J-S73023-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                     IN THE SUPERIOR COURT
                                                            OF
                                                       PENNSYLVANIA
                          Appellee

                     v.

ERIC J. HALL,

                          Appellant                   No. 595 WDA 2018


            Appeal from the PCRA Order Entered March 23, 2018
           In the Court of Common Pleas of Westmoreland County
             Criminal Division at No(s): CP-65-CR-0000006-2012

BEFORE: GANTMAN, P.J., BENDER, P.J.E., and OLSON, J.

MEMORANDUM BY BENDER, P.J.E.:                     FILED JANUARY 30, 2019

      Appellant, Eric J. Hall, appeals from the post-conviction court’s March

23, 2018 order denying his timely petition filed under the Post Conviction

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

      Rather than reiterating the facts of Appellant’s underlying convictions,

we rely on the detailed summary set forth by the PCRA court in its February

9, 2017 opinion.    See PCRA Court Opinion (PCO), 2/9/17, at 2-11.           On

September 18, 2013, a jury convicted Appellant of two counts of first-degree

murder and related offenses. On December 17, 2013, he was sentenced to

two, consecutive life terms of incarceration, without the possibility of parole.

He filed a timely direct appeal and, after this Court affirmed his judgment of

sentence, our Supreme Court denied his subsequent petition for allowance of

appeal.    Commonwealth v. Hall, No. 131 WDA 2014, unpublished
J-S73023-18



memorandum (Pa. Super. Dec. 16, 2014), appeal denied, 116 A.3d 603 (Pa.

2015).

       Appellant filed a timely, pro se PCRA petition and counsel was appointed.

An amended petition was filed by counsel on June 30, 2016, and the court

conducted an evidentiary hearing on November 15, 2016. There, Appellant

abandoned all but one claim of trial counsel’s ineffectiveness, involving

counsel’s failure to call Appellant’s mother to the stand at trial. On February

9, 2017, the PCRA court issued an opinion that notified Appellant of its intent

to deny this ineffectiveness claim. In response, Appellant filed a pro se motion

to amend his petition and dismiss his PCRA counsel. The PCRA court granted

Appellant’s motion to amend, and withdrew the representation of his court-

appointed PCRA counsel.

       Thereafter, Appellant retained private counsel, who filed an amended

petition on his behalf on December 1, 2017, raising a second claim of trial

counsel’s ineffectiveness, arguing that counsel erred by not requesting a

certain jury instruction in response to a question posed by the jury. On March

23, 2018, the court issued an order explaining that it was dismissing that claim

without a hearing, and also formally dismissing the other claims raised in

Appellant’s first amended petition, on which a hearing had been held.1
____________________________________________


1 The PCRA court did not issue a Pa.R.Crim.P. 907 notice of its intent to
dismiss, without a hearing, the ineffectiveness claim raised in Appellant’s
second amended petition. However, because Appellant does not object to that
omission on appeal, he has waived it for our review. See Commonwealth
v. Taylor, 65 A.3d 462, 468 (Pa. Super. 2013) (“The failure to challenge the
absence of a Rule 907 notice constitutes waiver.”) (citation omitted).

                                           -2-
J-S73023-18



      Appellant filed a timely notice of appeal, and he also timely complied

with the court’s order to file a Pa.R.A.P. 1925(b) statement of errors

complained of on appeal. In lieu of a Rule 1925(a) opinion, the PCRA court

issued a statement indicating that it was relying on the rationale set forth in

its February 9, 2017 opinion and March 23, 2018 order.

      Herein, Appellant raises two issues for our review:

      I.    Whether trial counsel was ineffective for failing to call
            Appellant’s mother, Deborah Finley, who would have
            testified that she did not give her son the handgun discussed
            during the trial as the possible murder weapon until two
            days after the murders?

      II.   Whether trial counsel was ineffective for failing to request
            the   alternative  hypothesis    instruction    where    the
            Commonwealth’s case was based solely on circumstantial
            evidence?

Appellant’s Brief at 1.

       We have reviewed the certified record, the briefs of the parties, and the

applicable law. Additionally, we have reviewed the thorough and well-crafted

decisions of the Honorable Rita Donovan Hathaway, President Judge of the

Court of Common Pleas of Westmoreland County. We conclude that President

Judge Hathaway’s extensive, well-reasoned opinion issued on February 9,

2017, accurately disposes of the first issue presented by Appellant. See PCO

at 12-21.   Additionally, President Judge Hathaway’s March 23, 2018 order

offers a legally sound explanation for rejecting the second claim Appellant

raises herein. See PCRA Court Order, 3/23/18, at 1-6. Accordingly, we adopt




                                     -3-
J-S73023-18



those decisions as our own and affirm the order denying Appellant’s petition

for the reasons set forth therein.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/30/2019




                                     -4-
                                                                               Circulated 01/17/2019 01:54 PM




     IN THE COURT OF COMMON PLEAS OF WESTMORELAND COUNTY,
                PENNSYLVANIA-CRIMINAL DIVISION

 COMl\10N\VEALTH OF PENNSYLVANIA                     )
                                                     )
                       vs.                           )
                                                     )      No.     6 C 2012
               ERIC 1. HALL,                         )
                                                     )
                                      Defendant.     )

                                      ORDER OF COURT

        AND NOW, this        u� day of March, 2018, upon consideration of Defendant's
response to the Court's Notice of Intent to Dismiss, and for the reasons already set forth

in this Cami's Order of Court and Notice of Intent to Dismiss, attached hereto,

Defendant's petition for post-conviction relief is hereby DISMISSED.

        This Court issued a Notice of Intent to Dismiss Defendant's petition for post-

conviction relief on February 9, 2017, after an evidentiary hearing. Defendant filed a

motion to amend his petition on March 7, 2017. The Court granted Defendant's motion,

withdrawing court-appointed Attorney Timothy Andrews' appearance in the case. Private

counsel Chris Eyster entered his appearance on or about the same date. Defendant filed

an amended petition on December 1, 2017, in which he averred that trial counsel was

ineffective for failing to request a specific jury instruction during trial.

       Defendant's claim is in reference to a question submitted by the jury to the Court

during deliberations. The question was as follows:

              Can we say guilty if our common sense says guilty, but the
              State's case doesn't tie up all loose ends and leaves some
              doubt?
             (IT 1329).

