J-S09030-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    NICHOLAS TEJADA                            :
                                               :
                       Appellant               :   No. 1207 EDA 2019

              Appeal from the PCRA Order Entered March 29, 2019
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                        No(s): CP-51-CR-0006216-2012,
                            CP-51-CR-0006219-2012

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    NICHOLAS TEJADA                            :
                                               :
                       Appellant               :   No. 1210 EDA 2019

              Appeal from the PCRA Order Entered March 29, 2019
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                        No(s): CP-51-CR-0006216-2012,
                            CP-51-CR-0006219-2012


BEFORE:      SHOGAN, J., LAZARUS, J., and COLINS, J.*

MEMORANDUM BY LAZARUS, J.:                          April 1, 2020




____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
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       Nicholas Tejada appeals, pro se, from the trial court’s order1 dismissing,

without a hearing, his petition filed pursuant to the Post Conviction Relief Act

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

       Tejada and two co-conspirators committed multiple gunpoint robberies

on the evening of January 2, 2012. The trial court summarized the relevant

facts as follows:

       On January 2, 2012[,] the first victim, Emily Orton, arrived home
       from work at about 10:15 pm. (N.T. [Trial,] 11/7/2012[,] at 25-
       26). She parked her car near the intersection of 9th and Kimball
       Streets in Philadelphia. (Id.) While walking on the sidewalk, she
       noticed [Tejada] and another male about ten feet away from her.
       (Id. at 26-28). They were walking directly toward her. (Id.)
       [Tejada]’s co[-]conspirator smiled at her and looped around
       behind her while [Tejada], with his face partially covered, pressed
       a gun against this victim’s stomach and demanded “give me your
       purse, ma’am.” (Id. at 30-32). [Tejada] snatched the victim’s
       purse from her body and entered the backseat of an older black,
       beat-up Honda which made an incredibly loud noise as it drove
       away. (Id. at 33, 37). Inside the victim’s purse was her purple
       wallet with ID cards, credit cards, and $60 United States currency.
       (Id. at 37-38). The victim contacted the police and returned to
       her apartment. (Id. at 38).

       Twenty minutes later, the second and third victims, Irene
       Thurston and Stacie Evans, respectively, had parked their cars
       and greeted each other near the corner of 4th and Emily Streets.
       (Id. at 77-78). Both victims noticed an old beat-up Honda with a
       long white scratch and a loud muffler. (Id.) With four Hispanic
       men inside, this vehicle passed them while travelling on Emily
       Street. (Id.) As the two victims continued to chat, the car turned
       around the block. (Id.) Alarmed, Ms. Thurston noticed two men
____________________________________________


1 On November 12, 2019, this Court issued an order sua sponte consolidating
the two appeals. See Pa.R.A.P. 513. The order also indicated that the appeals
were consolidated “without prejudice for the merits panel to quash one or both
of the appeals upon review.” Order, 11/12/19.


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     walking across an empty lot toward her and Ms. Evans. (Id. at
     81-82). Terrified, Ms. Thurston observed [Tejada], armed with a
     gun, run toward Ms. Evans. (Id. at 83). Also terrified that
     [Tejada] was brandishing a gun, Ms. Evans quickly dropped her
     purse. (N.T. [Trial,] 11/8/12[,] at 13). [Tejada] grabbed the
     purse. (Id.) Inside Ms. Evan’s [sic] purse was her license, credit
     cards, two checkbooks, a necklace, a digital camera, and $5-10 in
     United States currency. (Id. at 20). Nothing was taken from Ms.
     Thurston. (N.T. [Trial,] 11/7/12[,] at 86). The two victims
     immediately called the police. (N.T. [Trial,] 11/8/12[,] at 20).

     In response to the flash information and radio calls for the above
     incidents, Officer[] [Gerson] Padilla and [Officer Ann] Brown drove
     to the area of 2200 S. Mildred St. (Id. at 95). The officers
     witnessed [Tejada] exiting the driver seat of the above-mentioned
     Honda, while the coconspirator exited the passenger seat. (Id. at
     96). Officer Padilla stopped [Tejada] while Officer Brown chased
     the co-conspirator on a foot; the coconspirator was eventually
     apprehended. (Id. at 97-98). The officers recovered victim
     Evans[’] license on the ground next to the front passenger door of
     the Honda as well as two pocketbooks in the backseat. (Id. at 99-
     100).

