J-S30001-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                            Appellee

                       v.

CHAPEL THOMPSON,

                            Appellant               No. 1531 MDA 2016


                  Appeal from the PCRA Order August 22, 2016
               In the Court of Common Pleas of Lancaster County
              Criminal Division at No(s): CP-36-CR-0001547-2012


BEFORE: SHOGAN, RANSOM, and MUSMANNO, JJ.

MEMORANDUM BY SHOGAN, J.:                             FILED JULY 18, 2017

       Chapel Thompson (“Appellant”) appeals from the order denying his

petition for relief filed pursuant to the Post Conviction Relief Act (“PCRA”),

42 Pa.C.S. §§ 9541-9546, following his convictions for robbery, kidnapping,

conspiracy, theft by extortion, and unlawful restraint.1 We affirm.

       The PCRA Court set forth the following factual and procedural

background:

       On December 18, 2011, Leroy Freeman went to the Lancaster
       City Bureau of Police to report that he had been forced at
       gunpoint on three separate occasions to give money to
       [Appellant] and his coconspirators, Aaron Robinson and Lennell
       Preston.     Specifically, on December 11, 2011, all three
       individuals came into Freeman’s place of business, a barber shop
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1
    18 Pa.C.S. § 3701(a)(1)(ii), 18 Pa.C.S. § 2901(a)(2), 18 Pa.C.S.
§ 903(a)(1),18 Pa.C.S. § 3923(a)(1), and 18 Pa.C.S. § 2902(a)(1),
respectively.
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     in the City of Lancaster, and demanded $5,000.00. Freeman
     was forced into the rear of the shop and handcuffed to a pipe.
     The victim’s money and identification were taken; a gun was
     brandished, and his life was threatened. Freeman told the co-
     defendants that he only had $1,500.00 in his bank account at
     that time.

           Freeman was eventually forced to travel to a bank
     automated teller machine outside the City, where the daily
     maximum withdrawal amount of $500.00 was removed from the
     victim’s account and taken by [Appellant] and his co-
     conspirators. The co-defendants told Freeman they would return
     the next day for the remainder of the $1,500.00, and
     [Appellant] told Freeman if he did not come up with money “it
     could get fatal.”

           On December 12, 2011, [Appellant] appeared at the
     victim’s place of business, demanding the remainder of the
     money. Freeman had only been able to remove $500.00 from
     the ATM that day because he did not have his identification
     which had been stolen from him the night before. [Appellant]
     left and returned with Freeman’s identification and forced the
     victim to go with him to the bank to withdraw additional funds
     from his account.

           The third incident occurred on December 18, 2011, and
     involved only co-defendant Aaron Robinson. After returning to
     the shop, Robinson demanded money and proceeded to assault
     Freeman and threaten him with a firearm. He allowed Freeman
     15 minutes to obtain additional money “or he was going to
     shoot [Freeman].” After Robinson left the shop, Freeman got in
     his car and, instead of going to the bank, he went to the police
     to report the robberies and kidnap[p]ings.

           As a result, on December 27, 2011, the Commonwealth
     charged [Appellant] and his co-defendants Robinson and
     Preston with three counts of robbery, two counts of
     kidnap[p]ing to facilitate a felony, criminal conspiracy, theft by
     extortion, and unlawful restraint/risking serious injury based on
     these armed robberies involving Freeman that took place
     between December 12 and December 18, 2011. [Appellant] was
     ultimately arrested on January 4, 2012.

                                   * * *

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            On January 9, 2013, a motion in limine was filed in which
     [Appellant] requested the Court preclude the admission of a
     number of items seized from his house on January 4, 2012, at
     the time of his arrest, particularly two handguns, a Glock and a
     Makarov, along with a set of handcuffs. This motion was
     addressed at a pre-trial hearing held on January 14, 2013. Co-
     defendant Preston’s statement to the police put the Glock in
     [Appellant’s] hand and the handcuffs in his own during the
     course of one of the robberies. As such, [the trial court] ruled
     that the Glock handgun and handcuffs recovered from
     [Appellant’s] house were admissible evidence, but nothing else
     found at his home, including the Makarov, would be allowed in
     unless the door was opened. Trial counsel did not note an
     objection to this decision, and stated that he understood what
     the [c]ourt’s decision was. During this hearing, [Appellant’s]
     trial attorney also orally joined Robinson’s motion to sever the
     cases. I denied this motion and, on January 16, 2013, jury
     selection began for the joint trial.