      In response to the question, the Court reiterated the following standards regarding

presumption of innocence and reasonable doubt:


            Ladies and gentlemen, I'm going to read again for you the
            definition of presumption of innocence and burden of proof
            and reasonable doubt, and rm sure that will clarify the
            answer for you.

             A fundamental principle of our system of criminal law is that
             the defendant is presumed to be innocent. The mere fact that
            he was arrested and is accused of a crime is not evidence
            against him. Furthermore, the defendant is presumed innocent
            throughout the trial and unless and until you conclude, based
            on careful and impartial consideration of the evidence, that
            the Commonwealth has proved him guilty beyond a
            reasonable doubt.

            It is not the defendant's burden to prove that he is not guilty.
           Instead, it is the Commonwealth that always has the burden of
           proving each and every element of the crime charged and the
           defendant is guilty of that crime beyond a reasonable doubt.
           The person accused of a crime is not required to present
           evidence or prove anything in his own defense. If the
           Commonwealth's evidence fails to meet its burden, then the
           verdict must be not guilty. On the other hand, if the
           Commonwealth's evidence does prove beyond a reasonable
           doubt that the defendant is guilty, then your verdict should be
           guilty.

           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 and to a
          mathematical certainty, nor must it demonstrate the complete
          impossibility of innocence. A reasonable doubt is a doubt that
          would cause a reasonably careful and sensible person to
          hesitate before acting upon a matter of 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
          presented with respect to some element of the crime. A

                                          2
               reasonable doubt must be a real doubt. It may not be an
               imagined one, nor may it be a doubt manufactured to avoid
               carrying out an unpleasant duty.

                So, to summarize, you may not find the ( defendant] guilty
               based on a mere suspicion of guilt. The Commonwealth has
               the burden of proving the defendant guilty beyond a
               reasonable doubt. If it meets that burden, then the defendant
               is no longer presumed innocent and you should find him
               guilty. On the other hand, if the Commonwealth does not
               meet its burden, you must find him not guilty.
               (TT 1329-31).

 Defendant, in his amended petition, states that the jurors' question "should have

 prompted trial counsel to request" the following instruction:


              Before you may rely on circumstantial evidence to conclude
              that a fact necessary to find the defendant guilty has been
              proved, you must be convinced that the Commonwealth has
              proved each fact essential to that conclusion beyond a
              reasonable doubt. Also, before you may rely on
              circumstantial evidence to find the defendant guilty, you must
              be convinced that the only reasonable conclusion supported
              by the circumstantial evidence is that the defendant is guilty.
              If you can draw two or more reasonable conclusions from the
              circumstantial evidence and one of those reasonable
              conclusions points to innocence and another to guilt, you
              must accept the one that points to innocence.

Defendant further states that when the jury asked the aforementioned question, the Court

had a sua sponte duty under the due process clause of the U.S. and Pennsylvania

Constitutions to instruct the jury on how to evaluate circumstantial evidence when the

prosecution "substantially relied on circumstantial evidence to establish any element of

its case." In support of this contention, Defendant cites two California Supreme Court

cases, which relied on standard California criminal jury instructions, and one Connecticut


                                             3
 Supreme Court case, which also relied on relevant State-specific criminal jury

 instructions. Defendant did not list any case law from this Commonwealth to support his

 claim.

          In order to successfully raise a claim of ineffective assistance of counsel in a

 petition for post-conviction relief, a defendant must plead and prove, by a preponderance

 of the evidence:

                 (1) the underlying claim has arguable merit; (2) no
                reasonable basis existed for counsel's actions or failure to act;
                and     (3)    petitioner   suffered prejudice as     a    result
                of counsel's error such that there is a reasonable probability
                that the result of the proceeding would have been different
                absent such error.
                Comm. v. Reed,            971    A.2d     1216,     1221     (Pa.
                2009) (citing Comm. v. Pierce, 527 A.2d 973, 975 (Pa.
                1987)).

          As a threshold matter, there is no arguable merit to Defendant's claim. The Court

notes that the jurors' question made no reference to circumstantial evidence, and

addressed only "some doubt" they had while deliberating. Moreover, Defendant's

contention ignores the "unquestionable maxim of law ... that a trial comt had broad

discretion in phrasing its instructions, and may choose its own wording so long as the law

is clearly, adequately, and accurately presented to the jury for its consideration." Comm.

v. Antidormi, 84 A.3d 736 (Pa.Super. 2014). Defendant does not in any way aver that the

Court's instruction was inaccurate or improper.

      Finally, the Court could not find any support in Pennsylvania jurisprudence for

Defendant's proposed jury instruction. Again, it appears that Defendant is relying on a



                                              4
     standard jury instruction from California. Specifically, Standard California Criminal Jury

     Instruction 224 reads as follows:

                     Before you may rely on circumstantial evidence to conclude
                     that a fact necessary to find the defendant guilty, you must be
                     convinced that the People have proved each fact essential to
                     that conclusion beyond a reasonable doubt.

                    Also, before you may rely on circumstantial evidence to find
                    the defendant guilty, you must be convinced that the only
                    reasonable conclusion supported by the circumstantial
                    evidence is that the defendant is guilty. If you can draw two
                    or more reasonable conclusions from the circumstantial
                    evidence, and one of the reasonable conclusions points to
                    innocence and another to guilt, you must accept the one that
                    points to innocence. However, when considering
                    circumstantial evidence, you must accept only reasonable
                    conclusions and reject any that are unreasonable.1


           There is no arguable merit to the claim that defense counsel should have requested

    a standard jury instruction from another jurisdiction in response to an unrelated question.

    The Court also notes that it did read the standard Pennsylvania jury instruction regarding

    circumstantial evidence. (TT 1289�9 l ).               Had the jury asked a question concerning

    circumstantial evidence, or the relationship between direct and circumstantial evidence,

    the Court certainly would have again read the jury instructions commonly used in this

Commonwealth, or considered any instruction proposed by either the Commonwealth or

defense counsel.




I
  The Bench Notes attached to that instruction also note that California trial courts have a sua sponte duty to instruct
on how to evaluate circumstantial evidence if the prosecution substantially relies on circumstantial evidence to
establish any element of the case. That Bench Note also cites to the two California Supreme Court cases (Bloyd and
Heishman) that are also cited by Defendant.

                                                           5
           As Defendant's claim cannot pass the first prong of the ineffectiveness test

 described, supra, his argument is without merit, and must fail. The Court has already

 determined that the claims initially introduced in Defendant's pro-se petition, and

 adopted in the amended petition filed by Attorney Timothy Andrews, are also without

 merit.

