J-S67035-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                      Appellee                 :
                                               :
               v.                              :
                                               :
    MARQWISE STRATTON                          :
                                               :
                      Appellant                :        No. 489 EDA 2017

                  Appeal from the PCRA Order January 25, 2017
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0008646-2008


BEFORE:      GANTMAN, P.J., MUSMANNO, J., and STEVENS*, P.J.E.

MEMORANDUM BY GANTMAN, P.J.:                         FILED NOVEMBER 30, 2017

        Appellant, Marqwise Stratton, appeals from the order entered in the

Philadelphia County Court of Common Pleas, which denied his first petition

filed pursuant to the Post Conviction Relief Act.1 We affirm.

        In its opinion, the PCRA court fully and accurately sets forth the

relevant facts and procedural history of this case.        Therefore, we have no

need to restate them.          We add that the PCRA court initially dismissed

Appellant’s PCRA petition as untimely on January 6, 2017; and on January

25, 2017, Appellant filed a timely notice of appeal. On the same day, the

PCRA court vacated its January 6th order and entered a new order denying

Appellant’s PCRA petition on the merits.           Therefore, Appellant’s notice of
____________________________________________


1   42 Pa.C.S.A. §§ 9541-9546.


____________________________________
* Former Justice specially assigned to the Superior Court.
J-S67035-17


appeal related forward to January 25, 2017, the date the PCRA court entered

its amended order denying PCRA relief.2               The court ordered a concise

statement of errors complained of on appeal per Pa.R.A.P. 1925(b) on

January 27, 2017. The record indicates a copy of the court’s January 27th

order was sent to PCRA counsel, who failed to file the court-ordered

statement. On May 25, 2017, PCRA counsel, who is also appellate counsel,

filed   in   this   Court   an   application   to   withdraw   as   counsel   and   an

accompanying appellate brief pursuant to Commonwealth v. Turner, 518

Pa. 491, 544 A.2d 927 (1988) and Commonwealth v. Finley, 550 A.2d

213 (Pa.Super. 1988) (en banc).

        As a prefatory matter, we observe the failure to file a court-ordered

Rule 1925(b) statement generally constitutes a waiver of all issues.

Commonwealth v. Lord, 553 Pa. 415, 719 A.2d 306 (1998).                         “[T]o

preserve their claims for appellate review, [a]ppellants must comply

whenever the trial court orders them to file a Statement of [Errors]

Complained of on Appeal pursuant to Pa.R.A.P. 1925. Any issues not raised

in a Pa.R.A.P. 1925(b) statement will be deemed waived.” Commonwealth

v. Castillo, 585 Pa. 395, 403, 888 A.2d 775, 780 (2005) (citing Lord,

supra at 420, 719 A.2d at 309).

        Our Supreme Court revised Rule 1925 to provide a remedy when a

____________________________________________


2   Hence, no appellate jurisdictional defects impede our review.



                                           -2-
J-S67035-17


criminal appellant’s counsel fails to file a court-ordered Rule 1925(b)

statement.3 See Pa.R.A.P. 1925(c)(3); Commonwealth v. McBride, 957

A.2d 752, 755 (Pa.Super. 2008). Rule 1925(c)(3) allows the appellate Court

to remand “for the filing of a Statement nunc pro tunc and for the

preparation and filing of an opinion by the judge,” if the court ordered an

appellant in a criminal case to file a Rule 1925(b) statement and appellant

failed to do so, and the appellate court is convinced that counsel has been

per se ineffective. Pa.R.A.P. 1925(c)(3).

        Interpreting the revised Rule 1925(c)(3), this Court has held that

counsel’s failure to file a court-ordered Rule 1925(b) statement is per se

ineffectiveness.      Commonwealth v. Burton, 973 A.2d 428, 431-32

(Pa.Super. 2009) (en banc). Generally, when waiver occurs due to counsel’s

complete failure to file a Rule 1925(b) statement, remand is proper.