     The officers escorted all three victims to the area of 2200 S.
     Mildred Street, at which time they all identified the black Honda
     as the car they had seen at their respective robbery locations.
     (Id. at 23, N.T. [Trial,] 11/7/2012[,] at 39-42, 87-91). Ms. Orton
     did not identify [Tejada], but her belongings were all recovered in
     the back of the black Honda. (N.T. [Trial,] 11/7/2012[,] at 39-42).
     Ms. Evans[’] purse, along with most of her belongings, was [sic]
     recovered in the back seat of the car. (N.T. [Trial,] 11/8/2012[,]
     at 23). Ms. Thurston identified [Tejada] as the perpetrator
     brandishing the firearm at 4th and Emily Streets. (N.T. [Trial,]
     11/7/2012[,] at 87-91). Officer Padilla discovered that the owner
     of the Honda resided at 2241 Darien Street, and that other men
     might have run into the house. (N.T. [Trial,] 11/8/2012[,] at
     101). While the officer was standing outside the house, the co-
     conspirator opened the door and asked what was going on. He
     allowed Officer Padilla to enter the house to look for other
     suspects. (Id. at 105). Officer Padilla and her supervisor searched
     the house and discovered Ms. Evan’s [sic] checkbooks in an
     upstairs bedroom. (Id.)

Trial Court Opinion, 12/26/13, at 3-5.


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      On November 14, 2012, a jury convicted Tejada of two counts of

conspiracy to commit robbery, but acquitted him of two counts each of

robbery, carrying a firearm without a license, carrying a firearm on public

streets of Philadelphia, and possessing an instrument of crime (PIC).         On

March 25, 2013, the court sentenced Tejada to two consecutive terms of four

to eight years’ imprisonment, for an aggregate sentence of eight to sixteen

years in prison. Tejada filed timely post-trial motions that were denied on

July 29, 2013. On August 7, 2013, Tejada filed a direct appeal; our Court

affirmed his judgment of sentence on October 31, 2014. Commonwealth v.

Tejada, No. 2279 EDA 2013 (Pa. Super. filed Oct. 31, 2014) (memorandum

decision) (withdrawn). On December 5, 2014, we granted Tejada’s motion

for reconsideration to clarify the holdings in Commonwealth v. Egan, 679

A.2d 237 (Pa. Super. 1996) and Commonwealth v. Clinton, 683 A.2d 1236

(Pa. Super. 1996).     On reconsideration, our Court determined that the

holdings of those cases, which found that discretionary aspects of sentencing

claims raised for the first time in Pa.R.A.P. 1925(b) concise statement of errors

complained of on appeal can be preserved, were overruled by implication in

Commonwealth v. Melendez-Rodriguez, 856 A.2d 1278 (Pa. Super. 2004)

(en banc). Accordingly, our Court affirmed Tejada’s judgment of sentence.

Commonwealth v. Tejada, 107 A.3d 788 (Pa. Super. 2015).

      On December 23, 2015, Tejada filed a timely pro se PCRA petition

raising a myriad of ineffectiveness of counsel claims. On October 27, 2017,

PCRA counsel filed a motion to withdraw pursuant to Commonwealth v.

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Finley, 550 A.2d 213 (Pa. Super. 1988), and was permitted to withdraw. New

PCRA counsel was appointed and filed an amended petition on February 15,

2018. On January 25, 2019, the trial court filed its Pa.R.Crim.P. 907 notice of

intent to dismiss Tejada’s petition without a hearing. On March 12, 2019,

Tejada filed a pro se response to the court’s Rule 907 notice. On March 29,

2019, the trial court dismissed Tejada’s PCRA petition and counsel was

permitted to withdraw on appeal. Tejada filed a timely pro se notice of appeal

and court-ordered Rule 1925(b) statement of errors complained of on appeal.