          THE DEFENDANT IS NOTIFIED THAT ANY APPEAL TO THE SUPERIOR

COURT OF PEI\TNSYLVANIA FROM THIS COURT'S DISMISSAL OF                                      ms    PCRA

PETITION MUST BE FILED .WITHIN TIDRTY (30) DAYS FROM THE DATE OF

TIDS ORDER OF COURT.


                                                              BY THE COURT:


                                                  c==_���}cv.-N,S:zi, 7/ ;T"'-�;
                                                      .-------flita Donovai1 Hathaway, President Judge   #

Clerk of Courts

cc:       File
          John W. Peck, Esq., District Attorney
          Chris Eyster, Esq., Counsel for Defendant
          3242 Babcock Boulevard, Pittsburgh, PA 15237
          Pamela Neiderhiser, Esq., Court Administrator's Office




                                                        6
                                                                            Circulated 01/17/2019 01:54 PM
                                                                                      ('.<)




        IN THE COURT OF COMMON PLEAS OF WESTMORELAND COUNTY,
                      PENNSYLVANIA - CRIMINAL DIVISION


 COMMONWEALTH OF PENNSYLVANIA                     )
                                                  )
                      vs.                         )
                                                  )     No.    6   c 2012
               ERIC J. HALL,                      )
                                                  )
                                     Defendant.   )


                              OPINION OF THE COURT
                         AND NOTICE OF INTENT TO DISMISS

         AND NOW, this      --2_ day of February, 2017, upon consideration of Defendant's
petition filed pursuant to the Post Conviction Relief Act, (42 Pa.C.S. §9541, et seq.) and

upon consideration of the amended PCRA petition submitted by Timothy Andrews, Esq.,

court-appointed PCRA counsel for Defendant, as well as the testimony and briefs

submitted in support of that petition, it appears to the Court that there may be no genuine

issue of material fact, no entitlement to relief and no purpose to be served in further

proceedings for the following reasons:

   I.    FACTUAL AND PROCEDURAL HISTORY OF THE CASE

        Eric J. Hall ("Defendant") was convicted on September 18, 2013 of two counts of

Criminal Homicide and related charges after a jury trial. He was sentenced on December

17, 2013 to two consecutive life sentences. Defendant timely filed a Notice of Appeal to

the Pennsylvania Superior Court on January 15, 2014. The Pennsylvania Superior Court




                                             1
                                            9a
     affirmed the Court's Judgment of Sentence on December 16, 2014. The Pennsylvania

    Supreme Court denied Defendant' s Petition for Allowance of Appeal on May 12, 2015.

           Defendant filed a timely pro-se PCRA petition on November 30, 2015. The Court

    appointed Attorney Timothy Andrews to represent Defendant. Attorney Andrews initially

    filed a No-Merit Letter on February 25, 2016. After pro-se correspondence sent to the

    Court by Defendant indicating certain alibi issues not addressed in the No-Merit Letter,

    the Court granted Attorney Andrews an extension to file an amended PCRA petition

    based on facts contained in the correspondence and upon further review with Defendant.

          Attorney Andrews filed an amended PCRA petition on June 30, 2016. A hearing

    was held on November 15, 2016 to determine the merits of the petition.

    FACTUAL HISTORY:

          The evidence presented at trial established the following:                        Anthony ("Tony")

    Henderson and Noelle Richards were a young couple residing on Fox Road in

    Washington Township, Westmoreland County.                         The property was rural and not

    immediately accessible from SR 66, the nearest main road. On August 28, 2011, at

approximately 8:00 p.m., Tony and Noelle drove to Dairy Queen in nearby Delmont to

purchase food and an ice cream cake. (TT 422-3 7, 1024-25). They left the restaurant and
                                                           1



traveled back to their home at 8:08 p.m. (TT 1025).

          At approximately 8:30 p.m., Michael DiVincenzo, Greg DiVincenzo and Sam

Denillo traveled to Tony and Noelle's house to purchase marijuana from Tony. Michael



1
 Numerals in parenthesis preceded by the letters "TT" refer to specific pages of the transcript of the trial of this
matter, held September 9-13 and 16-18, 2013 before this Court, and made a part of the record herein.


                                                         2
                                                        1 Oa
     testified that Sam Denillo drove the three of them to Washington Township in his black

     Jeep.    Michael testified that on a prior occasion the gate at the top of the lengthy

     driveway had been closed. On this trip, however, the gate was already open, and they

    · proceeded directly down the driveway to the rear of the house. (TT 81-88, 178).

             Michael DiVincenzo and Denillo approached the sliding glass doors near the back

    patio and knocked, but neither Tony nor Noelle answered the door. He noticed light

    emanating from a television but because the sliding glass door was covered by vertical

    shades, he could not determine whether anyone was inside. (TI 89-90).                  Michael

    continued to knock at the sliding glass door, and also checked around the perimeter of the

    house to try to locate Tony. He decided to call Paul Hoover, who also resided at the

    location, to see if he knew whether Tony was home. As he was speaking with Hoover, he

    noticed that someone was approaching the door from inside the home. (TI 90-92). The

    sliding glass door opened, and an unfamiliar man emerged brandishing a baseball bat.2

    He immediately swung the baseball bat and hit Sam Denillo on the side of his head.

    Denillo fell to the ground. The man then started toward Gregory DiVincenzo, swinging

the bat at him as well. Gregory was able to block the blow with his arm. Michael told him

that they would leave the residence, but the man chased after Michael, who ran to escape

from him. The individual with the bat gave up the chase after a short time, and went back

inside the house. Intending to flee the area, Michael and Gregory DiVincenzo managed to

help Sam Denillo back into the vehicle. Michael realized that he had lost his cell phone.

Gregory dialed Michael's number on his own phone in an attempt to locate it. Michael

2
    Michael DiVincenzo described the bat as beingyellow and somewhat pinkish on the end.
                                                   11 a
  then noticed that the man had come back outside the house and was laying flat on his

 stomach as if he was searching for something. He stood up, and Michael could hear what

 sounded like his cell phone ringing from an area near the man's midsection. Michael

 asked the man to toss him his cell phone, and stated that they would leave thereafter, but

 the man stared at him blankly. (TT 92-100, 183-89).

