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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

PEDRO SILVA

                            Appellant                 No. 2649 EDA 2014


                Appeal from the PCRA Order September 2, 2014
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0006668-2007


BEFORE: SHOGAN, J., MUNDY, J., and FITZGERALD, J.*

MEMORANDUM BY MUNDY, J.:                         FILED NOVEMBER 20, 2015

        Appellant, Pedro Silva, appeals from the September 2, 2014 order

dismissing his first petition for relief filed pursuant to the Post Conviction

Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546.         After careful review, we

affirm.

        The PCRA court outlined the relevant procedural history of this case as

follows.

                    On November 2, 2007, [Appellant] was
              convicted after a jury trial of possession with intent
              to distribute a controlled substance (PWID) and
              unauthorized use of a motor vehicle.1 On December
              11, 2007, the [trial court] sentenced [Appellant] to a
              term of incarceration of two to five years with a
____________________________________________


*
    Former Justice specially assigned to the Superior Court.
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           consecutive term of probation of five years for PWID.
           No further penalty was imposed on the remaining
           charge.

                                    …

                 Post-sentence motions were denied, and
           [Appellant] filed a timely notice of appeal.    The
           Superior Court affirmed the judgment of sentence in
           a memorandum decision on March 4, 2009.
           [Commonwealth v. Silva, 927 A.2d 562 (Pa.
           Super. 2009) (unpublished memorandum), appeal
           denied, 982 A.2d 1228 (Pa. 2008)]. [Appellant] filed
           a timely petition for allowance of appeal with the
           Supreme Court of Pennsylvania.       Allocatur was
           denied on October 27, 2009 …. On July 1, 2010,
           [Appellant] filed a pro se PCRA petition. Counsel
           was appointed on July 20, 2012, and filed an
           amended petition on January 27, 2014.           The
           Commonwealth filed [its] motion to dismiss on April
           24, 2014.

                  … [Appellant] was given notice on July 11,
           2014, of [the PCRA] court’s intention to dismiss the
           petition pursuant to P[ennsylvania] R[ule of]
           Crim[inal] P[rocedure] 907.


           1
             35 P.S. § 780-113(a)(30) and 18 Pa.C.S.A. § 3928,
           respectively.

PCRA Court Opinion, 10/24/14, at 1-2. On August 29, 2014, the PCRA court

convened for a PCRA hearing. Counsel for the Commonwealth indicated that

PCRA counsel was aware Rule 907 notice had been sent, but that PCRA

counsel had been unable to locate Appellant.         N.T., 8/29/14, at 3.

Accordingly, the PCRA court noted that “[t]he defendant is unlocatable by

defense counsel and his last address is not good. PCRA dismissed.” Id. at

4.   On September 2, 2014, the PCRA court entered an order denying

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Appellant’s PCRA petition. On September 18, 2014, Appellant filed a timely

notice of appeal.1

       On appeal, Appellant raises the following issues for our consideration.

              [I.] Whether the [PCRA court] was in error in
              denying [] Appellant’s PCRA petition without an
              evidentiary hearing on the issues raised in the
              amended PCRA petition regarding trial counsel’s
              ineffectiveness[?]

              [II.] Whether the [PCRA court] was in error in not
              granting relief on the PCRA petition alleging counsel
              was ineffective[?]

Appellant’s Brief at 8

       When reviewing PCRA matters, we are mindful of the following

principles.

              We consider the record in the light most favorable to
              the prevailing party at the PCRA level. This review is
              limited to the evidence of record and the factual
              findings of the PCRA court.         We afford great
              deference to the factual findings of the PCRA court
              and will not disturb those findings unless they have
              no support in the record. Accordingly, as long as a
              PCRA court’s ruling is free of legal error and is
              supported by record evidence, we will not disturb its
              ruling. Nonetheless, where the issue pertains to a
              question of law, our standard of review is de novo
              and our scope of review is plenary.



