J-A21014-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA                :   IN THE SUPERIOR COURT OF
                                             :        PENNSYLVANIA
                                             :
              v.                             :
                                             :
                                             :
 DAVID MURAD                                 :
                                             :
                    Appellant                :   No. 2571 EDA 2017

                  Appeal from the PCRA Order July 13, 2017
  In the Court of Common Pleas of Philadelphia County Criminal Division at
                      No(s): CP-51-CR-0008858-2008


BEFORE: BOWES, J., OLSON, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY BOWES, J.:                           FILED FEBRUARY 20, 2020

      David Murad appeals from the order denying his petition filed pursuant

to the Post-Conviction Relief Act (“PCRA”). Upon review, we affirm.

      On November 18, 2007, Appellant was working the night shift as a

cashier for Central Parking, the company which operated a parking facility at

a Dave and Buster’s in Philadelphia.         Eighty-one-year-old Emanuel Daniel

(“Victim”) was also working the night shift as an assistant manager for Central

Parking. As assistant manager, one of Victim’s duties was to count the night’s

cash receipts with Appellant. At approximately 11:00 p.m., Victim approached

Appellant and instructed him to bring his register drawer to the night

manager’s office. Once inside of the office, Appellant informed Victim that he

had forgotten a parking ticket inside his cashier’s booth, and Appellant left the

office purportedly to retrieve the ticket.
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        A couple of minutes later, Appellant returned to the office accompanied

by a man wearing a “lady’s wig,” positioned in such a way that only his eyes

were visible. See N.T. Jury Trial – Volume One, 1/13/10, at 74. The man

wearing the wig demanded that Victim “give me the money” multiple times.

Id. at 75. Victim did not initially respond, assuming this was a practical joke.

Id. As a result, the man repeatedly hit Victim in the head with a firearm,

causing him to fall onto the floor. Appellant shouted at Victim, “give him the

money, give him the money.” Id. at 76. Bleeding from his skull, Victim briefly

lost consciousness while Appellant gave the assailant approximately $5,000 in

cash.

        When Victim regained consciousness, Appellant was laying on top of

him. His assailant pointed a gun at Victim and said, “I’m going to kill you.”

Id. at 76. Victim responded, “stop in the name of Jesus and get out. Take

what you want.” Id. The man left the office, but Appellant remained behind.

Although Victim told Appellant to call 911, he did not. Instead, the sole 911

call was made by Victim, during which he can be heard screaming for

assistance. Id. at 136-37. The assailant never directed any orders or threats

at Appellant.

        Philadelphia police quickly arrived at the scene.   They found Victim

laying on the floor in the office, which was covered in blood.      Victim was

immediately transported to the hospital, where he was treated for a

paraorbital hematoma, skull fracture, and two rib fractures. Victim can no




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longer work.   He sustained memory loss and requires the assistance of a

walker in order to stand and move around.

      Appellant waited for the police just outside of the office.     Upon their

arrival, officers observed Appellant to be completely unharmed, with no blood

on his clothes, and “pretty calm considering the circumstances.” Id. at 44.

Appellant told police that an unknown male, wearing a black wig covering his

face, had entered the office with a handgun demanding money from the safe.

He continued that he pled unsuccessfully with Victim to give in to the robber’s

demands, and reported that he was forced to hold Victim down while the

perpetrator took the money. Id. at 38-42.

      During their investigation, police discovered that, prior to the robbery,

Appellant did not have a cell phone since his previous phone had been “turned

off.” See N.T. Jury Trial – Volume Two, 1/14/10, at 18. However, a couple

of days after the robbery, Appellant spent $350 or $450 in cash to purchase

a new cell phone and service.