        The trio left the Henderson property, driving on Fox Road toward its intersection

 with SR 66, while Gregory DiVincenzo called 9-1-1 from the vehicle to summon medical

 help for Sam Denillo. The call was received by Westmoreland 9-1-1 at 8:44 p.m. (TT

 1024). Denillo was groggy and bleeding from his mouth. While they were waiting for

 the police and an ambulance, a dark colored Jeep Grand Cherokee drove past them at a

high rate of speed, made a left tum onto SR 66 without stopping at the stop sign, and

drove toward Delmont. Believing it to be the same person who had assaulted them,

Gregory DiVincenzo called 9- 1-1 again and reported his observations about the vehicle.

(TT 101-03, 190-93). The second call was received by Westmoreland 9-1-1 at 8:49 p.m.

(TT 1024). Denillo was flown by medical helicopter to Allegheny General Hospital in

Pittsburgh, where he was admitted for three days, underwent surgery for a broken jaw,

and was treated for a concussion and bleeding in his ear. (TT 156-67).

      Michael DiVincenzo later identified Defendant from a series of photos as the bat-

wielding individual who attempted to assault him and his brother, and who assaulted Sam

Denillo. Sam Denillo had little or no memory of the events. Gregory DiVincenzo was

unable to positively identify Defendant's photograph from the series of photos shown to



                                    12a
                                           4
  him by the police, but he was able to make a positive identification at the preliminary

  hearing and at trial. (TT 110-12, 157-69, 193-95).

        As the DiVincenzo brothers and Sam Denillo were waiting on the side of Fox

 Road for an ambulance, Corey Lutz and his friend Joe Giarusso, in separate vehicles,

 were turning from SR 66 onto Fox Road on their way to Anthony Henderson's house.

 Lutz noticed the three men in the Jeep parked at the intersection. (262-65, 275-76).

 When Lutz arrived at the Henderson home, he first noticed that the gate at the top of the

 driveway was not locked as it customarily was, and that it appeared to be damaged.

 When he reached the rear of the house, he noticed that the grill had been overturned in

 the driveway, furniture was out of place, there were broken items on the patio, and the

sliding glass door was open. (TT 265-269).

       Lutz entered into the house through the sliding glass door and discovered the

bodies of Anthony Henderson and Noelle Richards in the finished basement living area.

(TT 270- 72, 284-86).     Lutz indicated that he believed that Noelle might have been

breathing slightly, but that she would not respond to him. He observed that she had blood

on her head and was slumped over on the couch.             He related that he saw Tony

Henderson's body lying on the floor by the coffee table in front of the fireplace in a large

pool of blood. (TI 270- 74).    The food from Dairy Queen was still on the coffee table,

and Lutz recalled that he could smell "fresh food, like, a hamburger with a bite taken out

of it, a thing of French fries that wasn't even dipped into the ketchup yet. .. I remember

looking down and noticing that they didn't even get to eat." (TT 273). He immediately

called 9-1-1; the police received the dispatch while they were assisting the DiVincenzos
  and Sam Denillo at the intersection of Fox Road and SR 66. (TT 106-07). Lutz's call

 was received by Westmoreland 9-1-1 at 8:56 p.m. (TT 1024).

        Forensic Pathologist Dr. Cyril Wecht testified that Tony Henderson had sustained

 three gunshot wounds-two to his head and one to his forearm-and also had a multitude

 of wounds to his head that suggested he had been beaten with some sort of instrument

 with blunt force. (TT 611-25). Indeed, Dr. Wecht testified that the injuries suggested that

 he had received repeated blows, administered with substantial force, to the back of his

 head, consistent with the use of a baseball bat as the weapon. (TT 643-44). Dr. Wecht

 opined that these injuries would not have necessarily been fatal had Tony Henderson

received prompt medical intervention and neurological treatment. (TT 629-30).           Dr.

Wecht explained that the cause of death would have been "the multiplicity of all injuries

producing an adverse effect ... the two gunshot wounds of the head would have been the

major injuries contributed to by the multiple lacerations leading to loss of blood and

thereby hastening the development of shock and death." (TT 631).

       Dr. Wecht also performed an autopsy on the body of Noelle Richards. Dr. Wecht

explained that she had also sustained three gunshot wounds, all to her head, as well as a

laceration around her right ear that was caused by blunt force instrumentality, (TT 633-

40). He opined that Noelle would have died within thirty minutes .of sustaining the fatal

gunshot wounds to the head. (TT 640). Dr. Wecht testified that Noelle Richards' cause of

death was "the three gunshot wounds of the head and face with some contribution from

the laceration caused by a blunt force instrument of some kind in the right temporal



                                         14a
                                            6
                                                                           .:... ,·..   ,;.-·� , ..   ;



h
fl
j

'i
I
      region. AU of those producing that trans-sellar fracture would have been the cause of her

      death." (TT 640-41 ).

            During the initial investigation into the deaths of Anthony Henderson and Noelle

     Richards, law enforcement had no suspects, as neither DiVincenzo brother nor Sam

     Denillo knew the identity of the bat-wielding man who attacked them. However, on

     August 29, 2011, Anna Stouffer found a black tri-fold wallet on the ground to the rear of

     her van, which was parked on the street outside her residence at 221 Church Street in

     Ligonier Borough. She knew that the vehicle parked there the night before was associated

     with the residents of 217 Church Street. (TT 656-59, 671). Ms. Stouffer looked inside

     the wallet in an attempt to identify the owner, and saw that the license belonged to

     Anthony James Henderson. She then took the wallet to the Ligonier Borough Police

     Department at 2:25 p.m. (TT 659-67).

            Jeremy Springer, who worked with Defendant and his brother, Jay, testified that

     on August 28, 2011, Defendant had assisted him in removing a roof at his residence.

     Defendant arrived at approximately 7:00 a.m. in a green Jeep, and his brother arrived

     separately. As they worked on Springer's roof, Defendant kept receiving text messages

     on his cell phone. When asked who was contacting him, he stated it was his "guy from

     Delmont." (TI 957). Springer recalled that after Defendant had left for the day, he texted

     Defendant around 7 :00 p.m. to thank him for helping with the roof. He noted that he did

     not receive a prompt response as usual, and did not receive another text from Defendant

     until approximately 9:45 p.m. (TT 955-59).
          Springer also related that the next day, on August 29, 2011, Hall reported for work

   as usual. Over the lunch break, when Springer and Defendant were eating, Defendant

  began telling Springer what had happened to him the night prior, and stated, "You won't

  believe what happened to me last night." (TT 962). Defendant proceeded to tell Springer

  that he had gone to see his friend in Delmont, and that when he arrived, there were two

  dead people in the house. He said that he had gone to the back door when he did not

 receive a response to his knocking at the front door. He then walked into the back door

 and saw Tony on the floor with what he thought was a gunshot wound, and Tony's

 girlfriend lying on the couch with dried blood on the side of her face.