            During the course of the trial, counsel for co-defendant
     Robinson cross examined the victim of the [kidnappings] and
     robberies regarding the gun that was used to facilitate the
     crimes. The victim testified that the handgun he observed was
     silver and brown. [Appellant’s] counsel thereafter conceded that
     the Makarov recovered in [Appellant’s] residence was a blued
     steel handgun with “distinctive” brown plastic grips. Therefore,
     the Commonwealth argued that the victim’s testimony opened
     the door to the admission of the Makarov as the description the
     victim provided was similar to that of the Makarov. Defense
     attorney Gratton objected to the admission of the evidence
     because the door had been opened for its admission by counsel
     for co-defendant Robinson, and not [Appellant]. [Appellant’s]
     objection was overruled and the Commonwealth was permitted
     to introduce the Makarov into evidence.

           Consequently,  the    Commonwealth      marked     both
     handguns—the Glock (Commonwealth Exhibit 6) and the
     Makarov (Commonwealth Exhibit 7)—and, at the conclusion of
     its case, moved for their admission, along with eight other
     exhibits.  Attorney Gratton had “[n]o objection” to the
     Commonwealth’s exhibits at that time. Trial counsel, however,
     did immediately thereafter request a mistrial due to the
     admission of the handguns, although he did not specifically


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        object to their actual admission.     This mistrial request was
        denied.

              At the close of the Commonwealth’s case, [the trial court]
        inquired into whether [Appellant] would be testifying. Trial
        counsel informed me that he did not have an answer yet from
        [Appellant]. Later, trial counsel stated that he did not have any
        witnesses on behalf of [Appellant]. Following a three-day trial,
        [Appellant] was found guilty of the robberies, kidnap[p]ings,
        and related offenses.

PCRA Court Opinion, 8/22/16, at 1–5 (footnotes and citations omitted).

        Appellant received an aggregate sentence of twenty-three to forty-six

years of incarceration and filed timely post-sentence motions, which the trial

court denied by opinion and order dated June 24, 2013. Appellant filed a

timely appeal to this Court, and we affirmed the judgment of sentence on

May 7, 2014.      Commonwealth v. Thompson, 104 A.3d 40, 1346 MDA

2013 (Pa.Super. filed May 7, 2014). Appellant filed a timely notice of appeal

to the Supreme Court of Pennsylvania which was denied on October 15,

2014.     Commonwealth v. Thompson, __ A.3d __, 391 MAL 2014 (Pa.

2014).     On January 11, 2016, Appellant filed the instant timely PCRA

petition. The PCRA court held a hearing regarding Appellant’s PCRA petition

on March 11, 2016. The PCRA court denied the PCRA petition, and Appellant

timely appealed to this Court.

        Appellant presents the following issues for our review:

        1. Whether appellate counsel was ineffective for failing to raise
           the admission of two firearms. The issue was preserved for
           appellate review and was even included in counsel’s 1925(b)
           statement.      [Appellant] was highly prejudiced by the
           admission of these firearms. Did the trial court err in holding
           that appellate counsel was not ineffective?

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      2. Whether trial counsel interfered with [Appellant’s] right to
         testify when trial counsel did not tell [Appellant] he has a
         right to testify, trial counsel told [Appellant] not to testify
         because he would not be convicted, counsel only met with
         [Appellant] to discuss his possibility of testifying in two short
         meetings, and there was no on-the-record colloquy regarding
         his decision?

Appellant’s Brief at 4.

      We will review an order dismissing a PCRA petition in the light most

favorable to the prevailing party at the PCRA level.      Commonwealth v.