      Appellant was arrested and charged with aggravated assault, criminal

conspiracy, robbery, possession of an instrument of a crime (“PIC”), and

recklessly endangering another person.        On January 13, 2010, Appellant

proceeded to a jury trial.   After the close of the Commonwealth’s case-in-

chief, the trial court granted defense counsel’s motion for judgment of

acquittal on PIC.    Additionally, defense counsel and the Commonwealth

stipulated that, if called, Appellant’s father and girlfriend would have testified

that Appellant has a reputation in the community for being a peaceful and

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law-abiding citizen.   Id.      The jury convicted Appellant of the remaining

charges.   Sentencing was deferred pending preparation of a pre-sentence

investigation report (“PSI”).

      On March 25, 2010, the trial court sentenced Appellant to four to eight

years of imprisonment on the robbery charge, a consecutive three to six years

of confinement on the criminal conspiracy charge, and a concurrent three to

six years of imprisonment on the aggravated assault charge. Appellant filed

a timely appeal and complied with the trial court’s order to file a concise

statement of errors complained of on appeal. On appeal, he challenged the

sufficiency of the evidence to convict him using a vicarious liability theory, and

two of the trial court’s evidentiary rulings which permitted the Commonwealth

to introduce testimony of Appellant’s demeanor after the robbery and to tell

the jury in closing argument that Appellant did not have sufficient funds prior

to the robbery to purchase a cell phone. The trial court filed its Pa.R.A.P.

1925(a) opinion and we affirmed Appellant’s judgment of sentence.            See

Commonwealth v. Murad, 50 A.3d 251 (Pa.Super. 2012) (unpublished

memorandum). Our Supreme Court denied Appellant’s petition for allowance

of appeal. See Commonwealth v. Murad, 56 A.3d 397 (Pa. 2012).

      Appellant filed a timely pro se PCRA petition, alleging ineffective

assistance of counsel without further elaboration. Counsel was appointed and

filed an amended PCRA petition on Appellant’s behalf.          In the amended

petition, Appellant challenged trial counsel’s effectiveness for: (1) failing to

present evidence of Appellant’s bank account statement showing that, prior

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to the robbery, Appellant had made deposits in his savings account for a new

cell phone; (2) for failing to object to a T-Mobile employee’s testimony that

Appellant bought a cell phone at his store without any documentation proving

purchase; and (3) alleging prosecutorial misconduct during closing argument.

In a supplemental PCRA petition, Appellant added an additional claim

challenging trial counsel’s effectiveness for failing to get Appellant’s approval

before stipulating to character witness testimony.

      The Commonwealth filed a motion to dismiss the PCRA petition, in which

it argued: (1) that the bank account claim was underdeveloped; (2) that the

T-Mobile objection was meritless, as lack of supporting documentation would

have gone to weight not admissibility of the testimony; and, (3) that the

prosecutor’s remarks were made in fair response to comments made by trial

counsel during his closing statement.       The PCRA court agreed with the

Commonwealth, and after issuing notice of its intent to dismiss the petition

without a hearing, dismissed the petition on July 13, 2017. This timely appeal

followed. The PCRA court issued its Pa.R.A.P. 1925 opinion without directing

that Appellant file a concise statement of errors complained of on appeal

pursuant to Pa.R.A.P. 1925(b).

      Appellant raises three issues, which we have reordered for ease of

disposition:

      I.       Whether the court erred in not granting relief on the PCRA
               petition alleging trial counsel was ineffective.




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      II.    Whether the court erred in not granting relief on the PCRA
             petition alleging the prosecutor committed misconduct
             during her closing remarks.

      III.   Whether the court erred in denying the Appellant’s PCRA
             petition without a hearing on the issues raised in the
             amended PCRA       petition regarding   trial  counsel’s
             ineffectiveness.

Appellant’s brief at 8.

      We begin with a discussion of the pertinent legal principles. Our “review

is limited to the findings of the PCRA court and the evidence of record” and

we do not “disturb a PCRA court’s ruling if it is supported by evidence of record

and is free of legal error.” Commonwealth v. Rykard, 55 A.3d 1177, 1183

(Pa.Super. 2012).     Similarly, “[w]e grant great deference to the factual

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

no support in the record. However, we afford no such deference to its legal

conclusions.”   Id.       “[W]here the petitioner raises questions of law, our

standard of review is de novo and our scope of review is plenary.” Finally, we

“may affirm a PCRA court’s decision on any grounds if the record supports it.”