Commonwealth v. Mitchell, 986 A.2d 1241, 1244 n.4 (Pa.Super. 2009)

(noting counsel’s failure to file court-ordered Rule 1925(b) statement

required remand for filing of concise statement nunc pro tunc under revised

Rule 1925(c)(3)); Commonwealth v. Scott, 952 A.2d 1190, 1192

(Pa.Super. 2008) (recognizing recent amendment to Rule 1925 relaxed strict

application of Lord and stating, “pursuant to the amended version of Rule

1925, the complete failure by counsel to file a Rule 1925(b) statement, as

____________________________________________


3   Rule 1925 was amended on May 10, 2007, and again on January 13, 2009.



                                           -3-
J-S67035-17


ordered, is presumptively prejudicial and clear ineffectiveness”).         Upon

remand, counsel must file a Rule 1925(b) statement nunc pro tunc;

thereafter, the trial court should prepare an opinion, file it, and forward it to

this Court within 30 days. Scott, supra at 1192-93. See also McBride,

supra (remanding for filing of Rule 1925(b) statement or statement of

intent to file no-merit brief per Rule 1925(c)(4), where appellate counsel

failed to file court-ordered concise statement, but later filed no-merit brief

and petition to withdraw as counsel on appeal).       Nevertheless, this Court

may decline to remand, where we have an adequate record for review.

Burton, supra at 433 (stating choice to review appeal and not remand for

filing of concise statement, under certain circumstances, is consistent with

our Supreme Court’s “intent to avoid unnecessary delay in the disposition on

the merits of cases which results from per se ineffectiveness of appellant’s

counsel”).

      In the past, our Supreme Court proposed that Rule 1925(c)(3) might

not even be available in a PCRA appeal. Commonwealth v. Hill, 609 Pa.

410, 428 n.14, 16 A.3d 484, 495 n.14 (2011) (interpreting prior version of

Rule 1925, which had no subsection (c)(3); suggesting Rule 1925(c)(3)

would not apply in PCRA cases, because language of Rule 1925(c)(3)

specifies application in “criminal cases” and PCRA is “civil” in nature).     On

the other hand, this Court has observed that Rule 1925(c)(3) might apply in

PCRA cases under certain circumstances. Commonwealth v. Oliver, 128


                                      -4-
J-S67035-17


A.3d 1275, 1279 (Pa.Super. 2015) (declining to apply Lord to deem PCRA

appellant’s issues waived, where PCRA counsel is still counsel of record when

the PCRA court orders Rule 1925(b) statement, counsel failed to file

statement on appellant’s behalf, and the record reveals irregularities

surrounding PCRA counsel’s Turner/Finley letter and petition to withdraw).

Rather, the Oliver Court explained it would not remand if the record and the

PCRA court opinion addressed any claim an appellant could raise on appeal.

Id. at 1279-80.

     Instantly, Appellant filed his first PCRA petition while his petition for

permission to file for allowance of appeal from his judgment of sentence

nunc pro tunc was still pending before the state Supreme Court.           The

Supreme Court allowed Appellant to file a petition for allowance of appeal

nunc pro tunc but ultimately denied further review on March 13, 2013. Once

Appellant had exhausted his direct appeal rights, the court appointed

counsel for Appellant’s previously filed PCRA petition. In the PCRA petition,

Appellant raised one issue: Whether trial counsel was ineffective for failing

to communicate a plea offer to Appellant, which Appellant would have

accepted but for counsel’s omission and which would have meant doing less

time in prison than the sentenced imposed. (See Appellant’s PCRA Petition

at ¶9).   After Appellant filed a notice of appeal, the court ordered a Rule

1925(b) statement and served it on counsel. Counsel failed to file the court-

ordered Rule 1925(b) statement or a Rule 1925(c)(4) statement of intent to


                                    -5-
J-S67035-17


file a Turner/Finley brief, which is considered per se ineffectiveness.4 See

Oliver, supra; Scott, supra. Appellant, however, raised only one issue in

his amended PCRA petition, and the PCRA court denied Appellant relief on

the merits, without a hearing, after complying with Pa.R.Crim.P. 907 notice.

