J-S72044-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF                         :   IN THE SUPERIOR COURT OF
 PENNSYLVANIA                            :        PENNSYLVANIA
                                         :
                                         :
              v.                         :
                                         :
                                         :
 TYRELL HART                             :
                                         :   No. 3779 EDA 2016
                    Appellant

              Appeal from the PCRA Order November 18, 2016
  In the Court of Common Pleas of Philadelphia County Criminal Division at
                      No(s): CP-51-CR-0000461-2010


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

MEMORANDUM BY STEVENS, P.J.E.:                  FILED DECEMBER 01, 2017

      Appellant Tyrell Hart appeals pro se from the order entered in the Court

of Common Pleas of Philadelphia County dismissing, without an evidentiary

hearing, his first petition filed pursuant to the Post Conviction Relief Act

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

      The PCRA court has aptly set forth, in part, the facts and procedural

history underlying this appeal as follows:

            [Following his arrest and the appointment of David
      Rudenstein, Esquire,] [o]n March 27, 2012, the day before trial,
      the [trial] court denied [Appellant’s] request for a continuance in
      order to retain new counsel as he was not satisfied with. . .his
      appointed counsel. The new counsel, Charles Peruto, Jr., had not
      entered his appearance and was not prepared to proceed to trial.
      [Appellant] had only met with [Attorney] Peruto once before, at
      [Appellant’s] preliminary hearing on January 12, 2010. On March
      27, 2012, [Attorney] Peruto met with [Appellant] at the [trial]
      court’s request, to communicate the Commonwealth’s plea offer


____________________________________
* Former Justice specially assigned to the Superior Court.
J-S72044-17


     and explain to [Appellant] that he would not be representing
     [Appellant] at trial.
            Later that day,. . .the brother-in-law of [Appellant]
     attempted to retain new counsel, Attorney Shaka Johnson. On
     the day of trial, March 28, 2012, the [trial] court permitted
     [Attorney] Johnson to discuss the Commonwealth’s plea offer with
     [Appellant], but would not permit him to represent [Appellant] at
     trial because he was not prepared for trial. [Appellant rejected the
     plea offer, and a jury trial commenced with Attorney Rudenstein
     representing Appellant.]
           At trial, the Commonwealth proved the following:
           The victim, Selene Raynor (“Selene”) was pregnant with
     [Appellant’s] baby.    On October 13, 2009, Danette Raynor
     (“Danette”), Selene’s mother, overheard a telephone conversation
     between [Appellant] and Selene.        Danette testified that in
     response to Selene telling [Appellant] she was going to keep the
     baby, [Appellant] got angry. The next day, Selene received a
     phone call from [Appellant], after which she borrowed her
     mother’s vehicle and picked up [Appellant] at Twenty-Ninth and
     Montgomery Avenue in Philadelphia. They drove around for a
     while before Selene turned onto North Newkirk Street and parked
     the vehicle.
           While in the parked vehicle, [Appellant] shot Selene in the
     head, killing her and the unborn child. Selene’s body was found
     the next day inside her mother’s vehicle at 1920 North Newkirk
     Street.
            On October 15, 2009, [Appellant] was questioned by police.
     [Appellant] made two statements on October 16, 2009. In the
     first statement, he claimed the gun accidentally fired when he
     heard a loud noise that caused him to jump while he was playing
     with it. In the second statement, given to police approximately
     eight and one half hours later, [Appellant] admitted that he
     intentionally shot Selene because he was angry, scared, and
     frustrated over her being pregnant. He claimed that he aimed for
     Selene’s shoulder. [Appellant] also admitted to police that the
     whole time he was in the car with Selene—about twenty minutes-
     he was thinking about shooting her. Both statements were
     admitted into evidence at trial.
           Based on [Appellant’s] statements, the police were able to
     locate the gun at the home of Shayonna Price (“Price”), the cousin
     of [Appellant’s] best friend. A ballistics expert testified that the


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        gun [Appellant] used to shoot Selene required five pounds of
        pressure to be applied on the trigger in order for the gun to shoot.
        Therefore, according to the expert, the trigger had to be pulled to
        fire.
             The medical evidence was that Selene had been shot in the
        head and that she had died from that wound and that her unborn
        baby had died as the result of Selene’s death.