        Defendant told Springer that he was afraid that the intruder was still in the

 vicinity, so he locked the back door. He then stated that he heard a car drive up, was

 afraid, and decided to hide inside the home. He told Springer that he heard Tony's phone

 ringing, and as he was hiding, happened upon a baseball bat that was lying on the ground.

He stated that he picked up the bat, unlocked the door, and greeted the men he saw at the

back door. Defendant told Springer that he thought he could get away, so he came out

swinging the bat and thought he hit the bigger man in the head. He related that the men

scattered, and he grabbed what one of them dropped and ran back inside the house.

Defendant told Springer that he also grabbed Tony's phone and wallet. (IT 962-69).

       Defendant told Springer that he left the house and drove toward Ligonier. He

stated that on his way, he stopped at Donegal Lake, removed the batteries from the two

cell phones that he had taken from the house, and threw them into the lake. He did this,

he said, because he had seen on television that if the battery was removed from a phone,


                                          168
  the phone could not be traced. He also informed Springer that he had removed all of his

  clothing, including his shoes, had thrown them and the wallet into a garbage bag, and

 discarded them at a dumpster behind a methadone clinic. He also related that he stopped

 at Walmart on the way home to buy Clorox and wiped his Jeep down in case there were

 any blood traces from his shoes or the clothing he had been wearing. He stated that he

 still had the bat, but days· later told Springer that he had thrown it into the woods.

 Springer urged Defendant to speak with law enforcement, but Defendant stated that he

 wanted to wait to do that. (TI 969- 78).   Jeremy Springer testified that, after consulting

 with his attorney and telling her what Defendant had revealed to him, he contacted the

 County Detectives Bureau and told them about Defendant's story.

       Law enforcement verified that Defendant had visited the methadone clinic on

Monday, August 29,        2011   at approximately 5:43      a.m.   (TT 1002-03).       The

Commonwealth also presented video footage from the Latrobe Walmart, showing that

Defendant visited that store at approximately 6:24 a.m., purchased cleaning materials,

and extensively cleaned his car in the parking lot. (TI 895-910). The bottle of Soft Scrub

cleanser that Defendant purchased was recovered in a search of the Jeep Cherokee that

was driven by Defendant on the night of August 28, 2011. (TT 682-84). Also recovered

from the Jeep were numerous blood samples, which were later matched through DNA

analysis to Sam Denillo and Anthony Henderson. (TT 733-41). Analysis of text messages

on Defendant's phone indicated that he had borrowed a 9mm Taurus firearm from his

mother and had discarded it after the murders. (TT 1018-20). Analysis of the bullet




                                        17a9
                                                                             i-<:·.,: ;·.':; ·.- �-:: .'..:·   >�.'_.· -�· :: ;:� . . �:           �·:.-\\i;_.:,-�··�):�; �-.{.-{:):�::�});}.�i�:.-_(�:;-:,\;�,:�����. {,;�{:)f: ?.�-�(ti   �:�-f���\:i·:·:-::�>\j.�f:"trl_ f:._ �-..__;.:�'-.   i-.
                                                                                                                                                                                                                                                                                            �t-'- .




                                                                                                                                                                                                                                                                                                 •
                                                                                                                                       0·::.�-:.




                                                                                                                                                                                                                                                                                           .
                                                                   .• - s:




                                                                                                                                                                                       ·
           '.,l; .• ·. .:·. ,-_ ·. ». • ·� •••, �
                                                 ..... 7. ··.. '                                                                                                                                                                                                                                ..•




                                                                                                                                                                                                                                                                                    _
                                                                                                                                                                                                   it�tL<iti�n

   casings and fragment, reco;e,cd at the scene �f
                                                                                                                    the.
                                                                                                                              murder                     ;ndi��;iI\fif                                                                                   ·                ;;;.. " ..

  used was 9mm ammunition, likely used in a 9mm automatic firearm. (TT 800-01 ).

        Defendant maintained that he had gone to Anthony Henderson's home to purchase

  drugs, and that when he arrived at Tony's driveway, he was nearly run off the driveway

  by a large dark SUV/truck coming in the opposite direction. (TI 1100-01 ). When he

 approached the back door, he noted that the dog was sniffing at something in the

 driveway. He saw it was a wallet, and picked it up. He also picked up a cell phone that

 was on the ground. He noted that the patio area was in disarray. (TI 1103-06). He

 averred that he then entered-the house and discovered the bodies of Noelle Richards and

 Tony Henderson. He observed that a vehicle had arrived at the house, and "guys started

 pouring out of it." (TT 1113). He locked the back door, thinking that the people who

 had murdered Tony and Noelle had come back for him. He found a baseball bat at the

 end of the couch and decided to attack these individuals. He swung the bat at these

individuals, hitting two of them. When he had chased them away, he searched the ground

for a gun, and picked up something hard.

       He went back inside the house until these men left, and then departed, taking the

cell phone, wallet, and bat with him. (TI 1113-20). He testified that he gave no thought

whatsoever to calling the police. (TT 1120). He testified that he drove back to Ligonier,

and when he was on SR 30, he threw the bat and the cell phones out the window. (TT

1123-24). When he arrived home, he took a shower and discarded his clothing in a trash

can that had been placed by the curb to be picked up in the morning. Defendant testified

that he woke early the next morning for work, went to the methadone clinic in


                                                                             18a10
  Greensburg, and then stopped at Walman in Latrobe so he could clean up the Jeep.

  Defendant stated that he had thrown up in the Jeep the night before> and needed to clean

 the vehicle before picking his brother up for work. (TT 1123-30).            Defendant also

 admitted that he had thrown away the 9mm Taurus handgun that he had borrowed from

 his mother so that the police would not find it. (TT 1135-38, 1204-12).