Therefore, counsel could have raised only that one claim in a Rule 1925(b)

statement.      See generally Commonwealth v. Bond, 572 Pa. 588, 819

A.2d 33 (2002) (reiterating that only claims properly presented to PCRA

court are preserved for appellate review); Pa.R.A.P. 302(a) (governing

requisites for reviewable issue on appeal).         Further, the PCRA court’s Rule

1925(a) opinion and counsel’s Turner/Finley brief on appeal both address

only that one issue. Additionally, we have an adequate record to review the

appeal. Under these circumstances, and in the interest of judicial economy,

we decline to remand because: (a) a remand would serve no practical

purpose, particularly if counsel decided to file a Rule 1925(c)(4) statement;

(b) a remand would cause unnecessary and needless delay in the resolution

of the appeal; and (c) we have an adequate record for review. See Burton,

supra; Oliver, supra.

       As   a   second     prefatory     matter,   before   counsel   can   withdraw

representation under the PCRA, Pennsylvania law requires counsel to file a

“no-merit” brief or letter pursuant to Turner and Finley. Commonwealth
____________________________________________


4Any waiver that could result on this basis would fall squarely on Appellant’s
current counsel for failure to comply with the PCRA court’s directive.



                                           -6-
J-S67035-17


v. Karanicolas, 836 A.2d 940 (Pa.Super. 2003).

        [C]ounsel must…submit a “no-merit” letter to the [PCRA]
        court, or brief on appeal to this Court, detailing the nature
        and extent of counsel’s diligent review of the case, listing
        the issues which the petitioner wants to have reviewed,
        explaining why and how those issues lack merit, and
        requesting permission to withdraw.

        Counsel must also send to the petitioner: (1) a copy of the
        “no-merit” letter/brief; (2) a copy of counsel’s petition to
        withdraw; and (3) a statement advising petitioner of the
        right to proceed pro se or by new counsel.

        If counsel fails to satisfy the foregoing technical
        prerequisites of Turner/Finley, the court will not reach
        the merits of the underlying claims but, rather, will merely
        deny counsel’s request to withdraw. Upon doing so, the
        court will then take appropriate steps, such as directing
        counsel to file a proper Turner/Finley request or an
        advocate’s brief.

Commonwealth v. Wrecks, 931 A.2d 717, 721 (Pa.Super. 2007) (internal

citations omitted).   “Substantial compliance with these requirements will

satisfy the criteria.” Karanicolas, supra at 947.

     Instantly,   counsel’s   application   to   withdraw   as   counsel   and

Turner/Finley brief detail the nature of counsel’s review and explain why

Appellant’s issue lacks merit. Counsel’s brief also demonstrates he reviewed

the certified record and found no meritorious issues for appeal.        Counsel

notified Appellant of counsel’s request to withdraw and advised Appellant

regarding his rights.     Thus, counsel substantially complied with the

Turner/Finley technical requirements. See Wrecks, supra; Karanicolas,

supra. Appellant filed no response to counsel’s petition to withdraw.


                                     -7-
J-S67035-17


     Counsel raises one issue on appeal:

        [WHETHER] THE PCRA COURT COMMITTED AN ABUSE OF
        DISCRETION BY DENYING APPELLANT AN EVIDENTIARY
        HEARING AND RELIEF ON HIS CLAIM ASSERTING THAT
        TRIAL   COUNSEL   WAS    INEFFECTIVE   FOR NOT
        COMMUNICATING A PLEA OFFER TO APPELLANT[?]

(Turner/Finley Brief at 5).

     Our standard of review of the denial of a PCRA petition is limited to

examining    whether    the   evidence    of      record   supports      the   court’s

determination   and    whether   its     decision     is   free   of   legal     error.