PCRA Court Opinion, filed 6/28/17, at 2-3.

        Following the conclusion of testimony, the jury convicted Appellant of

first-degree murder, third-degree murder of an unborn children, carrying a

firearm without a license, and possessing an instrument of crime.1 Appellant

proceeded immediately to sentencing, and the trial court sentenced Appellant

to an aggregate of life in prison without parole.

        Appellant did not file post-sentence motions; however, he filed a timely,

counseled direct appeal. On appeal, Appellant presented the issue of whether

the trial court denied Appellant a fair trial.      Specifically, he alleged his

constitutional rights were violated when the trial court prevented him from

being represented by the attorney of his choice by denying his request for a

continuance in connection therewith. After a careful review, we found no merit

to Appellant’s claim.

        Further, we noted that, on appeal, Appellant filed a motion to remand

for an evidentiary hearing on the basis of after-discovered evidence, i.e., a

newspaper article, which stated that two homicide detectives involved in


____________________________________________


1   18 Pa.C.S.A. §§ 2502(a), 2604(c), 6106, and 907, respectively.

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Appellant’s case had coerced confessions from other criminal defendants.

Appellant attached to the motion his affidavit, in which he outlined alleged

coercive tactics utilized by the detectives in his case.          However, we found

Appellant’s after-discovered evidence claim to be waived due to Appellant’s

failure to cite any relevant authority, and we denied his claim without

prejudice to his right to pursue the claim on collateral review. Accordingly, on

March    21,    2014,     we    affirmed       Appellant’s   judgment   of   sentence.

Commonwealth v. Hart, No. 1231 EDA 2012 (Pa.Super. filed 3/21/14)

(unpublished memorandum). Appellant did not file a petition for allowance of

appeal with our Supreme Court.

       On July 3, 2014, Appellant filed a timely pro se PCRA petition, and the

PCRA court appointed counsel to represent him. Thereafter, on July 28, 2016,

counsel filed a petition to withdraw his representation, as well as a

Turner/Finley2 “no-merit” letter.              On October 7, 2016, the PCRA court

provided Appellant with notice of its intent to dismiss Appellant’s petition

without an evidentiary hearing. On October 14, 2016, Appellant filed a pro se

response to the notice, and on October 26, 2016, he filed a pro se response

in opposition to counsel’s Turner/Finley letter.

       By order entered on November 18, 2016, the PCRA court granted

counsel’s petition to withdraw and dismissed Appellant’s PCRA petition. This


____________________________________________


2 Commonwealth v. Turner, 518 Pa. 491, 544 A.2d 927 (1988);
Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc).

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timely pro se appeal followed. The PCRA court directed Appellant to file a

Pa.R.A.P. 1925(b) statement, Appellant timely complied, and the PCRA court

filed a responsive Pa.R.A.P. 1925(a) opinion.

     Appellant presents the following issues:

     1. Whether prior counsel were ineffective for failing to raise a
        meritorious Pa.R.Crim.P. 600 (speedy trial rule) motion to
        dismiss that deprived [Appellant] of his substantive Sixth (6 th)
        and   Fourteenth      (14th)   United   States   Constitutional
        Amendments and/or the Pennsylvania Constitutional right
        under Article 1, § 9 depriving a basic human right?
     2. Whether [Appellant] was deprived of his substantive (Sixth)
        (6th) [Amendment] and Article 1, § 9 Pennsylvania
        Constitutional right to effective assistance of counsel on direct
        appeal proceedings for the unreasonable failure of counsel to
        submit relevant holdings on [after]-discovered evidence that
        would have merited a remand on direct appeal for an
        evidentiary hearing on a meritorious involuntary confession
        claim?
     3. Whether Petitioner was denied his substantive Sixth (6th)
        [Amendment] and Article 1, § 9 Pennsylvania rights to effective
        assistance of counsel on direct appeal for the unreasonable
        failure of counsel to cite holdings that were directly-on-point to
        [Appellant’s] denial of his substantive right to retained counsel
        of choice[?]
     4. Whether [Appellant] was denied his substantive Sixth (6th)
        [Amendment] and/or Article 1, § 9 Pennsylvania Constitutional
        rights to effective assistance of [ ] trial counsel to follow-
        through on a requested mistrial due to prejudicial prosecutorial
        misconduct used to deprive [Appellant] of fair trial
        proceedings?
     5. Whether [Appellant] was denied his substantive Sixth (6th)
        [Amendment] and Article 1, § 9 Pennsylvania Constitutional
        rights to effective assistance of counsel on direct appeal for the
        unreasonable failure of counsel to ensure the jury selection
        process was transcribed and/or for failing to even review such
        material transcripts?
     6. Whether [Appellant’s] initial review collateral petition raises
        genuine issues of material fact necessitating an evidentiary

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         hearing per Pa.R.Crim.P. 908(A)(2) to adjudicate [Appellant’s]
         ineffective assistance of counsel claims?

Appellant’s Brief at 4.

      Initially, we note the following:

            When reviewing the denial of a PCRA petition, we must
      determine whether the PCRA court’s order is supported by the
      record and free of legal error. Generally, we are bound by a PCRA
      court’s credibility determinations. However, with regard to a
      court’s legal conclusions, we apply a de novo standard.

Commonwealth v. Johnson, 635 Pa. 665, 139 A.3d 1257, 1272 (2016)

(quotation marks and quotations omitted).

      Furthermore,

            In order to be eligible for PCRA relief, the petitioner must
      prove by a preponderance of the evidence that his conviction or
      sentence resulted from one or more of the enumerated
      circumstances found in Section 9543(a)(2), which includes the
      ineffective assistance of counsel. 42 Pa.C.S.[A.] § 9543(a)(2)(i).
             It is well-established that counsel is presumed effective, and
      to rebut that presumption, the PCRA petitioner must demonstrate
      that counsel’s performance was deficient and that such deficiency
      prejudiced him. To prevail on an ineffectiveness claim, the
      petitioner has the burden to prove that (1) the underlying
      substantive claim has arguable merit; (2) counsel whose
      effectiveness is being challenged did not have a reasonable basis
      for his or her actions or failure to act; and (3) the petitioner
      suffered prejudice as a result of counsel’s deficient performance.
      The failure to satisfy any one of the prongs will cause the entire
      claim to fail.

Commonwealth v. Benner, 147 A.3d 915, 919–20 (Pa.Super. 2016)

(quotation marks, quotations, and citations omitted).

            We need not analyze the prongs of an ineffectiveness claim
      in any particular order. Rather, we may discuss first any prong
      that an appellant cannot satisfy under the prevailing law and the


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      applicable facts and circumstances of the case. Finally, counsel
      cannot be deemed ineffective for failing to raise a meritless claim.

Johnson, 635 Pa. 665, 139 A.3d at 1272 (citations omitted).

      Further,   to   the   extent   Appellant   presents   layered    claims   of

ineffectiveness, we note that:

      [l]ayered claims of ineffectiveness are not wholly distinct from the
      underlying claims because proof of the underlying claim is an
      essential element of the derivative ineffectiveness claim. In
      determining a layered claim of ineffectiveness, the critical inquiry
      is whether the first attorney that the [appellant] asserts was
      ineffective did, in fact, render ineffective assistance of counsel. If
      that attorney was effective, then subsequent counsel cannot be
      deemed ineffective for failing to raise the underlying issue.

Commonwealth v. Rykard, 55 A.3d 1177, 1190 (Pa.Super. 2012)

(quotation marks and quotations omitted).