Ford, 44 A.3d 1190, 1194 (Pa. Super. 2012). When reviewing the propriety

of an order denying PCRA relief, this Court is limited to determining whether

the evidence of record supports the conclusions of the PCRA court and

whether the ruling is free of legal error. Commonwealth v. Robinson, 139

A.3d 178, 185 (Pa. 2016).     The PCRA court’s finding will not be disturbed

unless there is no support for those findings in the certified record.

Commonwealth v. Lippert, 85 A.3d 1095, 1100 (Pa. Super. 2014).

      In his first issue, Appellant argues that the PCRA court erred when it

found that Appellant’s appellate counsel was not ineffective for failing to

raise and brief the trial court’s alleged error in the admission of the Glock

semi-automatic gun and the Makarov semi-automatic gun in his appeal to

the Superior Court. Appellant’s Brief at 16. Preliminarily, we note that when

reviewing a claim of ineffective assistance of counsel, “counsel is presumed

effective and will only be deemed ineffective if the petitioner demonstrates

counsel’s performance was deficient and he was prejudiced by that deficient

performance.”     Ford, 44 A.3d at 1194 (quoting Commonwealth v.


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Burkett, 5 A.3d 1260, 1271–1272 (Pa. Super. 2010)). The Supreme Court

of Pennsylvania set forth the following three-pronged test Appellant must

satisfy in order to prevail on his claim of ineffective assistance of counsel:

“(1) the underlying legal claim has arguable merit; (2) counsel had no

reasonable basis for his or her action or inaction; and (3) the petitioner

suffered prejudice because of counsel’s ineffectiveness.”     Commonwealth

v. Paddy, 15 A.3d 430, 442 (Pa. 2011).

      There are two guns at issue in this appeal, a Glock and a Makarov,

which were admitted into evidence as Commonwealth’s exhibits numbers six

and seven, respectively. N.T. (Trial), 1/17/13, at 230. Because the grounds

for their admissibility are different, we will discuss each gun separately.

      Turning first to the Glock, trial counsel filed a motion in limine seeking,

inter alia, to preclude admission of the Glock and a pair of handcuffs.

Appellant’s Motion in Limine, 1/9/13, at 1–2. At the pretrial hearing, while

discussing the motion in limine, trial counsel noted that “[o]ut of all the

things seized at the time of [Appellant’s] arrest, [the Glock and the

handcuffs] would be the only two things that in any way could arguably

relate to the offenses for which [Appellant] stands before Your Honor

prepared to go to trial.”   N.T. (Pretrial Hearing), 1/14/13, at 50.    He also

stated, “In any event, Your Honor, I do think the argument remains that the

most that should come in out of this extensive list of fire-arms related things

would be the Glock and the handcuffs.” Id. at 53. Further, we note that

when the trial court admitted the Glock as Commonwealth’s exhibit number

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six, trial counsel failed to lodge an objection to its admissibility. 2   N.T.

(Trial), 1/17/13, at 232–234. Thus, any issues relating to its admissibility

are waived. See, e.g., Commonwealth v. Burchard, 503 A.2d 936, 938–

939 (Pa. Super. 1986) (“Our Courts have repeatedly held that issues must

be preserved at each and every stage of review; otherwise, they are deemed

waived and cannot subsequently be raised on appeal”). Because the issue of

the admissibility of the Glock was not preserved for appeal by trial counsel,

it is without arguable merit and appellate counsel cannot be found to be

ineffective for failing to raise the issue. Paddy, 15 A.3d at 442.

       Turning to the Makarov, we first note that the trial court granted

Appellant’s motion in limine to exclude the Makarov. N.T. (Pretrial Hearing),

1/14/13, at 55.      Although the trial court excluded the Makarov and other

evidence, the trial court stated that any of the excluded evidence would

remain inadmissible “unless the door is open.” Id. As the trial progressed,

Appellant’s co-defendant’s counsel asked the victim about the guns used

during the robbery, and the victim testified that the gun was “maybe silver

and brown.” N.T. (Trial), 1/17/13, at 188. The Makarov is a blued steel gun
____________________________________________


2
  Although trial counsel did not object to the admission of the gun, he later
moved for a mistrial on the grounds that the Glock should not have been
admitted into evidence. N.T. (Trial), 1/17/13, at 327. This does not
preserve the issue for appeal. “We have long held that ‘[f]ailure to raise a
contemporaneous objection to the evidence at trial waives that claim on
appeal.’” Commonwealth v. Thoeun Tha, 64 A.3d 704, 713 (Pa. Super.
2013) (quoting Commonwealth v. Pearson, 685 A.2d 551, 555 (Pa.
Super. 1996)).



