J-S56017-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                         Appellee

                    v.

WANDALY PEREZ-HOOD,

                         Appellant                    No. 139 MDA 2016


           Appeal from the PCRA Order Entered January 7, 2015
           In the Court of Common Pleas of Lackawanna County
           Criminal Division, at No(s): CP-35-CR-0001695-2006


BEFORE: BENDER, P.J.E., PANELLA, J., and STEVENS, P.J.E.*

MEMORANDUM BY PANELLA, J.                           FILED AUGUST 19, 2016

      Wandaly Perez-Hood (“Appellant”) appeals pro se from the order

denying, without a hearing, her first petition for post-conviction relief filed

pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-

9546. We affirm.

      On August 20, 2010, a jury convicted Appellant of first-degree murder,

stemming from her killing her three and one-half year old stepson. Three

days later, the trial court imposed a life sentence. Following the denial of her

post-sentence motion, Appellant filed a timely appeal to this Court. In an

unpublished memorandum filed on February 23, 2013, we affirmed

Appellant’s judgment of sentence, and on August 21, 2012, our Supreme

Court denied her petition for allowance of appeal. See Commonwealth v.


*Former Justice specially assigned to the Superior Court.
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Perez-Hood, 46 A.3d 876 (Pa. Super. 2012), appeal denied, 50 A.3d 125

(Pa. 2012).

       Appellant filed a timely pro se PCRA petition, as well as an amended

petition. The PCRA court appointed counsel. Appointed counsel later filed a

“no-merit” letter and petition to withdraw pursuant to Commonwealth v.

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

A.2d 213 (Pa. Super. 1988) (en banc). The PCRA court granted PCRA

counsel’s petition to withdraw. The PCRA court also issued notice of its intent

to dismiss Appellant’s petition without a hearing. Appellant did not file a

response. Instead, Appellant filed a premature appeal to this Court, which

was perfected once the PCRA court entered its order denying Appellant’s

PCRA petition.1 See Pa.R.A.P. 905(a)(5) (providing that a notice of appeal

filed after the issuance of a Pa.R.A.P. 907 notice but before the entry of an

appealable order shall be treated as filed after such entry). This timely

appeal follows. Both Appellant and the PCRA court have complied with

Pa.R.A.P. 1925.2

       Appellant raises the following issues in her pro se brief:
____________________________________________


1
  The Commonwealth filed a notice to quash the appeal based on the
premature filing of the notice of appeal. We deny this motion.
2
  In a March 30, 2016 letter to this Court, the PCRA court states that it
adopts PCRA counsel’s Turner/Finley letter for Pa.R.A.P. 1925(a) purposes.
We do not condone this practice. See Commonwealth v. Glover, 738 A.2d
460, 461 (Pa. Super. 1999). Nevertheless, in this instance, we decline to
remand for the preparation of a Rule 1925(a) opinion.



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      I[.] Whether the [Commonwealth] failed to meet its burden of
      proof, and whether the [Commonwealth] medical doctors whose
      testimony was erroneous, deceptive, prejudicial and contributed
      to a miscarriage of justice?

      II[.] Whether all counsel were constitutionally ineffective?

Appellant’s Brief at i (excess capitalization omitted).

      This Court’s standard of review regarding an order dismissing a

petition under the PCRA is whether the determination of the PCRA court is

supported by the evidence of record and is free of legal error. See

Commonwealth v. Halley, 870 A.2d 795, 799 n.2 (Pa. 2005). The PCRA

court’s findings will not be disturbed unless there is no support for the

findings in the certified record. See Commonwealth v. Carr, 768 A.2d

1164, 1166 (Pa. Super. 2001). Moreover, a PCRA court may decline to hold

a hearing on the petition if the PCRA court determines that petitioner’s claim

is patently frivolous and is without a trace of support in either the record or

from other evidence. See Commonwealth v. Jordan, 772 A.2d 1011, 1104

(Pa. Super. 2001).