      In his first issue, Appellant contends trial and direct appeal counsel were

ineffective in failing to raise a claim that Appellant’s case should have been

dismissed since he was not brought to trial until twenty-nine months after he

was arrested in violation of his speedy trial rights under Pa.R.Crim.P. 600.

The PCRA court found no merit to Appellant’s underlying Rule 600 claim, and

thus, the court held Appellant’s attorneys could not be ineffective. We agree.

      When considering Rule 600 issues:

      this Court is not permitted to ignore the dual purpose behind Rule
      [600]. Rule [600] serves two equally important functions: (1) the
      protection of the accused’s speedy trial rights, and (2) the
      protection of society. In determining whether an accused’s right
      to a speedy trial has been violated, consideration must be given
      to society’s right to effective prosecution of criminal cases, both
      to restrain those guilty of crime and to deter those contemplating
      it. However, the administrative mandate of Rule [600] was not

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       designed to insulate the criminally accused from good faith
       prosecution delayed through no fault of the Commonwealth.

Commonwealth v. Thompson, 93 A.3d 478, 486 (Pa.Super. 2014)

(quotation omitted).

       Rule 600 provides in pertinent part:3

              Rule 600. Prompt Trial
                                        ***
              (A)(2) Trial in a court case in which a written complaint is
       filed against the defendant, when the defendant is incarcerated on
       that case, shall commence no later than 180 days from the date
       on which the complaint is filed.
                 (3) Trial in a court case in which a written complaint is
       filed against the defendant, when the defendant is at liberty on
       bail, shall commence no later than 365 days from the date on
       which the complaint is filed.
                                        ***
            (B) For purposes of this rule, trial shall be deemed to
       commence on the date the trial judge calls the case to trial, or the
       defendant tenders a plea of guilty or nolo contendere.
             (C) In determining the period for commencement of trial,
       there shall be excluded therefrom:
                                        ***
                  (3) such period of delay at any stage of the
       proceedings as results from:
                         (a) the unavailability of the defendant or the
       defendant’s attorney;
                         (b) any continuance granted at the request of
       the defendant or the defendant’s attorney.

____________________________________________


3  We note that Rule 600 was amended on October 1, 2012, effective July 1,
2013. However, Appellant was brought to trial in March of 2012, and thus,
we shall analyze Appellant’s claim under the version of Rule 600 that was in
effect at that time.


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                                  ***
            (E) No defendant shall be held in pre-trial incarceration on
      a given case for a period exceeding 180 days excluding time
      described in paragraph (C) above. Any defendant held in excess
      of 180 days is entitled upon petition to immediate release on
      nominal bail.
                                  ***
             If the court, upon hearing, shall determine that the
      Commonwealth exercised due diligence and that the
      circumstances occasioning the postponement were beyond the
      control of the Commonwealth, the motion to dismiss shall be
      denied and the case shall be listed for trial on a date certain. If,
      on any successive listing of the case, the Commonwealth is not
      prepared to proceed to trial on the date fixed, the court shall
      determine whether the Commonwealth exercised due diligence in
      attempting to be prepared to proceed to trial. If, at any time, it
      is determined that the Commonwealth did not exercise due
      diligence, the court shall dismiss the charges and discharge the
      defendant.

Pa.R.Crim.P. 600 (footnote added).

      While “Rule 600 requires the Commonwealth to try a defendant within

365 days of the filing of a criminal complaint[,]. . .[a] defendant. . .is not

automatically entitled to discharge under Rule 600 where trial starts more

than 365 days after the filing of the complaint.” Commonwealth v. Roles,

116 A.3d 122, 125–26 (Pa.Super. 2015).        “Rather, Rule 600 ‘provides for

dismissal of charges only in cases in which the defendant has not been brought

to trial within the term of the adjusted run date, after subtracting all

excludable and excusable time.’” Id. at 126 (quotation omitted).             “The

adjusted run date is calculated by adding to the mechanical run date, i.e., the

date 365 days from the complaint, both excludable and excusable delay.” Id.