____________________________________________


1
  The PCRA court did not order Appellant to file a concise statement of
matters complained of on appeal pursuant to Pennsylvania Rule of Appellate
Procedure 1925(b), but the PCRA court filed a Rule 1925(a) opinion on
October 24, 2014.



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Commonwealth v. Pander, 100 A.3d 626, 630 (Pa. Super. 2014) (en

banc) (internal quotation marks and citation omitted), appeal denied, 109

A.3d 679 (Pa. 2015).      Further, in order to be eligible for PCRA relief, a

petitioner must plead and prove by a preponderance of the evidence that his

conviction or sentence arose from one or more of the errors listed at

Section 9543(a)(2) of the PCRA.       42 Pa.C.S.A. § 9543(a)(2).      One such

error, which provides a potential avenue for relief, is ineffective assistance of

counsel. Id. § 9543(a)(2)(ii). The issues raised must be neither previously

litigated nor waived. Id. § 9543(a)(3).

      Additionally, with regard to evidentiary hearings at the post-conviction

stage of proceedings, we observe the following.

            [T]he right to an evidentiary hearing on a post-
            conviction petition is not absolute. It is within the
            PCRA court’s discretion to decline to hold a hearing if
            the petitioner’s claim is patently frivolous and has no
            support either in the record or other evidence. It is
            the responsibility of the reviewing court on appeal to
            examine each issue raised in the PCRA petition in
            light of the record certified before it in order to
            determine if the PCRA court erred in its
            determination that there were no issues of material
            fact in controversy and in denying relief without
            conducting an evidentiary hearing.

Commonwealth v. Miller, 102 A.3d 988, 992 (Pa. Super. 2014) (citation

omitted). “We stress that an evidentiary hearing is not meant to function as

a fishing expedition for any possible evidence that may support some

speculative claim of ineffectiveness.” Commonwealth v. Roney, 79 A.3d

595, 604-605 (Pa. 2013) (internal quotation marks and citation omitted).

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“The controlling factor … is the status of the substantive assertions in the

petition.   Thus, as to ineffectiveness claims in particular, if the record

reflects that the underlying issue is of no arguable merit or no prejudice

resulted,   no   evidentiary    hearing     is    required.”    Commonwealth       v.

Baumhammers, 92 A.3d 708, 726-727 (Pa. 2014).                  This Court reviews the

decision to dismiss a PCRA petition without conducting an evidentiary

hearing for an abuse of discretion.          Miller, supra.     Thus, we must first

examine Appellant’s claim of ineffectiveness, for if we determine that

Appellant’s claim is without arguable merit or Appellant has not established

prejudice as a result of counsel’s action or inaction, the PCRA court was not

required to hold an evidentiary hearing. See Baumhammers, supra.

      “In order to obtain relief on a claim of ineffectiveness, a PCRA

petitioner must satisfy the performance and prejudice test set forth in

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

Reid, 99 A.3d 427, 436 (Pa. Super. 2014). In Pennsylvania, adherence to

the Strickland test requires a PCRA petitioner to establish three prongs.

Id. Specifically, the petitioner must demonstrate “(1) the underlying claim

has arguable merit; (2) no reasonable basis existed for counsel’s actions or

failure to act; and (3) the petitioner suffered prejudice as a result of

counsel’s error[.]”   Id.      With regard to the third prong, “prejudice [is]

measured by whether there is a reasonable probability that the result of the

proceeding would be different.”       Id.        Moreover, we presume counsel has


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rendered effective assistance.      Commonwealth v. Rivera, 108 A.3d 779,

789 (Pa. Super. 2014). “[I]f a claim fails under any required element of the

Strickland    test,   the   court   may    dismiss   the   claim   on   that   basis.”

Commonwealth v. Bomar, 104 A.3d 1179, 1188 (Pa. 2014), cert. denied,

--- U.S. ---, 2015 WL 2128333 (2015).           “Additionally, counsel cannot be

deemed ineffective for failure to raise a meritless claim.”         Rivera, supra.

