J-S85033-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                  :       IN THE SUPERIOR COURT OF
                                              :             PENNSYLVANIA
              v.                              :
                                              :
KENNETH A. CHARLES,                           :
                                              :
                    Appellant                 :            No. 3687 EDA 2015

                 Appeal from the PCRA Order November 23, 2015
              in the Court of Common Pleas of Philadelphia County,
                Criminal Division, No(s): CP-51-CR-0014400-2007

BEFORE: PANELLA, RANSOM and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                         FILED FEBRUARY 13, 2017

        Kenneth A. Charles (“Charles”) appeals from the Order dismissing his

first Petition filed pursuant to the Post Conviction Relief Act (“PCRA”).1 We

affirm.

        In its Opinion, the PCRA court set forth the relevant factual and

procedural history, which we adopt for the purpose of this appeal.               See

PCRA Court Opinion, 1/15/16, at 1-3.

        On appeal, Charles raises the following issues for our review:

        1. Whether trial and appellate counsel[2] were ineffective for
           failing to file post[-]sentence motions in this matter[,]
           depriving [Charles] of his post-sentence rights?

        2. Whether [Charles] also asserts that trial counsel was
           ineffective for failing to request a jury instruction that the lack
           of fingerprint evidence supported a finding that [Charles] did
           not commit a burglary inside the house?

1
    See 42 Pa.C.S.A. §§ 9541-9546.

2
    Charles was represented by the same attorney at trial and on direct appeal.
J-S85033-16



Brief for Appellant at 5 (footnote added).

            We review an order dismissing a petition under the PCRA
      in the light most favorable to the prevailing party at the PCRA
      level. This review is limited to the findings of the PCRA court
      and the evidence of record. We will not disturb a PCRA court’s
      ruling if it is supported by evidence of record and is free of legal
      error. This Court may affirm a PCRA court’s decision on any
      grounds if the record supports it. We 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. Further, where
      the petitioner raises questions of law, our standard of review is
      de novo and our scope of review is plenary.

Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa. Super. 2012) (citations

omitted).

      In his first issue, Charles contends that trial and appellate counsel

were ineffective for failing to file post-sentence motions challenging (1) the

verdict as against the weight of the evidence (on the basis that Charles

lacked the intent to commit burglary because he entered the house upon

invitation); and (2) his sentence as excessive. Brief for Appellant at 10-11.

Charles asserts that, “with respect to sentencing and weight of the evidence

issues on appeal, post[-]sentence motions are a statutory artifice. No other

issues on appeal require that the [a]ppellant prove merit - if the [a]ppellant

can demonstrate that he asked for an appeal in a timely fashion, it will be

restored as a matter of law.” Id. at 11-12. Charles nevertheless states that

“if the [a]ppellant fails to file post[-]sentence motions with regard to weight

of the evidence and sentencing before appeal, even if he cannot prove that



                                  -2-
J-S85033-16


he would prevail in the lower court, it will be deemed waived by the

appellate courts.” Id. at 12. On this basis, Charles argues that the PCRA

court erred by dismissing his Petition. Id.

      In its Opinion, the PCRA court addressed Charles’s first issue, set forth

the relevant law, and determined that the issue lacks merit.           See PCRA

Court Opinion, 1/15/16, at 3-8.     We agree with the determination of the

PCRA court, which is supported by the evidence of record and free of legal

error, and affirm on this basis as to Charles’s first issue. See id.

      In his second issue, Charles contends that trial counsel was ineffective

for failing to request a jury instruction that the lack of fingerprint evidence

supported a finding that he did not commit a burglary inside the house.

Brief for Appellant at 13. Charles asserts that “there were no fingerprints

recovered from the location[,] or any of the items in the house ….” Id. at

14. On this basis, Charles claims that a jury instruction was warranted. Id.

      In its Opinion, the PCRA court addressed Charles’s second issue, set

forth the relevant law, and determined that the issue lacks merit. See PCRA

Court Opinion, 1/15/16, at 9-10.     We agree with the determination of the

PCRA court, which is supported by the evidence of record and free of legal

error, and affirm on this basis as to Charles’s second issue. See id.

      Order affirmed.