Commonwealth v. Conway, 14 A.3d 101 (Pa.Super. 2011), appeal denied,

612 Pa. 687, 29 A.3d 795 (2011). This Court grants great deference to the

findings of the PCRA court if the record contains any support for those

findings. Commonwealth v. Boyd, 923 A.2d 513 (Pa.Super. 2007), appeal

denied, 593 Pa. 754, 932 A.2d 74 (2007).            We give no such deference,

however, to the court’s legal conclusions.         Commonwealth v. Ford, 44

A.3d 1190, 1194 (Pa.Super. 2012). Further, a petitioner is not entitled to a

PCRA hearing as a matter of right; the PCRA court can decline to hold a

hearing if there is no genuine issue concerning any material fact, the

petitioner is not entitled to PCRA relief, and no purpose would be served by

any further proceedings.      Commonwealth v. Wah, 42 A.3d 335, 338

(Pa.Super.   2012);    Commonwealth          v.   Jones,    942   A.2d    903,    906

(Pa.Super. 2008), appeal denied, 598 Pa. 764, 956 A.2d 433 (2008).

     After a thorough review of the record, the briefs of the parties, the


                                       -8-
J-S67035-17


applicable law, and the well-reasoned opinion of the Honorable Glenn B.

Bronson, we conclude Appellant’s issue merits no relief.             The PCRA court

opinion properly disposes of the question presented.             (See PCRA Court

Opinion, filed March 29, 2017, at 2-3, 6) (finding: sole issue presented in

Appellant’s pro se and amended PCRA petitions was trial counsel’s alleged

ineffectiveness for failing to relay plea offer to Appellant; Appellant did not

specify what terms of alleged plea offer were not conveyed to him; in its

response to Appellant’s amended PCRA petition, Commonwealth attached

copy   of   Major   Trials   Unit   Case   Identification   Sheet     that    indicated

Commonwealth        had   offered   Appellant   sentence    of   6    to     20   years’

incarceration in exchange for guilty plea to aggravated assault, possession of

prohibited, PIC, and resisting arrest; Appellant elected to go to trial; after

trial, jury convicted Appellant of carrying firearm without license, possession

of firearm by prohibited person, and carrying firearm on streets of

Philadelphia, but acquitted him of aggravated assault and resisting arrest;

court sentenced Appellant to aggregate term of 5 to 10 years’ imprisonment;

sentence Appellant received was far less than Commonwealth’s pretrial

offer; trial counsel’s alleged failure to relate Commonwealth’s plea offer to

Appellant could not have prejudiced him).         The record supports the PCRA

court’s reasoning and decision to deny PCRA relief without an evidentiary

hearing.    See Wah, supra.         After an independent examination of the

record, we conclude the appeal is frivolous. Accordingly, we affirm based on


                                       -9-
J-S67035-17


the PCRA court’s opinion and grant counsel’s petition to withdraw.

     Order affirmed; counsel’s petition to withdraw is granted.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/30/2017




                                   - 10 -
                                                                                                    Circulated 11/16/2017 04:22 PM



                                  IN THE COURT OF COMMON PLEAS
                             FIRST JUDICIAL DISTRICT OF PENNSYLVANIA
                                      CRIMINAL TRIAL DIVISION


         COMMONWEALTH OF                                FILED                      CP-51-CR-0008646-2008
         PENNSYLVANIA
                                                        MAR   2 9 201'
                  v.                             Criminal Appeals                 CP-5 I-CR-0008646-200B
                                                                                                       Comm    v.   Stratton, Marqwise

                                              First Judicial DistrictUnit
                                                                                                     Opinion


         MARQWISE STRATTON                                              of R
                                                                                      11141911,16111,111,1111111
                                                   WAIVER OPINION


         BRONSON, J.                                                               March 29, 2017


         On December 2, 2009, following a jury trial before this Court, defendant Marqwise

Stratton was convicted of carrying a firearm without a license (18 Pa.C.S.                    §   6106(a)(1)),

carrying a firearm on a public street in Philadelphia (18 Pa.C.S.             §   6108), and possession of a

firearm by a prohibited person (18 Pa.C.S.          §   6105(a)).1 Defendant was found not guilty of

aggravated assault (18 Pa.C.S.        §   2702) and resisting arrest (18 Pa.C.S. §5104). On January

13, 2010, the Court imposed an aggregate sentence             of five to ten years incarceration. The

Court denied defendant's post -sentence motions on May 19, 2010. The Superior Court

affirmed defendant's judgment of sentence on October 3, 2011.