(citation omitted).

      Appellant’s specific claim is that appellate counsel was ineffective for

failing to argue on appeal that the verdict was against the weight of the

evidence. Appellant’s Brief at 17. In support of this claim, Appellant argues

“[t]he Commonwealth’s evidence in this case was contradictory and

inconsistent throughout trial.” Id. He further contends, “the prosecution’s

case was built on mere speculation and pure conjecture.                   Conflicting

evidence was given throughout the trial.” Id. at 18.

      It is well established that it is for the factfinder to determine the

weight given to the evidence produced at trial.               Commonwealth v.

Ferguson, 107 A.3d 206, 212 (Pa. Super. 2015) (citation omitted).

Because it is the role of the factfinder to weigh the evidence, an appellant

seeking to challenge the weight of the evidence carries a heavy burden.

             If the factfinder returns a guilty verdict, and if a
             criminal defendant then files a motion for a new trial
             on the basis that the verdict was against the weight
             of the evidence, a trial court is not to grant relief
             unless the verdict is so contrary to the evidence as
             to shock one’s sense of justice.

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Id. “A new trial is not warranted because of a mere conflict in the testimony

and must have a stronger foundation than a reassessment of the credibility

of witnesses.”    Commonwealth v. Gonzalez, 109 A.3d 711, 723 (Pa.

Super. 2015).    “[O]nly where the facts and inferences disclose a palpable

abuse of discretion will the denial of a motion for a new trial based on the

weight of the evidence be upset on appeal.” Commonwealth v. Morales,

91 A.3d 80, 91 (Pa. 2014) (emphasis in original; citation omitted), cert.

denied, 135 S. Ct. 1548 (2015).

      Instantly, the PCRA court explained its determination that this claim

did not establish a right to relief as follows.

            In the instant [case], the evidence presented at trial
            overwhelmingly       supported    the   verdict,   thus
            [Appellant’s] claim is meritless. Moreover, because
            it is a meritless claim, [Appellant] was not prejudiced
            by Counsel’s failure to raise it.

                                         …

                    Officer Ditizio testified that he pulled over
            [Appellant] for running a stop sign. He discovered
            that [Appellant] was driving with a suspended license
            in a vehicle that didn’t belong to him, and whose
            owner he could not name. Officer Ditizio issued
            citations based on the preceding infractions, which
            [Appellant] placed in a billfold.       As [Appellant]
            walked away, Officer Ditizio witnessed him throw the
            billfold into a nearby trashcan. The billfold was later
            recovered from the trashcan containing the issued
            citations as well as [Appellant]’s identification and
            185 pills of Ecstacy. In addition to Officer Ditizio’s
            testimony, Detective John Ryan, a narcotics expert
            testified that such a quantity of pills was consistent
            with possession with intent to distribute, rather than

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            personal use. Also, the owner of the vehicle that
            [Appellant] was driving testified that [Appellant] did
            not have permission to drive the car.

                  In light of the evidence adduced at trial, the
            verdict did not “shock one’s sense of justice.”
            Consequently, appellate counsel cannot be deemed
            ineffective for failing to raise a meritless weight-of-
            the-evidence claim.

PCRA Court Opinion, 10/24/14, at 6-8.

     Upon review, we agree with the PCRA court’s conclusion that

Appellant’s weight of the evidence claim is meritless.    The fact-finder was

free to assess the evidence presented and absent a palpable abuse of

discretion by the trial court we will not disturb this finding on appeal. See,

Morales. Therefore, because the underlying weight of the evidence claim

lacked arguable merit, the PCRA court was not required to hold an

evidentiary hearing. See Baumhammers, supra; Reid, supra.

     Based on the foregoing, we conclude the PCRA court correctly

dismissed Appellant’s PCRA petition without an evidentiary hearing.      See

Pander, supra. Accordingly, the PCRA court’s September 2, 2014 order is

affirmed.

     Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/20/2015




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