                                  -3-
J-S85033-16




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 2/13/2017




                          -4-
                                                                                             Circulated
                                                                 Received 6/14/2016 6:06:51 AM Superior 01/18/2017 04:29
                                                                                                        Court Eastern    PM
                                                                                                                      District


                                                                      Filed 6/14/2016 6:06:00 AM Superior Court Eastern District
                                                                                                               3687 EDA 2015


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

            COMMONWEALTH OF                                                          CP-51-CR-OO 14400-2007
            PENNSYLVANIA

                     v.
                                                 IIII III7394244131
                                                          Ill/II I Ill Ill I I Ill
                                                                                                         FILED
            KENNETH CHARLES                                                                         JAN 1 5 2011;
                                                         OPINION                                   Post Trial Unit
            BRONSON,J.                                                               January 15, 2016

                                             I. PROCEDURALBACKGROUND

            On July 2, 2008, following a jury trial before this Court, defendant Kenneth Charles was

convicted of burglary (18 Pa.C.S. § 3502(a)). N.T. 07/02/08 at 4-5.1 On August 12, 2008, the

Court imposed a sentence of ten to twenty years incarceration. N.T. 08/12/08 at 10. Defendant

was represented at trial, sentencing, and on appeal by the Defender's Association of

Philadelphia.

            On December 30, 2009, the Superior Court affirmed defendant's judgment of sentence.

The Pennsylvania Supreme Court denied allocator on July 14, 2010. Defendant then filed a pro

se petition under the Post-Conviction Relief Act ("PCRA") on September 10, 2010. Emily

Cherniack, Esquire was appointed to represent defendant on July 16, 2012. On July 27, 2014,

Ms. Cherniack filed an Amended PCRA Petition ("Amended Petition") raising claims that trial

counsel was ineffective for: 1) failing to file a post-sentence motion challenging the weight of

the evidence; 2) failing to file a post-sentence motion challenging the excessiveness of the

Court's sentence; and 3) failing to request a jury instruction regarding the lack of fingerprint

evidence. Amended Petition at ,r,r 8, 11-13. On October 6, 2015, after reviewing defendant's


1
    A prior trial had resulted in a hung jury.
PCRA Petition and the Commonwealth's Motion to Dismiss, this Court ruled that the claims set

forth in defendant's petition were without merit. On that day, pursuant to Pa.R.Crim.P.                  907, the

Court issued notice of its intent to dismiss the petition without a hearing ("907 Notice"). On

November 23, 2015, the Court entered an order dismissing defendant's PCRA Petition. This

appeal followed.

            Defendant has now appealed the Court's dismissal of his PCRA Petition, alleging that:

1) trial and appellate counsel were ineffective for failing to file post sentence motions; and 2)

trial counsel was ineffective for failing to request a jury instruction regarding the lack of

fingerprint evidence. Statement of Matters Complained of on Appeal ("Statement of Errors") at

,r,r 1-2.   For the reasons set forth below, defendant's claims are without merit, and the PCRA

Court's order dismissing his PCRA Petition should be affirmed.

                                      II. FACTIJAL BACKGROUND

            The factual background of this matter is set forth in this Court's 1925(a) opinion filed in

defendant's direct appeal as follows:

                    At trial, the Commonwealth presented the following witnesses: Gregory
            Staton, Barron Draper, Flora Lee Adams, Flora Belle Adams, Marie Gethers,
            Michael Gethers, Philadelphia Police Officers Daniel Villafane and Jacqueline
            Orth, and Detective John Ellis. Viewed in the light most favorable to the
            Commonwealth, the testimony of these witnesses established the following.

                     On July 3, 2007, Flora Lee Adams lived at 723 West Roosevelt Boulevard
            in Philadelphia with her daughters Marie Gethers and Flora Belle Adams. N.T.
            07/01/2008 at 9, 51, 62-63. When she left for work that day at 6:00 a.m., Flora
            Lee Adams did her customary check that all of the doors to her home were secure.
            N. T. 07/01/2008 at 21. When Ms. Gethers and Flora Belle Adams left for work
            separately between 7:00 a.m. and 8:00 a.m., each secured the locks on each of the
            two front doors. N.T. 07/01/2008 at 53-54, 58, 64-66, 88. Only Flora Lee
            Adams, Flora Belle Adams, Ms. Gethers, and Ms. Gethers' husband, who did not
            live in the home, had a key to the front doors. N.T. 07/01/2008 at 42, 52-53, 57,
                                 2
            63, 86-87, 111-112. Flora Lee Adams alone had keys to the other doors of the
            house. N.T. 07/01/2008 at 17-18, 23, 25-26, 42. None of these individuals gave

2
  While Flora Lee Adams and Ms. Gethers testified that Mr. Gethers did not have a key at that time, Mr. Gethers
testified that he did. N.T. 07/01/2008 at 42, 87, 111.


                                                        2
       anyone permission to enter the house while they were working during the day.
       N.T. 07/01/2008 at 27, 54, 68, 112.