      On appeal, Tejada raises the following issues for our consideration:

      (1)   Did the trial court render ineffective assistance when
            counsel refuse[d] to call alibi witness (Eliana Gonzalez) to
            the stand during trial, to testify on appellant’s behalf, and
            on appellant’s whereabouts at the time that the crime was
            being committed?

      (2)   Did trial counsel render ineffective assistance when counsel
            refuse[d] to conduct an investigation, interview the owner
            of (Rodriguez Grocery Store), and obtain the surveillance
            footage that would have demonstrated appellant’s
            whereabouts at the time that the crime was being
            committed?

      (3)   Did trial counsel render ineffective assistance when counsel
            refuse[d] to inform and make appellant aware that he was
            waiving his fundamental right to present witnesses for his
            own defense, by not conducting a colloquy?

      (4)   Did trial counsel render ineffective assistance when counsel
            refuse[d] to preserve appellant’s discretionary aspects of
            the sentence [claim] imposed by the trial court on appellant,
            during the sentencing phase, and post-trial motions?

      (5)   Did appellate counsel render ineffective assistance when
            counsel refuse[d] to challenge the legality of appell[ant’s]
            sentence on appeal?



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J-S09030-20


       (6)    Did the PCRA court err when it filed its [Rule] 907 notice of
              intent to dismiss, using the “check box” form, without
              stating the reasons for its intent to dismiss?

       (7)    Did the PCRA [court] err[] when it dismissed appellant’s
              PCRA petition without conducting an evidentiary hearing
              where appellant raised material issues of fact?

Appellant’s Brief at 2-3.2
____________________________________________


2 The March 29, 2019 order denying Tejada’s PCRA petition lists the two docket
numbers of the underlying trial court cases. On April 18, 2019, Tejada filed a
single pro se notice of appeal from that order, which also lists the two separate
docket numbers. In Commonwealth v. Williams, 206 A.3d 573 (Pa. Super.
2019), this Court recently explained:

       Pennsylvania Rule of Appellate Procedure 341(a) directs that “an
       appeal may be taken as of right from any final order of a
       government unit or trial court.” Pa.R.A.P. 341(a). “The Official
       Note to Rule 341 was amended in 2013 to provide clarification
       regarding     proper    compliance    with   Rule     341(a)[.]”
       Commonwealth v. Walker, 185 A.3d 969, 976 (Pa. 2018). The
       Official Note now reads:

          Where . . . one or more orders resolves issues arising on
          more than one docket or relating to more than one
          judgment, separate notices of appeals must be filed.
          Commonwealth v. C.M.K., [] 932 A.2d 111, 113 & n.3 (Pa.
          Super. 2007) (quashing appeal taken by single notice of
          appeal from order on remand for consideration under
          Pa.R.Crim.P. 607 of two [defendants]’ judgments of
          sentence).

       Pa.R.A.P. 341, Official Note.

Id. at 575.
       In Walker, our Supreme Court found the above-language constituted
“a bright-line mandatory instruction to practitioners to file separate notices of
appeal.” Walker, 185 A.3d at 976-77. Accordingly, the Walker Court held
that “the proper practice under Rule 341(a) is to file separate appeals from an
order that resolves issues arising on more than one docket. The failure to do
so requires the appellate court to quash the appeal.” Id. at 977 (emphasis
added). However, the Court made its holding prospective, recognizing that



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       In Commonwealth v. Paddy, 15 A.3d 431 (Pa. 2011), our Supreme

Court set forth the following test for ineffectiveness claims:

       To prevail in a claim of ineffective assistance of counsel, a
       petitioner must overcome the presumption that counsel is
       effective by establishing all of the following three elements[:] (1)
       the underlying legal claim has arguable merit; (2) counsel had no
       reasonable basis for his or her action or inaction; and (3) the
       petitioner suffered prejudice because of counsel’s ineffectiveness.
       With regard to the second, reasonable basis prong, “we do not
____________________________________________