Id.

      Appellant’s first claim contains three sub-parts raising allegations of trial

counsel ineffectiveness.       In reviewing claims of ineffective assistance of

counsel, counsel is presumed to be effective, and a PCRA petitioner bears the

burden of proving otherwise. Commonwealth v. Becker, 192 A.3d 106, 112

(Pa.Super. 2018). To do so, the petitioner must plead and prove (1) the legal

claim underlying his ineffectiveness claim has arguable merit; (2) counsel’s

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decision to act (or not) lacked a reasonable basis designed to effectuate the

petitioner’s interests; and that (3) prejudice resulted.    Id.   The failure to

establish any of the three prongs is fatal to the claim. Id. at 113.

      In his first sub-claim, Appellant challenges trial counsel’s decision to

stipulate to the testimony of two character witnesses rather than putting forth

their live testimony. Appellant’s brief at 18. In his brief, Appellant equates a

stipulation to testimony with the complete failure to call a witness in order to

support his premise that he was prejudiced by the absence of live character

witness testimony at his trial.     Id. at 19.    We do not agree with this

characterization.

      At trial, Appellant’s counsel read the following stipulation to the jury:

      . . . There has been a stipulation by and between counsel that if
      called to testify, Mr. John Correa, who is in the courtroom now,
      and Ms. Latice Scoffield, who was present yesterday but was not
      able to be present today, would testify that they both know
      [Appellant], they know his reputation in the community. And in
      the community he also has a reputation of being a peaceful and
      law-abiding citizen.

           Mr. Correa is [Appellant’s] father and Ms. Scoffield is
      [Appellant’s] girlfriend.

N.T. Jury Trial – Volume Two, 1/14/10, at 86. As a result of this stipulation

and at defense counsel’s request, the trial court also delivered the following

instruction to the jury before it began deliberating:

      The defense offered evidence tending to prove that the defendant
      is a person of good character and that was done by stipulation, if
      you recall from family members. Now, I’m speaking of testimony
      of good character of the defendant being a law-abiding and
      peaceable individual. The law recognizes that a person of good

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     character is not likely to commit a crime that is contrary to that
     person’s nature. The evidence of good character made by itself
     raises a reasonable doubt of guilty and requires a verdict of not
     guilty.

N.T. Jury Trial – Volume Three, 1/15/10, at 17.

     A review of the record reveals that the jury was given the substance of

the character witness testimony through stipulation and then properly

instructed by the trial court regarding the nature of that evidence. Appellant

cites to Commonwealth v. Gillespie, 620 A.2d 1143 (Pa.Super. 1993), as

support for his position. However, Gillespie involved a complete failure to

investigate and prepare potential character witnesses.       That is not what

happened here. Trial counsel not only interviewed the character witnesses,

but they were present at trial. Also, counsel prepared and read a stipulation

to the jury that contained the substance of their testimony. Since the lone

case upon which Appellant relies is inapposite, Appellant has not persuaded

us that live testimony from the two character witnesses would have changed

the outcome that the PCRA court erred when it dismissed this claim.

     Next, Appellant alleges that counsel was ineffective for failing to present

a Bank of America statement to the jury showing that he had saved $500 for

the purchase of a new cell phone. The Commonwealth argues, and the trial

court found, that Appellant did not meet his burden because he failed to

produce the actual bank statement or evidence that it ever existed.        See

Commonwealth’s brief at 10; see also PCRA Court Opinion, 10/30/17, at 2.

We agree. Without evidence that such a bank statement existed, Appellant

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cannot prove that counsel did anything wrong.             See Commonwealth v.