               Around 5 :00 p.m., Ms. Gethers returned from work, unlocked the front
       doors, and then relocked them once she was inside. N.T. 07/01/2008 at 66, 69,
       97. Walking into the vestibule, Ms. Gethers saw defendant standing in the living
       room. N.T. 07/01/2008 at 67-68, 97. Frightened, Ms. Gethers unlocked the front
       doors and went onto the porch as defendant followed and tried to calm her. N.T.
       07/01/2008 at 69-70, 97-98. Defendant told Ms. Gethers that someone had let
       him in the house and had then gone to Checkers, but would return soon, and that
       he would wait with her for the police. N.T. 07/01/2008 at 71, 99-100. Ms.
       Gethers then called her husband and 911. N.T. 07/01/2008 at 71, 73.

               Mr. Draper, a neighbor, noticed defendant and Ms. Gethers on the porch
       as he arrived home from work and saw that Ms. Gethers appeared to be upset.
       N.T. 06/30/2008 at 70, 72-73, 89, 91. Mr. Draper walked over to the two and
       after speaking to Ms. Gethers, began to question defendant. N.T. 06/30/2008 at
       73-75, 89; 07/01/2008 at 71, 73-74, 100. Defendant repeated that he had been
       invited into the house by some friends who had left to get something to eat, but
       were to return. N.T. 06/30/2008 at 74, 76, 92-93. Defendant told Ms. Gethers
       and Mr. Draper his true name and gave Mr. Draper the true name and phone
       number of his employer. N.T. 06/30/2008 at 75-76, 92; 07/01/2008 at 103.
       After fifteen minutes had passed, neither the police nor defendant's friends had
       arrived. N.T. 06/30/2008 at 77, 91; 07/01/2008 at 75, 100, 103. Defendant
       announced that he had to leave, and then called Ms. Gethers' cell phone so that
       she would have his phone number before departing on foot. N.T. 06/30/2008 at
       77, 83; 07/01/2008 at 76-77, 102-103. After defendant left, Mr. Draper
       discovered that one of the basement windows of the home had been broken. N.T.
       06/30/2008 at 80-83, 95-103; 07/01/2008 at 77. When Mr. Draper and Ms.
       Gethers went inside, they discovered that a water jug holding spare change had
       been moved from the master bedroom and placed inside a shopping cart in the
       middle of the living room. N.T. 07/01/2008 at 77-78. The shopping cart had
       been moved from its usual place in the dining room, and the laundry which had
       been inside it had been dumped out onto the floor. N.T. 07/01/2008 at 20, 26-27,
       34-35.

Trial Court Opinion, filed March 12, 2009 at pp. 2-4.

                                       III. 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 oflegal error." Commonwealth v. Yager, 685 A.2d 1000, 1003 (Pa. Super. 1996)




                                                3
(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 claims pertain 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).

       A. Failure to File Post-Sentence Motions

       Defendant first claims that his "trial and appellate counsel were ineffective for failing to

file post sentence motions in this matter depriving the Defendant of his post-sentence rights."

Statement of Errors at ,i 1. In his Amended Petition, defendant claimed that he wanted to file a

post sentence motion challenging both the weight of the evidence and the excessiveness of his



                                                  4
sentence. Amended Petition at~~ 11-12.      This claim is without merit as defendant cannot

demonstrate that he requested counsel file such a motion or that he was prejudiced by counsel's

failure to do so.

        1.   Post-Sentence Motion Challenging the Weight of the Evidence

        In his Amended Petition, defendant alleged that he "wanted to file post sentence motions

[challenging the weight of the evidence] where defense was that he had entered the dwelling

after being invited by another individual and thus did not possess the intent necessary to commit

the crime of burglary."   Amended Petition at~ 11. Initially, defendant fails to establish that his

claim is of arguable merit as defendant never alleges that he requested either trial or appellate

counsel to file any post-sentence motion challenging the weight of the evidence in this matter.

Counsel cannot be ineffective for failing to file a post sentence motion that defendant never

requested.   Commonwealh v. Velasquez, 563 A.2d 1273, 1275 (Pa. Super. 1989).

        In addition, defendant cannot demonstrate that he was prejudiced by counsel's failure to

file a motion claiming that the verdicts were against the weight of the evidence. It is well-

established that a new trial may only be granted by the trial court where the verdict was so

contrary to the weight of the evidence as to "shock one's sense of justice." Commonwealth v.

Rossetti, 863 A.2d 1185, 1191 (Pa. Super. 2004), appeal denied, 878 A.2d 864 (Pa. 2005)

(quoting Commonwealth v. Hunter, 554 A.2d 550, 555) (Pa. Super. 1989)). Moreover,

credibility determinations are solely within the province of the fact-finder, and "an appellate

court may not reweigh the evidence and substitute its judgment for that of the finder of fact."