“[t]he amendment to the Official Note to Rule 341 was contrary to decades of
case law from this Court and the intermediate appellate courts that, while
disapproving of the practice of failing to file multiple appeals, seldom quashed
appeals as a result.” Id. Accordingly, the Walker Court directed that “in
future cases Rule 341 will, in accordance with its Official Note, require that
when a single order resolves issues arising on more than one lower court
docket, separate notices of appeal must be filed. The failure to do so will
result in quashal of the appeal.” Id. (emphasis added).
       In Commonwealth v. Stansbury, 219 A.3d 157 (Pa. Super. 2019),
our Court declined to quash an appeal where a defendant filed one notice of
appeal listing two docket numbers. Id. at 158. In that case, the trial court
advised a pro se defendant to file “a written notice of appeal to the Superior
Court” from a single trial court order listing multiple docket numbers under
one caption. Id. at 159. (emphasis in original). Our Court concluded that
the defendant had been misinformed by the trial court, which amounted to a
“breakdown in the court system” and excused the defendant’s lack of
compliance with Walker. Id. at 160.
       The facts of this case are identical to those of Stansbury. Specifically,
we have a pro se defendant who filed a single notice of appeal, listing two trial
court docket numbers, after the Walker decision was rendered. Moreover,
like the pro se defendant in Stansbury, Tejada was advised by the trial court
that he had “thirty (30) days from this day, to file a written notice of appeal
to the Superior Court.” Order, 3/29/19 (emphasis added). Accordingly, we
find that Tejada was misinformed by the trial court regarding the manner in
which to file his notices of appeal, which amounted to a breakdown in the
court system and excuses his non-compliance with Walker. Thus, we will
address the merits of the instant collateral appeal and deny as moot Tejada’s
pro se “Motion to Proceed with Appellate Procedures.”




                                           -7-
J-S09030-20


       question whether there were other more logical courses of action
       which counsel could have pursued; rather, we must examine
       whether counsel’s decisions had any reasonable basis.” We will
       conclude that counsel’s chosen strategy lacked a reasonable basis
       only if Appellant proves that “an alternative not chosen offered a
       potential for success substantially greater than the course actually
       pursued.” To establish the third, prejudice prong, the petitioner
       must show that there is a reasonable probability that the outcome
       of the proceedings would have been different but for counsel’s
       ineffectiveness. We stress that boilerplate allegations and bald
       assertions of no reasonable basis and/or ensuing prejudice cannot
       satisfy a petitioner’s burden to prove that counsel was ineffective.

Id. at 442-43 (internal citations omitted).

       In his first two issues, Tejada contends that counsel was ineffective for

failing to call potential alibi witnesses.         Specifically, he claims that Eliana

Gonzalez’s testimony would have “proven that [Tejada] was not a participant

of the robbery, nor was [he] anywhere near the scene of the crime” and

“[t]here is [a] reasonable probability that the calling of [the witness] would

have led to a complete acquittal of all charges.” Appellant’s Brief, at 8. Tejada

also   asserts   that    the   owner    of     Rodriguez’s Grocery Store, a      local

establishment, would have testified that Tejada was patronizing the grocery

store at the time that the crime was being committed.3

____________________________________________


3 In Commonwealth v. Polk, 500 A.2d 825 (Pa. Super. 1985), this Court set
forth the standard for determining the ineffectiveness of counsel for failure to
call or investigate witnesses.    In order to prevail, the appellant must
demonstrate: (1) the identity and existence of the witnesses; (2) that counsel
knew of the witnesses; (3) the material evidence that the witnesses would
have provided; and (4) the manner in which the witnesses would have been
helpful to appellant’s case. Id. at 829. See also Commonwealth v.
Gillespie, 620 A.2d 1143 (Pa. Super. 1993).