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with brown grips. Id. at 225. During a sidebar, trial counsel for Appellant

objected to admitting the Makarov into evidence because the victim testified

that the gun was silver, not blued steel, and because Appellant should not

be prejudiced because his co-defendant’s counsel opened the door for the

admission of the gun. Id. at 226. The trial court denied the objection and

allowed a law enforcement officer to testify about the Makarov found in

Appellant’s home.     Id. at 227.      Thus, there has been no waiver of

Appellant’s argument regarding the admissibility of the Makarov.

      As discussed supra, Appellant must meet the following three-pronged

test to establish ineffective assistance of counsel: “(1) the underlying legal

claim has arguable merit; (2) counsel had no reasonable basis for his or her

action or inaction; and (3) the petitioner suffered prejudice because of

counsel’s ineffectiveness.” Paddy, 15 A.3d at 442. Appellant is unable to

prove that the underlying claim, namely that the trial court erred when it

admitted the Makarov into evidence, has arguable merit and his ineffective

assistance of counsel claim fails for that reason.

      Preliminarily, we note that the admission of evidence is within the

sound discretion of the trial court.    Commonwealth v. Washington, 63

A.2d 797, 805 (Pa. Super. 2013).        Thus, we will review the trial court’s

ruling on the admissibility of that Makarov for an abuse of discretion.

Commonwealth v. Elliot, 80 A.3d 415, 446 (Pa. 2013). As the Supreme

Court of Pennsylvania held:




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      An abuse of discretion may not be found merely because an
      appellate court might have reached a different conclusion, but
      requires a result of manifest unreasonableness, or partiality,
      prejudice, bias, or ill-will, or such lack of support so as to be
      clearly erroneous. Typically, all relevant evidence, i.e., evidence
      which tends to make the existence or non-existence of a
      material fact more or less probable, is admissible, subject to the
      prejudice/probative value weighing which attends all decisions
      upon admissibility.

Commonwealth v. Dillon, 925 A.2d 131, 136 (Pa. 2007) (internal citations

and quotations omitted).

      Appellant argues that the trial court’s decision to admit the Makarov

was unduly prejudicial for a litany of reasons, including: its admission

persuaded the jury to convict only because Appellant had a gun, the

admission of the gun diverted the jury’s attention from the facts of the case;

and the admission of the gun caused the jury to convict Appellant “based on

[Appellant] as a person, not on what he has done.” Appellant’s Brief at 38.

Appellant also argues that the admission of the gun constituted a violation of

his due process right to a fundamentally fair trial.       Id.      None of these

arguments has merit.

      As the PCRA properly noted, “[r]elevance is the threshold for

admissibility of evidence.”    PCRA Court Opinion, 8/22/16, at 19 (quoting

Commonwealth v. Semenza, 127 A.3d 1, 7 (Pa. Super. 2015)). “Evidence

is relevant if it logically tends to establish a material fact in the case, tends

to make a fact at issue more or less probable or supports a reasonable

inference   or   presumption   regarding    a   material   fact.”    Id.   (quoting

Commonwealth v. Drumheller, 805 A.2d 893, 894 (Pa. 2002)). Pursuant


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to Pennsylvania Rule of Evidence 403, a trial court may exclude relevant

evidence if its probative value is outweighed by the danger, inter alia, of

unfair prejudice or misleading the jury. Pa.R.E. 403.

      The trial court admitted the Makarov because it, along with the Glock

and handcuffs, were found in Appellant’s home within two weeks of the

crimes. PCRA Court Opinion, 8/22/16, at 20. The trial court found that the

admission of the Makarov tended to make a fact or consequence in the crime

more probable, as required by Pennsylvania Rule of Evidence 401.           Id.