 ELIGIBILITY FOR RELIEF:

        The requirements for eligibility for relief under the Post-Conviction Relief Act are

 set forth both in the Act itself (42 Pa.C.S. §9541, et. seq.) and in the Rules of Criminal

 Procedure (Pa.R. Crim.P. Rules 901 and 902). Generally speaking,

            PCRA petitioners, to be eligible for relief, must, inter alia, plead and
           prove their assertions by a preponderance of the evidence. Section
           9543(a). Inherent in this pleading and proof requirement is that the
           petitioner must not only state what his issues are, but also he must
           demonstrate in his pleadings and briefs how the issues will be
          proved. Moreover, allegations of constitutional violation or of
           ineffectiveness of counsel must be discussed "in the circumstances
           of the case." Section 9543(a)(2)(i-ii). Additionally, the petitioner
          must establish by a preponderance of evidence that because of the
          alleged constitutional violation or ineffectiveness, "no reliable
          adjudication of guilt or innocence could have taken place." Section
          9543(a)(2)(i-ii). Finally, petitioner must plead and prove that the
          issue has not been waived or finally litigated, §9543(a)(3), and if the
          issue has not been litigated earlier, the petitioner must plead and
          prove that the failure to litigate "could not have been the result of
          any rational, strategic or tactical decision by counsel." Section
          9543(a)(4).
          Comm. v. Rivers, 786 A.2d 923, 927 (Pa. 2001).

      Additionally, because Defendant has raised an allegation of ineffective assistance

of counsel, he must plead and prove, by a preponderance of the evidence:

          (1) that there is merit to the underlying claim; (2) that counsel had no
          reasonable basis for his or her course of conduct; and (3) that there is


                                       1 q;i   11
                 a reasonable probability that, but for the act or omission challenged,
                 the outcome of the proceeding would have been different. Comm. v.
                Jones, 683 A.2d 1181, 1188 (Pa. 1996). Counsel is presumed to be
                effective and Appellant has the burden of proving otherwise. Comm.
                v. Marshall, 633 A.2d 1100 (Pa. 1993). Additionally, counsel cannot
                be considered ineffective for failing to raise a claim that is without
                merit. Comm. v. Peterkin, 649 A.2d 121 (Pa. 1994).
                ta, citing Comm. v. Holloway, 739 A.2d 1039, 1044 (Pa. 1999).

           Defendant's sole contention is that trial counsel, Michael Dernatt, Esq., was

    ineffective for failing to call Defendant's mother, Deborah Finley, as a witness.

    Defendant avers that had she been called to testify, she would have stated that she loaned

    her son the gun-identified as the murder weapon at trial-at least two days after the

    murders occurred. Defendant initially presented two other arguments in his petition, but

    formally withdrew them at the evidentiary hearing. (PT 29).3

           1.    WAS TRIAL COUNSEL INEFFECTIVE FOR FAILING TO CALL
                 DEBORAH FINLEY AS A WITNESS?

           When raising a failure to call a potential witness claim, the PCRA petitioner

    satisfies the reasonable basis and prejudice requirements of the ineffectiveness of counsel

    test by establishing that: (I) the witness existed; (2) the witness was available to testify

    for the defense; (3) counsel knew of, or should have known of, the existence of the

witness; (4) the witness was willing to testify for the defense; and (5) the absence of the

testimony of the witness was so prejudicial as to have denied the defendant a fair trial.

Comm. v. Washington, 927 A.2d 586, 599 (Pa. 2007). To demonstrate prejudice,

Defendant "must show how the uncalled witnesses' testimony would have been beneficial


3
   Numerals in parenthesis preceded by the letters "PT" refer to specific pages of the transcript of the PCRA hearing
in this matter, held November J 5, 2016 before this Court, and made a part of the record herein.


                                                  20a 12
  under the circumstances of the case." Comm. v. Gibson, 951 A.2d 1110, 1134 (Pa. 2008);

  see also Comm. v. Chmiel, 889 A.2d 501, 546 (Pa. 2005).

          Trial counsel will not be found ineffective for failing to investigate or call a

 witness unless there is some showing by Defendant that the witness's testimony would

 have been helpful to the defense. Comm. v. Brown, 767 A.2d 576, 582 (Pa.Super. 2001);

 see also Comm. v. Sneed, 45 A.3d 1096, 1108-09 (Pa.Super. 2013). Failure to call a

 certain witness "is not per se ineffective assistance of counsel for such decision usually

 involves matters of trial strategy." Sneed, 45 A.3d at 1108-09. Thus, it is Defendant's

 burden to demonstrate that trial counsel had no reasonable basis for declining to call

 Finley as a witness. Comm. v. Washington, 927 A.2d 586, 599 (Pa. 2007).

         Evidence presented at trial established that the Taurus 9.mm handgun was loaned

to Defendant by his mother, Deborah Finley. Larry Lipton, records manager at Gander

Mountain, testified that on September 2, 2009, Charles Finley (Defendant's stepfather)

purchased a Taurus PT709 Slim at their Greensburg store. (TT 863-64). Charles Finley

died on June 30, �011. (TI 882).

         The Commonwealth introduced text messages between Defendant and his mother

concerning the handgun. On September 3, 2011, Deborah Finley sent a text message to

Defendant reading, "I need my gun back. I found case for it." (TI 1202). Defendant

replied on September 7, 2011, "Next time I go to Greensburg I'll get your gun out of

Carly's dad's safe for ya. We put it there before the move so it wouldn't get lost." (TI

1202).
        Further, on September 13, 2011, the following text message exchanged occurred

  between Defendant and his mother:

                Finley: Where was my gun from time you first took it.
                Finley: Why won't you answer me. Who had my gun in their
              · hands besides you.
                Defendant: Mom, I have to wait now before I tell anyone
                anything. I have nothing to hide, but everything can be used
                against me now.
                Finley: You let someone borrow my gun didn 't you.
                Defendant: Your gun did not do anything.
               Finley: Okay.
               Defendant: ICs just a coincidence, and they want to clear it
               for sure.
               Finley: Okay.
               Defendant: I had more to tell you that day, but after you
               contacted [Officer) Amber [Noel] I knew I couldn't tell you
               anything else ... For our safety.
               Finley: Because my loved ones and dear friends are being
               drug into this dammit so if you know something spill it and
              end it.
              Defendant: They shouldn't have been in the first place.
              Finley: Well, they are all now because you did a dumb thing
             by throwing my gun away so don't blame me. I trusted you to
             be responsible with it and I was not getting in trouble for my
             gun being out in some field to be used in a crime or to hurt
             someone.
             Defendant: Well, I have the police breathing down my beck,
             probably trying to give me the death penalty if they get a
             chance because I'm the next best thing.
             Defendant: The police aren't my friends. I don't trust them.
             (TT 1018-20).