                                             -8-
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       At trial, counsel told the court that he had filed a notice of an alibi

defense, but after talking to Tejada about the defense, counsel made a tactical

decision not to call the witnesses. N.T. Trial, 11/13/12, at 10-11. Tejada told

the court that he understood counsel’s decision not to call the alibi witnesses

and that he did not object to it. Id. at 11 (“I have also explained to him that

this is a tactical decision . . . and I explained it to [Tejada] as to the reasons

why I’m not going to utilize either one of those alibi witnesses.”); id. (trial

judge asks Tejada if he “indicated that he understands that and he has no

objection to it” and Tejada replies, “Yes.”). Based on this record evidence, we

conclude that Tejada has waived any objection to counsel’s failure to call alibi

witnesses, where he discussed with counsel the reason why he did not believe

he should call them at trial and where he agreed with that decision. See 42

Pa.C.S. § 9543(a)(4) (to be eligible for PCRA relief, petitioner must plead and

prove that “failure to litigate the issue prior to or during trial, during unitary

review or on direct appeal could not have been the result of any rational,

strategic or tactical decision by counsel.”) (emphasis added).4



____________________________________________


4 In his third issue on appeal, Tejada asserts that counsel was ineffective for
not making him aware that he was waiving his fundamental right to present
witnesses for his own defense, by not conducting a colloquy. Our disposition
of issues one and two resolves this claim, where we concluded that the court
held a colloquy with Tejada where he expressed that he understood and
agreed with counsel’s decision to not call witnesses on his behalf.
Commonwealth v. Paddy, 800 A.2d 294, 316 (Pa. 2002) (“[A] defendant
who makes a knowing, voluntary, and intelligent decision concerning trial



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       In his next issue on appeal, Tejada contends that counsel was ineffective

for failing to object to the application of the deadly weapon enhancement at

sentencing.5     Specifically, Tejada asserts that the Commonwealth failed to

prove, beyond a reasonable doubt, that “he was the armed offender or that

he was in the company of the armed offender who was in possession of the

weapon at any time that the crime was taking place.” Appellant’s Brief, at 38.


____________________________________________


strategy will not later be heard to complain that trial counsel was ineffective
on the basis of that decision.”).
5 This claim implicates the discretionary aspect of Tejada’s sentence. See
Commonwealth v. Kneller, 999 A.2d 608, 613 (Pa. Super. 2010) (en banc)
(“[A] challenge to the application of the deadly weapon enhancement
implicates the discretionary aspects of sentencing.”). When an appellant
challenges the discretionary aspects of his sentence, we must consider his
brief on this issue as a petition for permission to appeal. Commonwealth v.
Yanoff, 690 A.2d 260, 267 (Pa. Super. 1997). Prior to reaching the merits of
a discretionary sentencing issue:

       [this Court conducts] a four[-]part analysis to determine: (1)
       whether [A]ppellant has filed a timely notice of appeal, see
       Pa.R.A.P. 902 and 903; (2) whether the issue was properly
       preserved at sentencing or in a motion to reconsider and modify
       sentence, see Pa.R.Crim.P. [720]; (3) whether [A]ppellant’s brief
       has a fatal defect, Pa.R.A.P. 2119(f); and (4) whether there is a
       substantial question that the sentence appealed from is not
       appropriate under the Sentencing Code, 42 Pa.C.S.A. § 9781(b).

Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010) (citation
omitted). Here, Tejada has filed a timely notice of appeal. However, he has
omitted a Rule 2119(f) statement in his brief. Because the Commonwealth
does not object to its omission, we can overlook this misstep. Finally, we find
that he has presented a substantial question. See Commonwealth v.
Rhoades, 8 A.3d 912 (Pa. Super. 2010) (claim that DWE improperly applied
raises substantial question). Thus, we can review the merits of his claim.



                                          - 10 -
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      Despite the fact that the jury acquitted Tejada of any VUFA offenses,

that does not preclude the fact that the judge could have concluded that, more

likely than not, the gun was in his “immediate physical control.”         See

Commonwealth v. Stokes, 38 A.3d 846 (Pa. 2011) (although defendant was

found not guilty of PIC and two different firearm violations in connection with

shooting victim, court properly applied DWE to sentence). In fact, the court

noted that it found, by a preponderance of the evidence, that the gun used in

the robberies was in Tejada’s “immediate physical control.” N.T. Sentencing,

3/25/13, at 54. Thus, the DWE does apply to his sentence. In addition, the

record confirms that there were no mandatory minimum sentences imposed

in Tejada’s case. While a DWE did apply to increase the applicable sentencing

guideline ranges for Tejada’s offenses, the DWE did not mandate a minimum

term of incarceration that the court was required to apply.