Specifically, the PCRA court found that evidence of the guns was admissible

to show Appellant had the ability to acquire a gun and had the opportunity

to commit the crimes for which he was convicted. Id. Further, the Makarov

matched the victim’s description of the gun at trial. N.T. (Trial), 1/17/13, at

188. Appellant’s co-defendant testified that Appellant had a gun during the

commission of the crime and provided the handcuffs used to cuff the victim

to a pipe in the back room. Id. at 248–249. The PCRA court also noted that

the possession of a gun is not a bad act and the jury did not hear evidence

that Appellant committed a crime by possessing the gun.           PCRA Court

Opinion, 8/22/16, at 20.

      Given all of the above, the admission of the Makarov does not

constitute an abuse of the trial court’s discretion. See Commonwealth v.

Williams, 640 A.2d 1251, 1260 (Pa. 1994) (finding that a weapon found in

the possession of a defendant may be admitted into evidence, “even though

it cannot positively be identified as the weapon used in the commission of a

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particular crime, if it tends to prove that the defendant had a weapon similar

to   the   one   used   in   the   perpetration   of   the   crime.”).   See also

Commonwealth v. Christine, 125 A.3d 394, 401 (Pa. 2015) (“Possession

of a handgun may be relevant even if the particular gun possessed cannot

be proven to be the one used in the crime.”); Commonwealth v. Holmes,

No. 2704 EDA 2011, 2013 WL 11279593 (Pa. Super. 2/22/2013) (applying

Williams and finding that guns recovered in defendant’s basement were

admissible to show access to firearms). To the extent that it is not certain

that the Makarov was the actual weapon used in the commission of the

crime, that uncertainty speaks to the weight of the evidence. Williams, 640

A.2d at 1260. The trial court did not err when it admitted the Makarov into

evidence; thus the underlying issue was without merit, and appellate counsel

cannot be deemed ineffective for failing to raise a meritless claim. Paddy,

15 A.3d at 442.

      In his second issue, Appellant argues that his trial counsel was

ineffective for failing to call Appellant as a witness at trial, thereby

interfering with his right to testify.    Appellant’s Brief at 42. The Supreme

Court of Pennsylvania held in Commonwealth v. Nieves:

      In order to sustain a claim that counsel was ineffective for failing
      to advise the appellant of his rights in this regard, the appellant
      must demonstrate that counsel interfered with his right to
      testify, or that counsel gave specific advice so unreasonable as
      to vitiate a knowing and intelligent decision to testify on his own
      behalf.

Nieves, 746 A.2d 1102, 1104 (Pa. 2000).


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       In support of his claim, Appellant argues that he was unaware that he

had the right to testify and that he believed he had no choice but to follow

trial counsel’s advice. Appellant’s Brief at 45. Appellant also argues that the

lack of an on-the-record colloquy regarding his right to testify and decision

not to do so is evidence of the fact that his waiver of his right to testify was

not knowing, voluntary, or intelligent. Id. at 46.

       The PCRA court found that trial counsel credibly testified at the PCRA

hearing that “on at least two occasions, he specifically explained and

thoroughly discussed with [Appellant] whether he should testify at trial: one

meeting occurred pre-trial and one meeting occurred during the trial.” PCRA

Court Opinion, 8/22/16, at 11–12 (citing N.T. (PCRA Hearing), 3/11/16 at 8,

15). Conversely, the PCRA Court found that Appellant’s testimony regarding

his lack of understanding of his right to testify was not credible.3 It is well

established that “[t]he PCRA Court’s credibility determinations, when

supported by the record, are binding on this Court.”      Commonwealth v.

Medina, 92 A.3d 1210, 1214 (Pa. Super. 2014). Thus, this Court will defer



____________________________________________


3
   In support of its finding that Appellant’s testimony on this issue was not
credible, the PCRA court noted that Appellant’s testimony on the issue
vacillated between Appellant making the decision and trial counsel making
the decision for him. PCRA Court Opinion, 8/22/16, at n. 9. The PCRA Court
also relied on the fact that at the time of trial, Appellant was twenty-eight
years old and had his G.E.D.; thus, the argument that he could not “discern
the difference between someone giving legal advice and someone dictating a
course of action is unsupportable.” Id.