      Defendant testified at trial that he borrowed the gun from his mother after the

murders. He stated:

             Defendant: [A]fter the incident, after the night of the
             murders, the next day I was really paranoid about being able
             - those guys being able to find me so I went and bought locks
             for my house. I probably put three or four padlocks on my
             front door and another two or three padlocks on my back
                     .. - ..·   :.   - ...   ·. ;." �



                                                                  ' .•   <, ·.. .-·-�··" ·-

                door. I was still not comfortable with ·the· security·· bf th�· .
                apartment. At night I would leave things in the .hallwaysoI
                could hear somebody falling over in case they tried to do
                something. I wasn't sleeping too well. I went to my mom's.
               My grandmother was over there. I'm pretty sure it was the
               Tuesday after -
               Attorney DeMatt: So within a day or so ...
               Defendant: ... of September 1st.
               (TT 1134).

         He further testified that approximately one week after September 1, Westmoreland

 County Detectives executed a search warrant on his residence. (TT 1135). He stated that

 the handgun was in his residence at that time, "in a case under a vent." (TT 1135). He

 testified:

               Defendant: There was a vent cover and it was sitting
               underneath that in the dining room. I was on probation. There
               was alcohol in the refrigerator and I thought I'm going to jail
               until I help them or do something because Detective Weaver
               sat down with me and I told him that I wanted a lawyer so he
               asked me if I could please help him in any way ... (TT 1135-
               36).

He stated that detectives did not locate the handgun during their search. (TT 1136). He

stated that as soon as they left, he retrieved the gun, put it in a plastic bag, and placed it in

the neighbor's garbage can. (TT 1137). He noted that the garbage was to be picked up the

next morning. (TT 1137). He relayed that he meant to retrieve the handgun from the

garbage can in the morning, but that the garbage had already been picked up. (TT 1137).

       At the evidentiary hearing for the instant PCRA petition, Finley testified that she

loaned her son the handgun on August 30, 2011. She testified that several months after

the crime, she checked her desk calendar to determine whether she had noted the date in

question on the calendar. She stated:
                                                ·�. . .




               Finley: Sometime later I had gone to work and every month
               we keep a calendar, a desk calendar on our desks, a blotter,
               and I always would write things down so I didn't forget about
              it. By chance I thought to look at them. We kept them in a
              cabinet in our office, and I pulled out the calendar for that
              year and looked back to the date and I had written it down.
              (PT 6).

The desk calendar was introduced into evidence. Attorney Andrews then inquired as to

why it occurred to Finley to reference the calendars:

              Attorney Andrews: And you indicated I believe previously
              that something on that calendar refreshed your memory or
              made you remember the day in which you loaned the weapon
              that you discussed, the Taurus, to your son. What on that
              calendar refreshed your memory of that?
              Finley: The date. I was at home thinking about it and I
             thought - I remembered the date of the murders ... I thought
             to go to work and to look - by chance look at this calendar to
             see if I might have written something down.
             Attorney Andrews: And did you write anything down on the
             30th?
             Finley: Yes, I did ... I have on there what was going on for
             the day at my job, but I had also wrote down that [Defendant]
             borrowed the gun from me that day.
             Attorney Andrews: Did you write anything on the 28th, the
             date the murders took place?
             Finley: Yes, I marked that day when I found out about the
             murders.
            Attorney Andrews: Now, obviously, ma'am, there is nothing
            on there to indicate whether you wrote that down on August
            30, 2011, or whether you wrote that down five months later,
            ten months later, or yesterday, right?
            Finley: No.
            Attorney Andrews: But it's your testimony that you wrote
            that down on August 30, 2011 just to mark the date that you
            loaned your son this weapon?
            Finley: Yes
            (PT 8-10).




                                        241\6
                                                            ·,)'·'   ;·,.·.,.-.·:·   :.,·.,·;···.




        She also testified that she never informed Attorney DeMatt of her discovery. She

 did state that she informed Defendant prior to trial that she would be available as a

 witness to testify about the date she loaned him the handgun. (PT 10). Under cross-

examination by District Attorney John Peck, she stated her reasons for not specifically

informing Attorney Dematt about her knowledge of the date in question. Peck inquired:

               District Attorney: So why didn't you tell Mr. DeMatt, since
              you knew that the Commonwealth was hying to establish the
              murder was committed with a 9mm weapon, that your son
              had a 9mm weapon and that the implication would be that he
              has killed them with that gun that you had given him, that you
              didn't give him the gun because you had it until August 30th?
              Finley: I didn't tell him because I assumed that [Defendant]
              had updated him and told him about it.
              District Attorney: Did [Defendant] know about this calendar
              that you kept?
              Finley: No, he did not.
              (PT 19).

      Peck also inquired as to why Finley had written down the date of the murders on

her desk calendar:

             District Attorney: My question is, for some reason you also
              write the word murders on August 28?
              Finley: Yes.
              District Attorney: You didn't know who the victims were,
              did you?
             Finley: No.
             District Attorney: But somehow you related the gun to the
             murders?
             Finley: No.
             District Attorney: Well, why did you write on the same date
             murders and [Defendant] borrowed the gun -
             Finley: I don't know.
             District Attorney: If you didn't think they were related?
             Finley: I don't know.
             (PT 23).

                                       25a
                                          17
                                                                     ·   .....
                                                                         ·:·



           Peck noted that Finley had been interviewed by Detectives Terrance Kuhns and

  Robert Weaver soon after the crime. Finley informed them that her husband died on June

  30, 2011, and that she had loaned her son the Taurus 9mm handgun approximately one

 month later. (PT 24). Finley denied making the statement. (PT 24). Peck also asked

 whether she recalled the date that she told Officer Amber Noel she loaned Defendant the

 handgun; she stated that she did not recall. (PT 25). Officer Noel's report stated that

 Finley provided Defendant with the handgun approximately two weeks before September

 8, 2011, a date prior to the murders. (PT 46-47).

        Finley then testified that she had discovered the desk calendar in March 2012,

 more than one year before the trial. (PT 19-20). When asked again by District Attorney

 Peck why she did not bring the evidence forward to Attorney DeMatt, she stated: HI

didn't believe at trial it was stated that weapon could have, you know, done anything."