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      “Excludable time includes delay caused by the defendant or his lawyer[,]

[whereas] excusable delay occurs where the delay is caused by ‘circumstances

beyond the Commonwealth’s control and despite its due diligence.’” Id.

(quotation omitted). “Due diligence is a fact-specific concept that must be

determined on a case-by-case basis. Due diligence does not require perfect

vigilance and punctilious care, but rather a showing by the Commonwealth

that a reasonable effort has been put forth.” Id. (quoting Commonwealth

v. Armstrong, 74 A.3d 228, 236 (Pa.Super. 2013)). Further, “judicial delay

is a justifiable basis for an extension of time if the Commonwealth is ready to

proceed.” Commonwealth v. Hunt, 858 A.2d 1234, 1241 (Pa.Super. 2004)

(en banc) (quotation marks and quotation omitted).

      Here, in finding no merit to Appellant’s underlying Rule 600 claim, the

PCRA court relevantly indicated the following:

            In the instant case, 188 days of the delay were excludable:
      35 days due to [Appellant] not having an attorney, and 153 days
      due to defense requests for continuances. In addition, 540
      excusable days were due to the difficulty, by the court, in
      scheduling a capital case for trial. [For instance, on September
      20, 2010, the trial court listed the case for trial on March 26, 2012,
      ruling all but twelve days, which was attributed to the
      Commonwealth’s request not to schedule trial during the weeks of
      Christmas and New Year’s Day, was excusable.]                When all
      excludable and excusable time is considered, [Appellant] was
      brought to trial 165 days after his arrest. Thus, the case was tried
      within the time allotted by Rule 600.

PCRA Court Opinion, filed 6/28/17, at 8.

      We agree with the PCRA court’s analysis in this regard and, further,

agree that trial counsel cannot be deemed ineffective in failing to raise a

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meritless claim.4 See Johnson, supra.              In this vein, we note that we reject

Appellant’s suggestion that his defense counsel’s requests for continuances do

not constitute “excludable time” for Rule 600 purposes. Rule 600 clearly holds

otherwise. See Pa.R.Crim.P. 600(C)(3).

       In his next issue, Appellant contends his direct appeal counsel was

ineffective in failing to submit relevant holdings/authority regarding his after-

discovered evidence claim (i.e., a November 5, 2013, article from The

Philadelphia Daily News indicating two homicide detectives had coerced

confessions from other criminal defendants). Appellant argues that, had

counsel adequately developed the claim on appeal, this Court would not have

found waiver on direct appeal and, additionally, would have remanded for an

evidentiary hearing or provided some other relief.

       Our Supreme Court has held that, to prevail on a claim of appellate

counsel ineffectiveness with regard to the manner in which a claim was

litigated on direct appeal, “the PCRA petitioner must show exactly how

appellate counsel was ineffective, by offering additional evidence or controlling

authority, missed by direct appeal counsel, that would have changed the

appeal outcome[.]” Commonwealth v. Koehler, 614 Pa. 159, 36 A.3d 121,

142 (2012) (quotation marks and quotation omitted).

       Further:


____________________________________________


4Further, direct appeal counsel cannot be deemed ineffective in this regard.
See Rykard, supra.