Pursell, 724 A.2d 293, 311 (Pa. 1999) (“Claims of ineffective assistance of

counsel that are based on speculation and conjecture do not adequately

establish the degree of prejudice necessary; namely, that there is reasonable

probability that, but for counsel’s errors, the outcome of the proceeding would

have been different”). Accordingly, we find that the PCRA court did not abuse

its discretion when it dismissed this claim.

      In his third-sub claim, Appellant argues that counsel was ineffective for

failing to object to the testimony of T Mobile employee Irvin Velez, that

observed Appellant come into the store where he worked and purchase a cell

phone for $350 or $450 in cash in the days following the robbery. Appellant’s

brief at 20-21; see also N.T. Jury Trial – Volume Two, 1/14/10, at 68-70.

Appellant explains that this testimony should have been excluded because

Velez only observed Appellant making a purchase, and did not provide any

documentation verifying the purchase to the jury.                    Id. at 21.   The

Commonwealth counters that “there was nothing objectionable about [the

employee’s] testimony” and counsel cannot be ineffective for failing to raise a

meritless objection. Commonwealth’s brief at 12. We agree.

      A review of the record reveals that Mr. Velez’s testimony was properly

confined to his own observations of Appellant, which the Commonwealth

utilized   in   order   to   help   establish   motive   for   the    robbery.    See

Commonwealth v. Brown, 911 A.2d 576, 584 (Pa.Super. 2006) (allowing


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evidence that the accused did not have money prior to a robbery to be

introduced to establish a financial difficulties motive).        Further, on cross-

examination, counsel addressed all of Appellant’s alleged issues when he

pointed out that Mr. Velez did not know exactly how much Appellant had paid

for the phone, did not have a receipt, and did not personally assist Appellant

with the purchase of the phone. N.T. Jury Trial – Volume Two, 1/14/10, at

72-74. Therefore, Appellant’s claim is meritless and the PCRA court did not

err in dismissing it.

         In his second issue, Appellant argues that counsel was ineffective for

failing to object to certain remarks of the prosecutor during closing argument.

Appellant’s brief at 21-23.      The following law applies to our review of this

issue.

         With specific reference to a claim of prosecutorial misconduct in a
         closing statement, it is well settled that any challenged
         prosecutorial comment must not be viewed in isolation, but rather
         must be considered in the context in which it was offered. Our
         review of a prosecutor’s comment and an allegation of
         prosecutorial misconduct requires us to evaluate whether a
         defendant received a fair trial, not a perfect trial. Thus, it is well
         settled that statements made by the prosecutor to the jury during
         closing argument will not form the basis for granting a new trial
         unless the unavoidable effect of such comments would be to
         prejudice the jury, forming in their minds fixed bias and hostility
         toward the defendant so they could not weigh the evidence
         objectively and render a true verdict. The appellate courts have
         recognized that not every unwise remark by an attorney amounts
         to misconduct or warrants the grant of a new trial. Additionally,
         like the defense, the prosecution is accorded reasonable latitude,
         may employ oratorical flair in arguing its version of the case to
         the jury, and may advance arguments supported by the evidence
         or use inferences that can reasonably be derived therefrom.
         Moreover, the prosecutor is permitted to fairly respond to points

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      made in the defense’s closing, and therefore, a proper
      examination of a prosecutor’s comments in closing requires review
      of the arguments advanced by the defense in summation.

Commonwealth v. Jones, 191 A.3d 830, 835–36 (Pa.Super. 2018).

            Appellant identifies six statements made by the prosecutor during

closing argument that counsel failed to challenge. We proceed mindful of the

following: “In determining whether the prosecutor engaged in misconduct,

we must keep in mind that comments made by a prosecutor must be

examined within the context of defense counsel’s conduct. It is well settled

that the prosecutor may fairly respond to points made in the defense closing.”

Commonwealth v. Chmiel, 889 A.2d 501, 544 (Pa. 2005). Thus, a proper

examination of the comments requires a review of the arguments advanced

on both sides.