         Defendant filed a petition with the Pennsylvania Supreme Court on April 12, 2012,

seeking permission to file a petition for allocator nunc pro tunc. Defendant also filed a pro se

petition under the Post Conviction Relief Act ("PCRA") on May 29, 2012. However, before

this Court could rule on defendant's PCRA petition, the Supreme Court granted defendant's

petition to file a nunc pro tunc petition for allocator and defendant's direct appeal was

reinstated. The Pennsylvania Supreme Court ultimately denied allocator on March 13, 2013.


I Because the charge of possession of a firearm by a prohibited person required the Commonwealth to prove
defendant's prior felony conviction as an element of the offense, the Court severed that charge and submitted it
to the jury after it returned its verdict on the other charges.
       With defendant's direct appeal rights now exhausted,     ft          00604 Se      I     was


appointed to represent defendant for purposes of defendant's previously filed PCRA petition.

On August 9, 2016, counsel filed an Amended PCRA Petition ("Amended Petition"). On

November 21, 2016, pursuant to Pa.R.Crim.P. 907, the Court issued notice of its intent to

dismiss the petition without a hearing ("907 Notice"). Defendant filed a response to the 907

Notice on December 28, 2016. On January 6, 2017, the Court entered an order dismissing

defendant's PCRA Petition.

       On January 25, 2017, defendant filed a Notice of Appeal from the order of the Court

dismissing his PCRA petition. Thereafter, on January 27, 2017, the Court issued an order

pursuant to Pa.R.A.P. 1925(b) directing defendant to file a Concise Statement of Matters

Complained of on Appeal by February 17, 2017. As of the date of this opinion, however, the

Court has received no response to its 1925(b) order, and a check of the court docket shows

that no Concise Statement has been filed of record.

       Ordinarily, defendant's failure to file a Concise Statement in violation of a Rule

1925(b) order of the trial court results in all of defendant's issues on appeal being waived.

Commonwealth     v.   Castillo, 888 A.2d 775, 780 (Pa. 2005); Commonwealth    v.   Lord, 719 A.2d

306, 309 (Pa. 1998). While the trial court may extend the filing period "for good cause

shown," defendant must either request the extension in writing prior to the expiration of the

filing period or demonstrate "extraordinary circumstances" sufficient to justify nunc pro tunc

relief. See Pa.R.A.P. 1925(b)(2); Commonwealth v. Gravely, 970 A.2d 1137, 1145 & n.10

(Pa. 2009).

        When an appellate court is persuaded that the failure of appellate counsel to file a

court -ordered Concise Statement was per se ineffective assistance, Rule 1925 directs that

court to remand the case to the trial court for the filing of a Concise Statement nunc pro tunc.

                                                2
Pa.R.A.P. 1925(c)(3). Therefore, to avoid unnecessary delay, where there has been waiver of

the issues on appeal due to a late filing of a Concise Statement, if a trial court was able to

prepare an opinion addressing the issues raised on appeal an appellate court may decide the

appeal on the merits. Commonwealth v. Burton, 973       A.   2c1428, 433 (Pa. Super. 2009).

       The deadline for this Court tr transmit the record on appeal in this case to the Superior

Court was March 27, 2017, sixty days after defendant filed his notice of appeal. See

Pa.R.A.P. 1931(a). As stated above, the Concise Statement was due on February 17, 2017,

and is now 40 days overdue. Therefore, the Court finds that defendant's appellate claims have

been waived.

        However, the only issue presented by defendant in his Amended Petition was a claim

that trial counsel was ineffective "when he failed to communicate a plea bargain offer to the

Defendant, which the Defendant would have accepted and which would have meant doing less

time in prison than the sentence imposed" by the Court. Amended Petition at ¶ 9. As this was

the only issue presented by defendant, the Court will address this claim below in the interest

of judicial economy.