      In his next issue, Tejada contends that counsel was ineffective for not

preserving his discretionary aspects of sentencing issue regarding the

inapplicability of the DWE to his sentence. Having already determined that

DWE was properly applied to Tejada’s sentence where the court found that

the gun used to commit the robberies was in Tejada’s immediate physical

control, this issue is moot. Commonwealth v. Jones, 951 A.2d 294 (Pa.

2008) (to establish ineffectiveness, petitioner must establish underlying claim

is of arguable merit).

      Tejada next complains that the court gave him insufficient notice of its

intent to dismiss his petition without a hearing pursuant to Rule 907.

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Specifically, he asserts that the court’s Rule 907 order, which included a box

“checked off” stating that within 30 days his petition would be dismissed

because “[t]he issues raised in the Post-Conviction Relief Act petition are

without merit,” violates Rule 907(1) and is inadequate.

        Rule 907 provides, in pertinent part:

           (1) the judge shall promptly review the petition, any answer
           by the attorney for the Commonwealth, and other matters
           of record relating to the defendant’s claim(s). If the judge
           is satisfied from this review that there are no genuine issues
           concerning any material fact and that the defendant is not
           entitled to post-conviction collateral relief, and no purpose
           would be served by any further proceedings, the judge
           shall give notice to the parties of the intention to
           dismiss the petition and shall state in the notice the
           reasons for the dismissal. The defendant may respond to
           the proposed dismissal within 20 days of the date of the
           notice. The judge thereafter shall order the petition
           dismissed, grant leave to file an amended petition, or direct
           that the proceedings continue.

Pa.R.Crim.P. 907(1) (emphasis added).                “Rule 907 pre-dismissal notice

affords a petitioner the opportunity to seek leave to amend his petition and

correct any material defects. The ultimate goal of this process is to permit

merit    review   by   the   PCRA    court      of   potentially   arguable   claims.”

Commonwealth v. Weimer, 167 A.3d 78, 86 (Pa. Super. 2017) (citations

omitted).

        Instantly, the court’s Rule 907 notice form includes several possible

reasons which a PCRA court might dismiss a petition. Here, the PCRA judge

indicated it found Tejada’s issues meritless.              Cf. Commonwealth v.

Feigherty, 661 A.2d 437 (Pa. Super. 1995) (court failed to comply with rule


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regarding notice of intent to dismiss PCRA petition without hearing where

court never gave mandatory notice and where counsel’s Finley letter does not

suffice for such notice). Where Tejada: was given the opportunity to seek

leave to amend his petition; filed a detailed three-page response to the court’s

notice explaining why his petition should not be dismissed; has not proven

prejudice; and has failed to present any issues warranting an evidentiary

hearing, we do not find he is entitled to relief on appeal.    Commonwealth

v. Albrecht, 720 A.2d 693, 709-10 (Pa. 1998) (petitioner not entitled to relief

based on PCRA court’s failure to explain reasons supporting Rule 907 notice

where court provides petitioner opportunity to amend petition, grants

petitioner leave to submit pro se supplements, and accepts filings submitted

on petitioner’s behalf following issuance of Rule 907 notice).

      In his final issue on appeal, Tejada asserts that the court improperly

dismissed his petition without an evidentiary hearing where he “raised issues

of material fact.”   Appellant’s Brief, at 11.    Tejada’s claim relies on the

arguments he has presented in his “aforementioned issues.”           Id.   Having

determined that those issues are meritless, we find he was not entitled to an

evidentiary hearing on his petition. See Pa.R.Crim.P. 907(1) (“If the judge is

satisfied from . . . review that there are no genuine issues concerning any

material fact and that the defendant is not entitled to post-conviction collateral

relief, and no purpose would be served by any further proceedings, [after

giving notice of its intent to dismiss] the judge thereafter shall order the

petition dismissed[.]”).

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     Order affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/1/20




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