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            To warrant a new trial based on after-discovered evidence,
     the appellant must show that the evidence “(1) could not have
     been obtained prior to trial by exercising reasonable diligence; (2)
     is not merely corroborative or cumulative; (3) will not be used
     solely to impeach a witness’s credibility; and (4) would likely result
     in a different verdict.” Commonwealth v. Castro, 625 Pa. 582,
     588, 93 A.3d 818, 821 (2014) (quoting Commonwealth v.
     Pagan, 597 Pa. 69, 950 A.2d 270, 292 (2008)).
                                  ***
           We acknowledge that in Castro, our Supreme Court held
     that allegations in a newspaper article “do not constitute
     evidence” and thus, were not sufficient to support a motion for an
     evidentiary hearing or a new trial. The Supreme Court specifically
     stated:
           [a]llegations in the media, whether true or false, are
           no more evidence than allegations in any other out-
           of-court situation. Nothing in these allegations even
           read in the broadest sense, can be described as
           “evidence,” and references to the officer being under
           investigation for misconduct contains no information
           regarding what evidence existed to substantiate this
           averment. One cannot glean from these bald
           allegations what evidence of misconduct [the]
           appellee intended to produce at the hearing.
     Castro, 625 Pa. at 595, 93 A.3d at 825. As “an evidentiary
     hearing is not meant to function as a fishing expedition for any
     possible evidence that may support some speculative claim,” the
     Supreme Court concluded that Castro “needed to do more than
     present an article pointing to allegations that if true have the
     potential to aid his cause; he needed to clearly articulate in his
     motion what evidence he would present to meet the test.” Id. at
     598–99, 93 A.3d at 828.

Commonwealth v. Brown, 134 A.3d 1097, 1108-09 (Pa.Super. 2016).

     In the case sub judice, notwithstanding the fact direct appeal counsel

may have been derelict in failing to develop the motion properly on direct




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appeal with citation to relevant authority so as to avoid waiver, we conclude

Appellant is not entitled to relief.

      Under Castro, the newspaper article Appellant attached to his petition

is not “evidence.” Further, as the PCRA court held:

       [Appellant] references. . .a newspaper article accusing Detective
      James Pitts and Detective Omar Jenkins of coercing statements
      from witnesses in other cases. [Appellant] [did not allege in the
      trial court] that the statement he gave to detectives was coerced.
      Indeed, had [Appellant’s] statement been coerced, that fact would
      have been known to him and could have been raised during the
      trial.

PCRA Court Opinion, filed 6/28/17, at 9.

      Therefore, at most, Appellant could have utilized the newspaper article

to attack the credibility of witnesses who testified that Appellant’s confession

was voluntary. Accordingly, even if the item identified by Appellant comprised

relevant evidence, it would not meet the four-prong admissibility test provided

in Castro as an appellant seeking a new trial must demonstrate that he will

not use the alleged after-discovered evidence “solely to impeach a witness’s

credibility.” Castro, 625 Pa. 582, 93 A.2d at 821 n.7. Accordingly, Appellant

is not entitled to relief on his allegation of ineffective assistance of appellate

counsel in connection with his after-discovered evidence claim.

      In his next issue, Appellant contends that appellate counsel was

ineffective in failing to cite legal precedent that would have persuaded this

Court on direct appeal that the trial court abused its discretion in denying

Appellant’s request for a continuance so that he could be represented by the


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attorney of his choice during the jury trial proceedings. In essence, Appellant

contends that appellate counsel was ineffective in the manner in which he

litigated the issue on direct appeal. We conclude no relief is due.

      Appellant claims that, in developing the argument on appeal, direct

appeal counsel should have cited to Commonwealth v. Prysock, 972 A.2d

539 (Pa.Super. 2009), since such was directly on point and factually

indistinguishable from his case. Appellant is correct that, in Prysock, a panel

of this Court held that the trial court abused its discretion in denying an

appellant’s request for a continuance in order to secure new counsel.

However,   Appellant    is   mistaken   in    his   assertion   that   Prysock   is

indistinguishable from the case sub judice.