Commonwealth v. Taylor, 63 A.3d 327 (Pa. Super. 2013) (quoting Commonwealth v. Shaffer, 40

A.3d 1250, 1253 (Pa. Super. 2012)). In considering a claim that the trial court erred in refusing

to find that a verdict was against the weight of the evidence, "appellate review is limited to




                                                  5
whether the trial court palpably abused its discretion in ruling on the weight claim."                   Taylor, 63

A.3d at 327 (quoting Shaffer, 40 A.3d at 1253).

         Here, the evidence admitted at trial plainly established that defendant committed a

burglary when he entered the victim's home. Each resident of the home testified that they left

the home with the doors securely locked. N.T. 7/1/08 at 21, 53-54, 58, 64-66, 88. None of these

individuals gave anyone permission to enter the house while they were working during the day.

N.T. 7/1/08 at 27, 54, 68, 112. Marie Gethers testified that she returned home to find defendant

standing in the living room. N.T. 7/1/08 at 67-68, 97. While the jury heard defendant's assertion

that he was let into the home by some unknown individual, the jury also saw evidence that a

basement window of the home had been broken, that a water jug holding spare change had been

moved from the master bedroom and placed inside a shopping cart in the living room, that the

shopping cart had been moved from its usual place in the dining room, and that the laundry

inside the cart had been dumped onto the floor. N.T. 6/30/08 at 80-83, 95-103; 7/1/08 at 20, 26-

27, 34-35, 77-78.3 The Commonwealth further established defendant's intent and lack of

mistake through the introduction of a prior burglary, where defendant was discovered by police

hiding in a basement after prying open a rear door with a screwdriver. N.T. 5/30/08 at 9; 6/30/08

at 46-63. Therefore, there was compelling evidence to support the jury's conclusion that

defendant entered the home without permission with the intent to commit a theft. As a result, the

Court would have properly denied any post-sentence motion based on the weight of the

evidence.

         Accordingly, the record establishes that defendant's claim of counsel's ineffectiveness

for failing to file a post-sentence motion that the verdict was against the weight of the evidence is

without merit.

3
  Defendant's assertion came in at trial through the testimony of the victims in this case. Defendant did not testify at
trial.


                                                           6
          2. Post-Sentence Motion Challenging Defendant's Sentence

          Defendant also claimed in his Amended Petition that trial counsel was ineffective for

failing to file a post-sentence motion challenging the sentence of 10 to 20 years, and that

appellate counsel was ineffective for failing to present this claim on appeal. Amended Petition at

,r 12.   However, nowhere in defendant's Amended Petition does he allege that he requested

counsel file a post-sentence motion challenging the discretionary aspects of his sentence. As

stated above, counsel cannot be ineffective for failing to file a post sentence motion that

defendant never requested. Velasquez, 563 A.2d at 1275. With no post sentence motion

challenging the discretionary aspects of sentencing being filed, the matter was waived for

purposes of direct appeal. Appellate counsel, therefore, cannot be faulted for failing to raise a

waived claim on appeal.

          In any event, defendant must establish that, had counsel presented such a motion, it

"would have led to a different and more favorable outcome at ... sentencing." Commonwealth v.

Reaves, 923 A.2d 1119, 1131-32 (Pa. 2007). This Court would not have altered defendant's

sentence had counsel moved for reconsideration. The record in this matter established that the

Court considered the nature and circumstances of this offense, the presentence investigation

report, the sentencing guidelines, the need for the protection of the public, and the gravity of the

offense in relation to its impact upon the victims. N.T. 8/12/08 at 9. It was clear to the Court

that defendant, having been convicted of eight prior burglaries, and having served multiple state

sentences for those convictions, was unable to be rehabilitated and that defendant would be

committing additional burglaries upon release from custody. N.T. 8/12/08 at 9-10. Because the

sentence was fair, fully justified by the record, and would not have been reduced, defendant was

not prejudiced by trial counsel's failure to file a motion for reconsideration of sentence.




                                                  7
       Moreover, defendant cannot demonstrate that he was prejudiced by appellate counsel's

failure to challenge defendant's sentence, even had trial counsel preserved this issue for appeal.

"Sentencing is a matter vested in the sound discretion of the sentencing judge, and a sentence

will not be disturbed on appeal absent a manifest abuse of that discretion."    Commonwealth v.