                                 I. FACTUAL BACKGROUND

        The factual basis underlying defendant's conviction was set forth in this Court's

1925(a) Opinion in defendant's direct appeal as follows:

        At about 11:00 p.m. on the night of December 4, 2007, Officer Waters
        stopped a 2002 Gold Chrysler Concord with a non-functioning taillight on the
        4200 block of Frankford Avenue. N.T. 12/01/2009 at 7-9. After the Concord
        pulled over, Officer Waters approached the driver's side of the vehicle and
        asked the driver, who was later identified as defendant, for his driver's license
        and vehicle registration. N.T. 12/01/2009 at 9-10. Neither defendant, who
        gave Officer Waters the alias "Marqwise Brown", nor the man in the front
        passenger's seat, were able to provide a driver's license or a vehicle
        registration for the car. N.T. 12/01/2009 at 9-10. After Officer Waters again
        asked the two men for a driver's license or a vehicle registration, the
        passenger opened up the glove compartment revealing a black semiautomatic
        handgun inside. N.T. 12/01/2009 at 10-11, 39. Seeing the gun, Officer Waters
                                                  3
      told defendant to turn off the car. N.T. 12/01/2009 at 11. Instead, defendant
      put the vehicle into drive and began to accelerate. N.T. 12/01/2009 at 11.

      To avoid being run over, Officer Waters had to quickly push himself away
      from defendant's car, but continued to hold on to the car and ran alongside it
      while ordering defendant to stop. N.T. 12/01/2009 at 11. Officer Waters let
      go of the car to avoid getting pinned against one of the pillars elevating the
      train tracks overhead, and defendant drove away. N.T 12/01/2009 at 11.
      Officer Waters read a description of the Concord as well as its license plate
      number over police radio and then proceeded to look for it unsuccessfully in
      the immediate area. N.T. 12/01/2009 at 11-12, 20. About ten minutes later,
       another police officer found the Concord abandoned on the 4300 block of
      Factory Street, about three blocks from where Officer Waters stopped
       defendant. N.T. 12/01/2009 at 20-21. Upon his arrival at that location, Officer
       Waters immediately recognized the car as the vehicle he had stopped just
       minutes before on the 4200 block of Frankford Avenue. N.T. 12/01/2009 at
       20-21.

       In the early morning hours of the next day, Officer Nieves, who was off-duty
       and wearing civilian clothes, was walking to his truck in the area of 4300
       Factory Street. There he encountered defendant, who walked out of chest -
       high grass from a fenced in field and told Officer Nieves: "[Y]o, I need a
       favor. I need to get out of here. I got money." N.T. 12/01/2009 at 89-90, 93-
       97, 121. Officer Nieves did not realize that defendant was wanted in
       connection with the car stop at 4200 Frankford Avenue and thought that
       defendant might be trying to carjack him. N.T. 12/01/2009 at 97-98, 119-120,
       124. After Officer Nieves identified himself as a police officer, a fight ensued
       during which a loaded, black semiautomatic handgun fell out of defendant's
       clothing. N.T. 12/01/2009 at 98-101, 103. Officer Nieves subdued defendant
       and detained him until other officers arrived. N.T. 12/01/2009 at 98-102.

       Defendant was arrested and taken back to 4300 Factory Street where Officer
       Waters identified him as the driver of the Gold Concord that he had stopped at
       4200 Frankford Avenue. N.T. 12/01/2009 at 22-24. Defendant was then
       transported by ambulance to a hospital where he was treated for injuries that
       he sustained from the fight with Officer Nieves. N.T. 12/01/2009 at 24-25,
       197.

Trial Court Opinion, filed September 30, 2010 at pp. 2-3.


                                       II. DISCUSSION

       An appellate court's review of a PCRA court's grant or denial of relief "is limited to

determining whether the court's findings are supported by the record and the court's order is

otherwise free of legal error." Commonwealth v. Yager, 685 A.2d 1000, 1003 (Pa. Super.
                                               4
1996) (citing Commonwealth       v.   Legg, 669 A.2d 389, 391 (Pa. Super. 1995)). The reviewing

court "will not disturb findings that are supported by the record." Id.