      In concluding the trial court erred in denying the appellant’s request for

a continuance in Prysock, a panel of this Court held the following:

            Here, the record does not establish that any of the factors
      which we rely on in ascertaining whether the swift administration
      of justice would be vitiated by granting the continuance were
      present. Although the underlying criminal activity in this matter
      occurred in December 2006, [the] appellant was not charged until
      May 2007, and counsel was not appointed until some time after
      June 28, 2007, less than thirty days prior to the scheduled trial
      date of August 8, 2007.           While the trial court and the
      Commonwealth argue that this trial date was continued, at least
      in part, so that [the] appellant could retain private counsel, there
      is nothing in the record which substantiates this claim[.]
             There is also no indication in the record that [the] appellant
      was ever personally warned that he needed to retain counsel by a
      specific date or that no further continuances would be granted
      after the trial was initially continued. Also, the record
      demonstrates that [the] appellant was incarcerated in a state
      correctional facility at all times since December 2006, making it
      difficult for him to retain counsel in Allegheny County; however,

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      his family did obtain counsel to represent him, who attempted to
      enter his appearance on November 2, 2007. Thus, it was apparent
      that [the] appellant was not attempting to unreasonably delay the
      trial proceedings by claiming that he was going to retain private
      counsel when he had no means or intention of doing so.
             Further, the trial court relied on a single factor in making its
      decision not to grant the requested continuances, the fact of the
      prior continuance on August 8, 2007. The record reflects that the
      trial court failed to make any inquiry whatsoever into the nature
      of the dispute between [the] appellant and appointed counsel, and
      thus failed to make the type of detailed factual findings that we
      have previously commended and in their absence have found an
      abuse of discretion.

Prysock, 972 A.2d at 544-45 (footnotes, citations, quotation marks, and

quotation omitted).

      By contrast, in the case sub judice, in concluding the trial court did not

err in denying Appellant’s request for a continuance, a panel of this Court held

the following on direct appeal:

             Instantly, the parties appeared for trial on March 27, 2012.
      At that time, Attorney Rudenstein orally requested a continuance,
      stating Appellant wanted more time to retain Attorney Peruto as
      trial counsel. The court asked Attorney Rudenstein if he was
      prepared to start trial, and Attorney Rudenstein answered
      affirmatively. The court also conducted an on-the-record
      teleconference with Attorney Peruto. During the teleconference,
      the following exchange occurred:
            [ATTORNEY PERUTO]: I am not fully retained. I have
            not entered my appearance. I did call the Assistant
            District Attorney last week to see if there was any shot
            at a third degree plea at all in this case, and I don’t
            think we touched base after that.
            [THE COMMONWEALTH]: That’s true.
            [ATTORNEY PERUTO]: There is a—
            THE COURT: Mr. Peruto, you either have to be in or
            out. Now, if you’re not in, then Mr. Rudenstein is
            going to proceed to try the case today. It’s listed

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            today, and I can’t continue the case just because you
            might at some point in the future represent
            [Appellant]. You have to tell me whether you’re in or
            out.
            [ATTORNEY PERUTO]: I agree with you, and I am not
            in.

Commonwealth v. Hart, 1231 EDA 2012, *6-7 (Pa.Super. filed 3/21/14)

(unpublished memorandum) (footnote and citation to record omitted).

      Moreover, this Court noted that Attorney Rudenstein participated in jury

selection on March 27, 2012; however, when the proceedings commenced on

March 28, 2012, the trial court acknowledged that another attorney, Attorney

Johnson, was present at the behest of Appellant’s family.        See id. at 8.

However, Attorney Johnson had not accepted any payment from the family,

had not formally entered an appearance, had not met with Appellant, and was

not prepared for trial. See id. The trial court provided a one-hour recess so

that Attorney Johnson could speak with Attorney Rudenstein and Appellant in

order to permit further discussion regarding the plea offer; however, upon

expiration of the one-hour recess, and with Appellant’s continued insistence

he wanted to be tried by a jury, the trial court denied Appellant’s request for

a continuance. This Court concluded on appeal that the trial court properly

denied Appellant’s eleventh-hour request for a continuance since the request

served to “unreasonably clog the machinery of justice or hamper and delay

the state’s efforts to effectively administer justice.” See id. at 10 (quotation

marks and quotation omitted).