      To be eligible for post-conviction relief, a petitioner must plead and

prove by a preponderance of the evidence that his conviction or sentence

resulted from one or more of the enumerated errors or defects in 42

Pa.C.S.A. § 9543(a)(2), and that the issues she raises have not been,

among others, previously litigated. See Commonwealth v. Carpenter, 725

A.2d 154, 160 (Pa. 1999). An issue has been previously litigated if the

highest appellate court in which the petitioner could have had review as a

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matter of right has ruled on the merits of the issue. See id. See also 42

Pa.C.S.A. § 9544(a).

      Appellant attacks the sufficiency of the evidence the Commonwealth

presented to prove its case. We rejected such a challenge in affirming her

judgment of sentence on direct appeal. See Perez-Hood, supra. Thus, a

challenge to the sufficiency of the evidence supporting her murder conviction

has been previously litigated.

      In addressing Appellant’s second claim that all prior counsel were

constitutionally ineffective, we apply the following principles. Counsel is

presumed to be effective, and Appellant has the burden of proving

otherwise. See Commonwealth v. Pond, 846 A.2d 699, 708 (Pa. Super.

2004).

            In order for Appellant to prevail on a claim of ineffective
      assistance of counsel, he must show, by a preponderance of the
      evidence, ineffective assistance of counsel which, in the
      circumstances of the particular case, so undermined the truth-
      determining process that no reliable adjudication of guilt or
      innocence could have taken place. Commonwealth v. Kimball,
      555 Pa. 299, 724 A.2d 326, 333 (1999). Appellant must
      demonstrate: (1) the underlying claim is of arguable merit; (2)
      that counsel had no reasonable strategic basis for his or her
      action or inaction; and (3) but for the errors and omissions of
      counsel, there is a reasonable probability that the outcome of
      the proceedings would have been different. Id. The petitioner
      bears the burden of proving all three prongs of the test.
      Commonwealth v. Meadows, 567 Pa. 344, 787 A.2d 312,
      319-20 (2001).

Commonwealth v. Johnson, 868 A.2d 1278, 1281 (Pa. Super. 2005). In

assessing a claim of ineffectiveness, when it is clear that appellant has failed


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to meet the prejudice prong, the court may dispose of the claim on that

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

been met. See Commonwealth v. Travaglia, 661 A.2d 352, 357 (Pa.

1995). Counsel cannot be deemed ineffective for failing to pursue a

meritless claim. See Commonwealth v. Loner, 836 A.2d 125, 132 (Pa.

Super. 2003) (en banc).

      A PCRA petitioner claiming he or she received the ineffective

assistance of counsel must allege sufficient facts from which a court can

determine     counsel’s   effectiveness.   See   Pa.R.Crim.P.    902(A)(12);

Commonwealth v. Pettus, 424 A.2d 1332 (Pa. 1981) (stating that a

defendant may not argue ineffectiveness in vacuum).

      Here, Appellant asserts—without further discussion—that “[t]rial and

appellate counsel were (layered) ineffective as there was no rational trial

strategy to not challenge the incompetent testimony of the government’s

witnesses awing the jury with big medical terms to overwhelm the obvious

inability of the witnesses to form a reliable opinion to a medical certainty

based on the scientific bases of the medical profession.” Appellant’s Brief at

9.

      Ineffectiveness claims are not self-proving. Because Appellant does

not develop her ineffectiveness claims, we need not discuss them further.

To the extent we read Appellant’s claim to be that prior counsel was

ineffective for failing to object to and/or preserve on appeal her allegations


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regarding the testimony from the Commonwealth’s experts and their

conclusions, we note that the mere fact that Appellant now poses new

theories to attack the sufficiency of the evidence supporting her murder

conviction do not entitle her to relief. See Commonwealth v. Wharton,

811 A.2d 978, 984 (Pa. 2002) (explaining that a PCRA petitioner cannot

obtain additional review of previously litigated claims by presenting new

theories of relief including allegations of ineffectiveness). Moreover, our

review of the record establishes that these claims lack arguable merit. A

review of the record demonstrates that trial counsel not only challenged the

Commonwealth’s experts through effective cross-examination, but also

called a defense expert who disagreed with their conclusions as to when the

fatal injuries were inflicted on the victim. Thus, Appellant’s ineffectiveness

claims fail.

      Order affirmed. Motion to quash appeal denied.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/19/2016




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