J-S26045-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA              :   IN THE SUPERIOR COURT OF
                                           :        PENNSYLVANIA
                                           :
              v.                           :
                                           :
                                           :
 STEPHEN WILSON                            :
                                           :
                    Appellant              :   No. 2516 EDA 2018

            Appeal from the PCRA Order Entered June 27, 2018
  In the Court of Common Pleas of Philadelphia County Criminal Division at
                     No(s): CP-51-CR-0014270-2009,
                         CP-51-CR-0015266-2003


BEFORE:    PANELLA, P.J., GANTMAN, P.J.E., and PELLEGRINI*, J.

MEMORANDUM BY PELLEGRINI, J.:                          FILED MAY 29, 2019

      Stephen Wilson (Wilson) appeals from the order of the Court of Common

Pleas of Philadelphia County (PCRA Court) dismissing his first petition filed

pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546.

After review, we affirm.

                                      I.

      This Court summarized the factual history of Wilson’s convictions on

direct appeal as follows:

      [Wilson’s] sexual assault of his cousin, L.S., took place on
      December 5, 2008. [Wilson] got L.S. drunk in a hotel room and
      forced him to perform fellatio on [Wilson]. [Wilson] then had anal
      sex with L.S. without L.S.’s consent.

      [Wilson] met the second victim, B.P., in an internet chat room,
      then traveled to B.P.'s apartment on September 15, 2009 to meet
      him in person. [Wilson] and B.P. remained together in B.P.’s
      apartment into the early morning hours of September 16, 2009.
____________________________________
* Retired Senior Judge assigned to the Superior Court.
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       The two got into an argument, during which [Wilson] drew a knife.
       [Wilson] used the knife to cut B.P. on his face, abdomen,
       shoulders and back. Subsequently, [Wilson] had anal sex with
       B.P. without B.P.’s consent. After the sex, [Wilson] choked B.P.
       until he blacked out. B.P. regained consciousness to find [Wilson]
       having anal sex with him for a second time. Police apprehended
       [Wilson] on September 16, 2009 in connection with his offenses
       against B.P.

       The prosecutions pertaining to [Wilson’s] offenses against these
       two victims were consolidated for a June 15, 2012 bench trial. At
       the conclusion of trial, the judge found [Wilson] guilty of
       aggravated assault, possession of an instrument of crime,
       indecent assault by forcible compulsion, simple assault, recklessly
       endangering another person and sexual assault against B.P. The
       court also found [Wilson] guilty of unlawful contact with a minor,
       sexual assault, endangering the welfare of children, corruption of
       minors, and indecent assault by forcible compulsion against his
       cousin.

Commonwealth v. Wilson, 2015 WL 7571802, at *1 (Pa. Super. 2015)

(unpublished memorandum). Wilson was sentenced to an aggregate eight to

sixteen years’ imprisonment followed by five years’ probation.       This Court

affirmed the judgment of sentence and our Supreme Court denied allowance

of appeal.

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

PCRA counsel initially moved to withdraw and filed a Turner/Finley “no

merit” letter.1 A few weeks later, however, PCRA counsel filed an amended

PCRA petition listing six claims of ineffectiveness of counsel that Wilson had

____________________________________________


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




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forwarded to him to raise.2 PCRA counsel believed three of the claims were

meritless while the other three were possibly not. As to the three potentially

meritorious claims, two of them alleged that Wilson’s previous attorneys failed

to obtain text messages and emails from his victims that would have shown

they were lying.       The other alleged that Wilson’s trial counsel failed to

interview him or other witnesses; do background checks on the victims; or

obtain discovery, including DNA and rape kits.      PCRA counsel believed an

evidentiary hearing was necessary to determine the truth of these claims but

did not provide any further information or exhibits to support them.

       The PCRA Court notified Wilson of its intent to dismiss the petition

without a hearing under Pa.R.Crim.P. 907. After no response was filed, the

PCRA Court dismissed the petition. Wilson now appeals.3




____________________________________________


2 PCRA counsel’s amended petition was in the form of a letter addressed
directly to the PCRA Court and requesting that it be treated as an amended
PCRA petition. The PCRA Court accepted the letter as such and it was filed
with the Clerk of Courts. As this Court has recently observed, it is incumbent
on PCRA counsel to examine the merits of claims raised in a pro se PCRA
petition and determine whether those issues should be presented in an
amended petition. See Commonwealth v. Johnson, 179 A.3d 1153, 1157
(Pa. Super. 2018). Here, PCRA counsel filed an amended petition, but in doing
so, merely copied Wilson’s pro se claims and requested the PCRA Court to hold
an evidentiary hearing to determine whether they were meritorious.