(PT 20).

       Defendant testified at the evidentiary hearing that he had borrowed the Taurus

9rnm handgun from his mother on August 30, 2011. (PT 28). He stated that he informed

trial counsel that his mother would be available to testify that she had loaned him the

handgun on that date. (PT 28).

       Attorney DeMatt testified that while Defendant told him that he had not received

the handgun from his mother until after the crime occurred, he was unsure if Defendant

specifically identified his mother as a potential witness to bolster his claim. (PT 43).

DeMatt, testified, however, that:
,
                ,. _
                .

        .
            .
                                                                          ..                             .· ·..
    .
'.t
                                        Attorney DeMa tt: I know I had several cq1i�ersations' with-     · .
:f
I
l                                      Ms. Finley during my representation of [Defendant] about a
                                       number of different issues and my recollection of what was
                                       contained in discovery was that she had indicated to the
                                       police, in particular I believe it was Amber Noel, that she had
                                       given the gun to [Defendant] at some time prior to the
                                      homicide so I didn't feel that it would - she would have been
                                      a good witness to call so I never really even approached that -
                                      approached her regarding testifying at trial.
                                      Attorney Andrews: So then, based upon your review of the
                                      police reports of Officer Noel, you were concerned and
                                      determined not to call Ms. Finley as a witness for fear that the
                                      testimony of the officer regarding her statements about when
                                      her son got the handgun would be discredited?
                                      Attorney DeMatt: My concern was that it would blow up in
                                      our face, because as his mother she was obviously a biased
                                     witness. And then to have police reports that would be
                                      contradicting what she says before a jury, which you can very
                                     easily be cross-examined on and impeached on, I had grave
                                     concerns about that so I saw no reason to call her as a
                                     witness.
                                     Attorney Andrews: And were you aware at all about this
                                     calendar that she kept and made notes on?
                                     Attorney DeMatt: The first time I ever heard anything about
                                     it was this morning when she mentioned it.
                                     (PT 44-45).

                              Although the testimony presented at the evidentiary hearing established that Finley

                       was an available witness, that she would have testified for the defense, and that defense

                       counsel may have known of her existence regarding her testimony (excluding the desk

                       calendar), the absence of her testimony was not prejudicial to Defendant. Indeed,

                       Attorney DeMatt noted his reasons for not calling Deborah Finley as a witness. Because

                       of discovery tending to prove that Finley had informed officers that she had loaned

                       Defendant the handgun months or weeks before the murders, and the fact that she would
              ,
              &



              �
                                                                                                       ,.'··:..:·:.··;··




          t
          t
          I
                    appear to be a biased witness, DeMatt was concerned that such testimony would "blow
          I
                   up in our face." (PT 45).
      (
      )

      '
      i
      I
      !


                          This Court further finds that Attorney Delvlatt's testimony was highly credible. As

                   he noted, Finley could easily have been impeached with her statements to officers, and

                   Attorney DeMatt determined that based on these inconsistent statements, her testimony

                   would not be in his client's best interest. Defense counsel's decision represents a trial

                   strategy as outlined in cases such as Comm. v. Sneed, 45 A.3d 1096, p08-09 (Pa.Super.

                   2013). DeMatt noted that he met with Finley in person approximately three to five times,
                                                                                         I


                   and spoke with her on the telephone approximately a dozen times. (PT 45-46). While he

                  was unsure if Finley unequivocally stated that she had loaned her son the handgun before

                   the murders, he testified that Defendant informed him of this fact. (PT 46). Finley also

                  testified that she never informed DeMatt about the existence of the desk calendar, and
.,
.·;



                  DeMatt confirmed that fact in his own testimony. (PT 19, 45). Thus, DeMatt made a

                  conscious decision, based on the information available to him, that Finley would not be a

                  reliable witness.

                         Conversely, this Court finds that Deborah Finley was not a credible witness. It

                  finds troublesome the fact that Finley wrote "murders" on her calendar two days before

                  her entry that states that she loaned Defendant the handgun. At thetime, she did not know

                  the victims of the crime, nor was she aware that any connection existed between the two

                  events. When District Attorney Peck inquired as to when Finley wrote "murders," she

                  stated: "I think I wrote it at the same time that I wrote that the gun - about the gun so I

                  could remember." (PT 22). Finley also denied informing officers that she loaned her son


                                                           28gQ
                                                                                             -----·-
      . ·.· .   . ,;:.

                                                                                                �· .. ·.·   ..


 the handgun prior to the murders, although her statements were con�iried in police

reports. (PT 24). Finley testified that while she was present for every day of the trial, she

did not recall hearing certain evidence linking her son to the Taurus 9mm, and did not

feel that her testimony regarding the existence of the desk calendar would be helpful to

Defendant at trial. (PT 17, 20).

         Defendant, then, has not met his burden in establishing that there was no

reasonable basis for failing to call Finley as a witness. Finley's incongruous statements to

officers and the Court do not reflect that her testimony would have been beneficial for

Defendant, and Attorney DeMatt had a reasonable basis for not producing her as a

witness at trial. Based on the testimony and claims discussed, supra, Attorney DeMatt

was not ineffective as a result of this determination, and Defendant's claim must fail.
                           NOTICE OF INTENT TO DISMISS:

        Accordingly, the Court hereby notifies the parties of its intention to dismiss

 Defendant's amended post-conviction petition.

        THE DEFENDANT MAY FILE A WRITTEN RESPONSE TO THIS

 NOTICE. SUCH A RESPONSE MUST BE FILED WITHIN 20 DAYS FROM

 THE DATE OF TIDS NOTICE. IF NO RESPONSE IS FILED, TIDS COURT

 SHALL DISMISS THE PETITION.

        If a response is filed, this Court may, instead, upon consideration of the response,

grant leave to file an amended petition or otherwise direct that the proceedings continue.

Any response should address specifically the areas of defect delineated within the body

of this Order of Court.

       If no response is filed, the Court shall dismiss the Defendant's PCRA Petition. If

a response is filed, the Court may, upon consideration of the response, dismiss the

Petition, grant leave to file an amended Petition or otherwise direct that the proceedings

continue.

       Defendant may, if he chooses, avail himself of the assistance of PCRA counsel in

the preparation of this response, or he may elect to file the required response pro-se.




                                 ·��
                                  · = 2zv,,3!�
                                           futa Donovan Hathaway, Judge
                                                                                          e,/


                                              30a