      First, Appellant points to the prosecutor’s alleged “expression” of

“personal belief in Appellant’s guilt.” Appellant’s brief at 23. The allegedly

offensive argument is reproduced in context as follows:

      . . . . This has been my case. I prosecute cases that demand
      justice. And this one is definitely one of those. It’s not perfect.
      I didn’t adopt it to prove my winning record or anything
      like that. But this case demands justice because of Emanuel
      Daniel, a person who came to this country and worked very hard
      his entire life only to have his [thirty-five]-year career ended by
      this brutal incident.

N.T. Jury Trial – Volume Two, 1/14/10, at 99 (emphasis added to specific

statements Appellant is challenging).




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      The PCRA court reviewed these two statements and, relying on

Commonwealth v. Reid, 99 A.3d 470 (Pa. 2014), concluded that this claim

was meritless. In Reid, an appellant alleged that the prosecutor committed

misconduct when he concluded his closing argument as follows:               “the

Commonwealth demands justice. [The victim] demands justice. Those of us

who still believe right is right and wrong is wrong demand justice.” Id. at

509. Our High Court disagreed, concluding that this remark was legitimately

grounded in the record and did not have “the unavoidable effect of prejudicing

the jurors, or creating a fixed bias or hostility that would prevent them from

rendering a fair verdict based on the evidence.” Id. at 509-10. The purported

expression of belief in Appellant’s guilt here was far less explicit than the one

found permissible in Reid. Thus, we discern no abuse of discretion in the

PCRA court’s conclusion that Appellant’s ineffective assistance claim lacks

arguable merit.

      Next, Appellant focuses on additional comments that he alleges

“[impermissibly] inflamed the passions of the jury,” since they reflected the

prosecutor’s personal belief in Appellant’s guilt. Appellant’s brief at 23. The

Commonwealth counters that these remarks constituted fair response to

arguments     made     in   defense     counsel’s   own    closing    argument.

Commonwealth’s brief at 16. The PCRA court found the claim to be meritless

and we discern no error.




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      In his closing argument, trial counsel claimed that Appellant was merely

a witness to the robbery and should not be convicted merely because he was

too scared to intervene. In relevant part, trial counsel argued:

            And in deference to you, Jury No. 4, unfortunately,
      everybody can’t be a hero. It would have been very nice. It would
      have been wonderful if when this took place, [Appellant] would
      have acted heroic and intervened and stopped all of this from
      happening. That is great. It sounds like a movie. We would have
      loved that. Unfortunately, everybody is not a hero and people get
      scared. And while it’s nice to say, hey, it would have been great
      if he would have jumped and hugged this [eighty-one] year-old
      man. Well, if you see somebody assaulted and robbed with a gun,
      who’s to say how any of us would respond?

N.T. Jury Trial – Volume Two, 1/14/10, at 94-95.            The Commonwealth

responded to the defense’s innocent bystander theory:

            And when you look at this brutal incident and all of the facts,
      there is no way that [Appellant] was not involved, that he did not
      plan, that he did not orchestrate, that he did not take a role in
      what happened.

             No, I’m not saying that [Appellant] beat [Victim] about the
      head. I’m not saying he [is] merely morally bankrupt for
      standing by and allowing it to happen. He made it happen.
      He was part of it happening. You look at all of the little pieces and
      there is plenty of evidence here. But like I said, it’s small and you
      can put all those little pieces together, every little fact. And these
      facts convict [Appellant].

             Sometimes it’s about what the defendant doesn’t do.
      Sometimes it’s about what the gunman doesn’t do. In this case I
      told you that I’m going to be relying on your common sense to
      come to the right verdict in this case. And does your common
      sense tell you that when the gunman enters a room where he’s
      planning on taking control of that room to rob several thousand
      dollars in money and he sees an [eighty-one] year-old man and
      young healthy fit [twenty]-year-old man? Ignores him. Because
      let’s be very clear on this.


