuse its discretion in denying Appellant’s PCRA petition without a hearing.

As noted above, hearings are not an opportunity for discovery. Rather, in

order to overcome trial counsel’s presumption of effectiveness, Appellant

was required, pursuant to Pa.R.Crim.P. 902, to offer some evidence in

support of the averments contained within his petition.           The PCRA court

found    a   hearing   was    unnecessary     since   Appellant   relied   upon   an

unsupported assertion of ineffectiveness belied by trial counsel’s file, and

they did not support a colorable claim about which there remains an issue of

material fact.     Cousar, supra.         PCRA counsel undertook a thorough

investigation on Appellant’s behalf to determine whether such evidence

existed, and concluded that it did not.          The PCRA court credited PCRA

counsel’s findings, and Appellant offered no evidence to refute that

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determination.    Therefore, Appellant did not present a claim of arguable

merit. Since Appellant has failed to plead facts sufficient to establish that he

is entitled to an evidentiary hearing, this claim fails.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/23/2017




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