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to the PCRA court’s credibility determination regarding the testimony of

Appellant’s trial counsel and Appellant.

      This finding is supported by the testimony at the PCRA hearing.

During that hearing, trial counsel testified that he informed Appellant of the

pros and cons of testifying and that the decision whether to testify or not

was made by Appellant. N.T. (PCRA Hearing), 3/11/16, at 15. Trial counsel

also testified that he would have put Appellant on the witness stand if he

had wanted to testify.    Id.   We also note that during the trial, the judge

asked counsel who they would be calling as a witness and Appellant’s trial

counsel responded, “The only thing I can tell you, I don’t have a hundred

percent answer out of [Appellant]…I don’t think [Appellant is] going to, but

I’ll tell him we need a final answer.” N.T. (Trial), 1/18/13, at 338.

      Further, during the PCRA hearing, Appellant testified that it was his

decision not to testify, based upon trial counsel’s advice:

      Q: So it was your decision not to testify?

      A: I guess.

      Q: Based on his advice, it was your decision, though?

      A: My decision was to tell my version of the story. His decision
         was that I wouldn’t have been found guilty, so just leave it as
         it is. And I agree with his decision, I guess.

      Q: You agree with his decision for you not to testify?

      A: Yes.




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N.T. (PCRA Hearing), 3/11/16, at 24.           As the PCRA Court found, the

evidence established that after consulting with trial counsel, Appellant made

the decision not to testify. PCRA Court Opinion, 08/22/16, at 11.

      Appellant argues in the alternative that trial counsel’s advice that

Appellant not take the stand was so unreasonable that it vitiated Appellant’s

knowing and intelligent waiver. Appellant’s Brief at 45. This claim is without

merit. Trial counsel advised Appellant not to testify for several reasons, and

this Court has repeatedly held that “[c]ounsel is not ineffective where

counsel’s   decision   not   to   call   the    defendant   was    reasonable.”

Commonwealth v. O’Bidos, 849 A.2d 243, 250 (Pa. Super. 2004).

      In this case, trial counsel testified that he advised against Appellant

testifying for several reasons, including that Appellant’s testimony could

open the door to a significant amount of drug-related evidence that was

discovered at Appellant’s residence, which had been excluded through

Appellant’s pretrial motion in limine. N.T. (PCRA Hearing), 3/11/16, at 16–

17. Trial counsel also testified that he knew the district attorney in this case

was aggressive on cross-examination and may have pushed Appellant to

open the door to that evidence.    Id. at 17. He also testified that there was

little physical evidence that placed Appellant at the bank with the victim—but

that Appellant’s proposed testimony would do specifically that.      Id. at 15.

Finally, trial counsel advised Appellant against testifying because he believed

there were significant credibility issues with Appellant’s proposed testimony.

Id. at 15–16.    The above reasons establish that trial counsel was acting

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reasonably when he advised Appellant against testifying in this case. See,

e.g., Commonwealth v. Puskar, 951 A.2d 267, 280 (Pa. 2008) (finding

that counsel was not ineffective for not offering the testimony of individuals

who could open the door to evidence that had been excluded); O’Bidos, 849

A.2d at 250 (finding counsel was not ineffective for counseling against

defendant taking stand on his own behalf where there were issues that could

be brought out on cross examination, including, inter alia, defendant’s prior

criminal history and the circumstances surround his arrest and where

counsel believed that the jury would negatively perceive aspects of

defendant’s proposed testimony).

      Appellant has failed to establish that trial counsel interfered with his

right to testify or that trial counsel offered advice so unreasonable so as to

vitiate Appellant’s knowing and intelligent decision to testify on his own

behalf.     Thus, Appellant’s second issue does not warrant PCRA relief on

those grounds.

      For the reasons set forth above, we conclude that Appellant is entitled

to no relief.   Accordingly, we affirm the order dismissing Appellant’s PCRA

petition.

      Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 7/18/2017




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