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             [Appellant] wasn’t ordered to do a damn thing by the
      robber, by the gunman. He wasn’t told to get down on the ground.
      He wasn’t told to put his hands up. He wasn’t told to do anything.
      He wasn’t even addressed. He was completely ignored because
      he was part of the plan. No robber would ever ignore another
      person in the room unless he was part of it. Let’s be clear on that.
      Your common sense is screaming to you when you hear those
      facts. What didn’t the defendant do in this case? [Appellant]
      didn’t try to escape.

             That booth is mere feet away from that door. When [Victim]
      put it out where [Appellant] was, right here, right by the door –
      he would have had to turn around and walk out that door. He
      could have reached across the desk and grabbed this phone and
      called the police. Called for help. Yelled for security. He did
      nothing. That doesn’t merely make him a bad person for
      doing nothing.       It indicates his guilt.      That’s why it’s
      important.    I’m not trying to prove to you the extent of
      [Appellant’s] character. I’m trying to prove his complicity in this
      crime.

Id. at 99-102 (emphasis added to denote statements that Appellant is

challenging).

      Viewing   the    statements in     their   context, it    is clear      that the

Commonwealth’s        comments   represented      a   fair   response    to    defense

contentions. The Commonwealth was not calling Appellant “morally bankrupt”

or “a bad person” as Appellant suggests.              Id. at 23.        Instead, the

Commonwealth was arguing that the fact that the gunman ignored Appellant,

a young healthy person, and instead targeted an elderly man, and that

Appellant did not attempt to escape or assist, indicated that Appellant was a

co-conspirator. The prosecutor properly grounded her argument in the record,

making references to the circumstantial evidence the Commonwealth put forth

in its case-in-chief and drawing inferences from that evidence as she was

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entitled to do. As such, the PCRA court did not abuse its discretion when it

concluded that this portion of the ineffective assistance claim lacked arguable

merit.

      Next, Appellant maintains that the prosecutor’s reference in closing

argument to her own modest wage when discussing Appellant’s purchase of

an expensive cell phone after the robbery was improper because “it introduced

issues broader than the guilt or innocence of the accused under the controlling

law.” Appellant’s brief at 23. The Commonwealth contends that the value of

Appellant’s cell phone was important evidence of motive. Commonwealth’s

brief at 18. While the Commonwealth concedes that the prosecutor’s salary

was not relevant, it argues that the comment was permissible oratorical flair.

Id. The PCRA court agreed.

      As we have previously explained, “[i]t is well settled that a prosecutor

has considerable latitude during closing arguments and his arguments are fair

if they are supported by the evidence or use inferences that can reasonably

be derived from the evidence.” Commonwealth v. Holley, 945 A.2d 241,

250 (Pa.Super. 2008).    Importantly, “prosecutorial misconduct will not be

found where comments were based on the evidence or proper inferences

therefrom or were only oratorical flair.” Chmiel, supra at 544.

      At trial, evidence was introduced that Appellant could not afford a cell

phone before the robbery. N.T. Jury Trial – Volume Two, 1/14/10, at 18. In




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the days following the robbery, Appellant used cash to purchase a new cell

phone. Id. at 70-71. The allegedly improper comment follows:

      . . . . Days after the robbery [Appellant] goes to a store and pays
      at least $350 in cash for a brand new cell phone. Not just an
      ordinary cell phone. Not a basic cell phone like the ones
      maybe some of us poor government employees can afford,
      but a very fancy cell phone, a PDA-type of cell phone with all kind
      of functions that I probably can’t figure out, Internet, E-mail, all
      that stuff. That’s what he buys, when, before, he is a parking lot
      cashier working minimum wage on the weekend. That’s it. And
      all of a sudden out of the blue, days after a robbery occurs at his
      work, he’s got a whole bunch of cash. Cash. Who pays that much
      cash for a cell phone? How many of you are walking around with
      $350 cash in your wallets right now?