       Here, defendant's claim pertains to the alleged ineffective assistance of trial counsel.

Under Pennsylvania law, counsel is presumed effective and the burden to prove otherwise lies

with the petitioner. Commonwealth             v.   Basemore, 744 A.2d 717, 728 (Pa. 2000), n.10 (citing

Commonwealth     v.   Copenhefer, 719 A.2d 242, 250 (Pa. 1998)). To obtain collateral relief

based on the ineffective assistance of counsel, a petitioner must show that counsel's

representation fell below accepted standards of advocacy and that as a result thereof, the

petitioner was prejudiced. Strickland              v.   Washington, 466 U.S. 668, 694 (1984). In

Pennsylvania, the Strickland standard is interpreted as requiring proof that: (1) the claim

underlying the ineffectiveness claim had arguable merit; (2) counsel's actions lacked any

reasonable basis; and (3) the ineffectiveness of counsel caused the petitioner prejudice.

Commonwealth     v.   Miller, 987 A.2d 638, 648 (Pa. 2009); Commonwealth                 v.   Pierce, 527 A.2d

973, 974-75 (Pa. 1987). To satisfy the third prong of the test, the petitioner must prove that,

but for counsel's error, there is a reasonable probability that the outcome of the proceeding

would have been different. Commonwealth                    v.   Sneed, 899 A.2d 1067, 1084 (Pa. 2006) (citing

Strickland, 466 U.S. at 694). If the PCRA court determines that any one of the three prongs

cannot be met, then the court need not hold an evidentiary hearing as such a hearing would

serve no purpose. Commonwealth           v.    Jones, 942 A.2d 903, 906 (Pa. Super. 2008), app. denied,

956 A.2d 433 (Pa. 2008).

       In his Amended Petition, defendant alleged that trial counsel was ineffective "when he

failed to communicate a plea bargain offer to the Defendant, which the Defendant would have

accepted and which would have meant doing less time in prison than the sentence imposed"

by the Court., Amended Petition at ¶ 9. This claim is without merit.

                                                                5
       Counsel has an obligation to inform a defendant of any formal plea offers extended by

the prosecution and failure to convey such offers may constitute ineffective assistance of

counsel Missouri   v.   Frye, 132 S.Ct. 1399, 1408 (2013). In order to establish that counsel was

ineffective for failing to convey an offer, our Superior Court has held that defendant must

prove that: 1) an offer had been made; 2) counsel failed to inform the defendant of the offer;

3) counsel had no reasonable basis for failing to inform the defendant   of the offer; and 4) that

defendant suffered prejudice thereby. Commonwealth v. Copeland, 554 A.2d 54, 61 (Pa.

Super. 1988).

       Here, defendant did not specify in his pro se petition, Amended Petition, his Brief in

Support of Amended Petition, or anywhere else, what the terms were of the offer that

allegedly had never been conveyed.        However, in its Letter Brief in response to defendant's

Amended Petition, the Commonwealth attached their Major Trials Unit Case Identification

Sheet, which included the plea offer that was to be extended to defendant on August 28, 2008.

That offer was for a sentence of six to twenty years incarceration in exchange for a plea of

guilty to charges of aggravated assault, possession of a firearm by a prohibited person,

possessing an instrument of crime, and resisting arrest. Instead, defendant elected to proceed

to trial and was acquitted   of aggravated assault and resisting arrest. He was convicted of

carrying a firearm without a license, carrying a firearm by a prohibited person, and of carrying

a firearm on the streets of Philadelphia, for which he received a sentence of five to ten years

imprisonment, far less than the Commonwealth's pretrial offer. Therefore, trial counsel's

alleged failure to advise defendant of this plea offer could not have prejudiced defendant

given the favorable outcome of the trial.




                                                  6
                                   III. CONCLUSION

       For the foregoing reasons, the Court's order dismissing defendant's PCRA Petition

should be affirmed.



                                                  BY THE COURT:




                                                  GLENN B. BRONSON, J.




                                             7