3“Our standard of review for issues arising from the denial of PCRA relief is
well-settled. We must determine whether the PCRA court’s ruling is supported
by the record and free of legal error.” Commonwealth v. Presley, 193 A.3d
436, 442 (Pa. Super. 2018) (citation omitted).

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                                       II.

      In his only issue, Wilson argues that the PCRA Court erred in denying

him an evidentiary hearing because he raised meritorious claims of trial

counsel ineffectiveness. For support, rather than focus on the averments in

the amended PCRA petition, PCRA counsel has appended to his brief a letter

that Wilson sent to him after the amended PCRA petition was filed. In his

letter, Wilson asserts, among other things, that he informed his trial counsel

that the victims were using electronic devices during the offenses and that

their text messages and emails would show that their encounters with Wilson

were consensual. Wilson also claims that he gave his trial counsel the names

of several witnesses who saw him with the victims and would testify that they

were with Wilson consensually. PCRA counsel asks this Court to consider this

letter as Wilson’s “certification” of what he would testify to at a PCRA hearing.

He then argues that Wilson’s claims, if believed, would satisfy all of the prongs

for establishing an ineffective assistance of counsel claim.

      In making an ineffective assistance of counsel claim, it is well-

established that:

      To prevail on a claim of ineffective assistance of counsel, a PCRA
      petitioner must prove each of the following: “(1) the underlying
      legal claim was of arguable merit; (2) counsel had no reasonable
      strategic basis for his action or inaction; and (3) the petitioner was
      prejudiced—that is, but for counsel’s deficient stewardship, there
      is a reasonable likelihood the outcome of the proceedings would
      have been different."




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Commonwealth v. Pier, 182 A.3d 476, 478-79 (Pa. Super. 2018) (citations

omitted). In considering such a claim:

      The PCRA court has discretion to dismiss a petition without a
      hearing when the court is satisfied “ ‘that there are no genuine
      issues concerning any material fact, the defendant is not entitled
      to post-conviction collateral relief, and no legitimate purpose
      would be served by further proceedings.’ ” Commonwealth v.
      Roney, 622 Pa. 1, 79 A.3d 595, 604 (Pa. 2013) (quoting
      Commonwealth v. Paddy, 609 Pa. 272, 15 A.3d 431, 442 (Pa.
      2011), quoting Pa.R.Crim.P. 909(B)(2) ). “To obtain reversal of a
      PCRA court’s decision to dismiss a petition without a hearing, an
      appellant must show that he raised a genuine issue of fact which,
      if resolved in his favor, would have entitled him to relief, or that
      the court otherwise abused its discretion in denying a hearing.”
      Roney, 79 A.3d at 604-05.

Commonwealth v. Blakeney, 108 A.3d 739, 749-750 (Pa. 2014).

      Wilson contends that the trial court abused its discretion in not granting

an evidentiary hearing based on factual claims that he made in his non-record

letter sent to PCRA counsel. See Wilson’s Brief, Appendix B. As noted above,

this letter was sent after the amended petition was filed and PCRA counsel

never took any steps to have it submitted to the PCRA Court through a

properly-pleaded petition. Just as the PCRA Court could not have abused its

discretion for not considering something that was never filed and not of record,

we will not consider it or its averments. See Commonwealth v. Kennedy,

868 A.2d 582, 593 (Pa. Super. 2006) (any document not in the certified record

is deemed non-existent and cannot be remedied merely by attaching the

missing document to the brief).




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      Even if the factual averments in that letter were presented to the PCRA

Court in the amended petition, no evidentiary hearing was warranted. Wilson

did not produce any of the evidence that he claims his trial counsel was

ineffective for failing to obtain. Instead, he requested that he be granted an

evidentiary hearing in order to obtain this evidence. “An evidentiary hearing,

however, is not meant to function as a fishing expedition for any possible

evidence that may support some speculative claim of ineffectiveness.”

Commonwealth v. Scott, 752 A.2d 871, 877 n.8 (Pa. Super. 2000) (citation

omitted). Wilson has the burden of proving all three prongs of the test for

ineffectiveness, and by failing to properly produce any evidence in support of

his claims outside of his bald allegations of ineffectiveness, there were no

genuine issues concerning any material fact requiring an evidentiary hearing.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/29/19




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