N.T. Jury Trial – Volume Two, 1/14/10, at 106-07 (emphasis added in order

to highlight the statement that Appellant is challenging).

      This argument was derived from evidence admitted at trial.             The

prosecutor was entitled to rely on this evidence to advance an argument that

Appellant had a financial motive to commit this crime. In fact, trial counsel

did object at trial but was overruled. On direct appeal, a challenge to the

court’s ruling regarding the propriety of the Commonwealth’s argument that

Appellant bought a cell phone with money from the robbery was rejected. Id.

at 106; Murad, supra. We find no arguable merit. Moreover, the fact that

the prosecutor also included a self-effacing comment about her own salary

adds nothing to Appellant’s position.

      Finally, Appellant alleges that the trial court erred by overruling defense

counsel’s objection to the prosecutor’s identification of Appellant in the

background on the 911 call, since no such identification was made at trial.

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Appellant’s brief at 24; see N.T. Jury Trial – Volume Two, 1/14/10, at 104-

05. This issue was properly preserved and could have been raised on direct

appeal. Appellant’s failure to do so, or offer any explanation in his brief for

why he did not raise it on direct appeal, is fatal to his claim, since issues that

could have been raised on direct appeal, but were not, are waived under the

PCRA. See 42 Pa.C.S. § 9544(b) (“[A]n issue 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 [PCRA petition.]”).

      Even if Appellant had couched this claim as one of appellate counsel

ineffectiveness, he would not be entitled to relief. At the time that defense

counsel objected, the trial court reminded the jurors that the arguments of

counsel were not to be considered evidence and that the jury’s recollection of

the evidence was controlling. Id. at 106. Therefore, not only did trial counsel

make the proper objection, but any potential prejudice caused by the

prosecutor’s argument was alleviated by the trial court’s instruction.       See

Commonwealth v. Robinson, 864 A.2d 460, 519 (Pa. 2004) (stating that

the trial court’s instruction to the jury that it should not consider prosecutor’s

statements as evidence cured any prejudice which may have been caused by

the comments made by the prosecutor). Accordingly, Appellant has failed to

make out the arguable merit or prejudice prongs.

      Finally, Appellant argues that the PCRA court erred when it denied his

request for an evidentiary hearing. Appellant’s brief at 16-17. Without any


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elaboration as to why, he asserts that he was entitled to an evidentiary hearing

on his ineffective assistance and prosecutorial misconduct claims. Id. We are

unpersuaded by Appellant’s boilerplate allegation.

      It is well-settled that “[t]here is no absolute right to an evidentiary

hearing on a PCRA petition, and if the PCRA court can determine from the

record that no genuine issues of material fact exist, then a hearing is not

necessary.” Commonwealth v. Jones, 942 A.2d 903, 906 (Pa.Super. 2008).

In order “to obtain 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.”

Commonwealth v. Hanible, 30 A.3d 426, 452 (Pa. 2011).

      Appellant’s inadequate argument has done nothing to refute the PCRA

court’s   conclusion   that   a   PCRA   hearing      was   unnecessary.       See

Commonwealth v. Watkins, 108 A.3d 692, 735 (Pa. 2014) (concluding that

if an appellant makes no attempt to identify specifically the “legitimate

material factual disputes” that he alleges warranted a hearing, as well as

develop relevant argument, his “claim of PCRA court procedural error cannot

succeed”); see also Commonwealth v. Jones, 912 A.2d 268, 290 (Pa.

2006) (rejecting an appellant’s assertion that his other claims warranted a

hearing when he failed both to identify and argue with specificity what factual

issues remained in contention).


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      Accordingly, we cannot conclude that the PCRA court’s denial of an

evidentiary hearing was an abuse of discretion. See Hanible, supra at 452-

53 (“Appellant has failed to satisfy [his] burden as his reliance on speculation

and failure to assert facts, which, if believed, would support his claim cannot

be equated with a genuine issue concerning a material fact that warrants an

evidentiary hearing”).

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/20/20




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