Anderson, 552 A.2d 1064, 1072 (Pa. Super. 1988), app. denied, 571 A.2d 379 (Pa. 1989); see

Commonwealth v. Walls, 926 A.2d 957, 961 (Pa. 2007). Where the sentence falls outside the

Sentencing Guidelines, the sentence should be affirmed on appeal unless it is "unreasonable." 42

Pa.C.S. § 978l(c)(3); see Commonwealth v. P.L.S., 894 A.2d 120, 130 (Pa. Super. 2006). "The

sentencing court may deviate from the guidelines, if necessary, to fashion a sentence which takes

into account the protection of the public, the rehabilitative needs of the defendant, and the

gravity of the particular offenses as it relates to the impact on the life of the victim and the

community." Commonwealth v. Cunningham, 805 A.2d 566, 575 (Pa. Super. 2002), appeal

denied, 820 A.2d 703 (Pa. 2003). The factual basis and reasons for the departure must be stated

on the record. Id.

       Here, the Court plainly stated its reasons for departing above the sentencing guidelines

and sentencing defendant to the maximum possible penalty allowed by law. Defendant was a

career burglar, whose record demonstrated that he was unable to be rehabilitated. Given

defendant's eight prior burglary offenses, it was clear to the Court that any sentence imposed by

the Court would not serve to rehabilitate defendant, or deter him from committing new burglaries

upon his release. The Court's sentence, therefore, was entirely reasonable and could not have

been successfully challenged on appeal. As defendant cannot demonstrate that he was

prejudiced by appellate counsel's failure to present a claim concerning defendant's sentence,

defendant's claim must fail. Sneed, 899 A.2d at 1084.




                                                  8
       B. Failure to Request Jury Instruction Regarding Lack of Fingerprint Evidence

       Finally, defendant avers that "trial counsel was ineffective for failing to request a jury

instruction that the lack of fingerprint evidence supported a finding that the Defendant did not

commit a burglary inside the house." Statement of Errors at 12. This claim is without merit.

       The standard of review pertaining to jury instructions is clear:

       The trial court possesse[s] broad discretion in phrasing its instructions to the jury
       and [is] permitted to choose its own wording so long as the law [is] clearly,
       adequately and accurately presented to the jury for consideration. Furthermore, a
       trial court need not accept counsel's wording for an instruction, as long as the
       instruction given correctly reflects the law. It is axiomatic that, in reviewing a
       challenged jury instruction, an appellate court must consider the charge in its
       entirety, not merely isolated fragments, to ascertain whether the instruction fairly
       conveys the legal principles at issue. Instructions will be upheld if they adequately
       and accurately reflect the law and are sufficient to guide the jury properly in its
       deliberations.

Commonwealth v. Fletcher, 986 A.2d 759, 802 (Pa. 2009), quoting Commonwealth v. Rainey,

928 A.2d 215, 242-243 (Pa. 2007). A claim alleging trial counsel's ineffectiveness for failing to

request a particular jury instruction lacks arguable merit where the defendant was not legally

entitled to such an instruction. Commonwealth v. Busanet, 54 A.3d 35, 52 (Pa. 2012) (citing

Commonwealth v. Hanible, 30 A.3d 426, 462 (Pa. 2011)).

       Here, the Court's instructions clearly informed the jury that the lack of evidence could

support a finding of reasonable doubt and require a verdict of not guilty:

       Now, although the Commonwealth has the burden of proving that the defendant is
       guilty, this does not mean that the Commonwealth must prove its case beyond all
       doubt or to a mathematical certainty, nor must the Commonwealth demonstrate
       the complete impossibility of innocence. That is not required. What is required is
       that the Commonwealth prove guilty beyond a reasonable doubt, and a reasonable
       doubt is the kind of doubt that would cause a reasonably careful and sensible
       person to pause or hesitate in the acting upon a matter of the highest importance
       in his or her own affairs. A reasonable doubt must fairly arise out of the evidence
       that was presented or out of the lack of evidence presentedwith respect to some
       element of each of the crimes charged.




                                                 9
I   •




        N.T. 7/1/08 at 227-228 (emphasis added). The instruction requested by defendant, that "the lack

        of fingerprint evidence supported a finding that the [defendant] did not commit a burglary inside

        the house," did not further explicate the law. Instead, it was an argument in favor of a not guilty

        verdict that trial counsel was permitted to make to the jury. Defendant has not cited, and this

        Court is unaware of, any authority requiring the Court to set forth defendant's theories and

        arguments in the jury charge. Accordingly, defendant's underlying claim is without arguable

        merit and defendant's derivative claim of counsel's ineffectiveness must fail. Miller, 987 A.2d

        at 648. No relief is due.

                                               IV. CONCLUSION

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

        should be affirmed.




                                                                     BY THE COURT:




                                                                     GLENN B. BRONSON, J.




                                                        10