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      Based on the aforementioned, we conclude Prysock is distinguishable

from the case sub judice, and thus, appellate counsel would not have

succeeded on appeal with the citation and discussion thereof. Accordingly,

appellate counsel was not ineffective in failing to cite to this authority in

support of Appellant’s issue on direct appeal. See Koehler, 614 Pa. 159, 363

A.3d at 142 (“To succeed on a stand-alone claim of appellate counsel’s

ineffectiveness, a PCRA petitioner must demonstrate that appellate counsel

was ineffective in the manner by which he litigated the claim on appeal.”).

      In his next issue, Appellant contends trial counsel was ineffective in

failing to request a mistrial in response to prosecutorial misconduct occurring

during the prosecutor’s closing argument to the jury.      We conclude no relief

is due.

      In support of his argument, Appellant cites to the following portion of

the prosecutor’s closing argument:

      [Appellant] acted as her judge, her jury, and her executioner and
      a self-proclaimed abortionist of that baby, because he shot her in
      the head, the baby died, too.

N.T., 3/30/12, at 52.

      Our review of the certified record reveals that trial counsel immediately

objected to the prosecutor’s statement; however, the trial court overruled the

objection.   Id. at 53.     Moreover, and contrary to Appellant’s mistaken

assertion, trial counsel specifically requested a mistrial due to the prosecutor’s

statement. Id. at 82. The trial court denied the request for a mistrial, but


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indicated it planned to give a curative instruction. Id. at 82-84. Thereafter,

the trial court gave the following curative instruction:

       [D]uring her closing argument, the District Attorney mentioned
       the word “abortion.” This case is not about abortion. That was
       inappropriate. This case is about the murder of an unborn child,
       not abortion. So you will please disregard that.

Id. at 88.

       As is evident, there is no merit to Appellant’s claim that trial counsel

failed to request a mistrial.5 Therefore, counsel cannot be deemed ineffective

on this basis.

       In his next issue, Appellant contends direct appeal counsel was

ineffective in ensuring that the transcript related to jury selection was

transcribed and reviewed by him prior to the filing of a direct appeal on

Appellant’s behalf.

       As the PCRA court concluded “[Appellant] has not advanced any claim

or provided any reasons as to why the notes would be required.” PCRA Court

Opinion, filed 6/28/17, at 11. In essence, the PCRA court concluded Appellant

failed to demonstrate how he was prejudiced by direct appeal counsel’s

omission. See Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973, 977


____________________________________________


5 To the extent Appellant contends trial counsel was ineffective in failing to
object to the cautionary instruction, we note that, aside from asserting the
trial court’s curative instruction did not remove the alleged “taint” from the
prosecutor’s statement, Appellant has not developed the argument further.




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(1987) (holding a defendant raising claims of ineffective assistance of counsel

is required to show actual prejudice — that is, that counsel's conduct “had an

adverse effect on the outcome of the proceedings”). We agree and conclude

Appellant is not entitled to relief.6 Johnson, supra.

       In his final issue, Appellant contends the PCRA court erred in dismissing

his petition without an evidentiary hearing.

       “A PCRA petitioner is not entitled to an evidentiary hearing as a matter

of right, but only where the petition presents genuine issues of material fact.

A PCRA court’s decision denying a claim without a hearing may only be

reversed upon a finding of an abuse of discretion.”        Commonwealth v.

Walker, 613 Pa. 601, 36 A.3d 1, 17 (2011) (citation omitted).

       In the case sub judice, the PCRA court indicated it did not hold an

evidentiary hearing since there were no genuine issues of material fact in

controversy. See PCRA Court Opinion, filed 6/28/17, at 11-12. We find no

abuse of discretion. See Walker, supra.

       For all of the foregoing reasons, we affirm the PCRA court’s dismissal of

Appellant’s first PCRA petition.

       Affirmed.




____________________________________________


6 Appellant further asserts PCRA counsel was ineffective in arguing in his “no-
merit” letter that there was no merit to this contention. To the extent
Appellant preserved this issue below, we conclude he is not otherwise entitled
to relief. See Rykard, supra.

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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/1/2017




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