J-S66018-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    ANDRE RAYMELLE WATLEY                      :
                                               :
                       Appellant               :   No. 204 EDA 2019

              Appeal from the PCRA Order Entered January 2, 2019
     In the Court of Common Pleas of Northampton County Criminal Division
                       at No(s): CP-48-CR-0001039-2014

BEFORE:       STABILE, J., NICHOLS, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY NICHOLS, J.:                                  Filed: April 30, 2020

        Appellant Andre Raymelle Watley appeals pro se from the order

dismissing his serial Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-

9546, petition as untimely. Appellant claims that (1) his most recent PCRA

counsel was ineffective for failing to preserve claims based on three affidavits

he obtained prior to and during the pendency of his previous PCRA appeal;

(2) the Commonwealth committed a Brady1 violation; (3) the PCRA court

erred in not conducting an independent review of the record before dismissing

Appellant’s PCRA petition; and (4) the PCRA court erred in not conducting an

evidentiary hearing. We affirm.




____________________________________________


1   Brady v. Maryland, 373 U.S. 83 (1963).
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       We adopt the PCRA court’s summary of the procedural history of this

appeal.2 See PCRA Ct. Op., 3/27/19, at 1-5. We reiterate that on August 8,

2018, after the Pennsylvania Supreme Court denied allowance of appeal in

Appellant’s first PCRA proceeding,3 Appellant filed the instant pro se PCRA

petition.   Therein, Appellant raised claims based on affidavits from George

Groller, Dwight Boase, and Nicholas Davila and a Brady violation based on

the victim’s 2009 statement. The PCRA court appointed counsel, Attorney

Talia Mazza, Esq., who filed a motion to withdraw and a Turner/Finley4 no-

merit letter. The trial court issued a Pa.R.Crim.P. 907 notice and permitted

Attorney Mazza to withdraw. Appellant filed a pro se response to the Rule 907

notice. On January 2, 2019, the PCRA court dismissed the instant petition.

       Appellant, acting pro se, timely appealed and filed a court-ordered

Pa.R.A.P. 1925(b) statement challenging the PCRA court’s decision allowing

Attorney Mazza to withdraw and asserting that he timely raised meritorious

claims. The PCRA court filed a Rule 1925(a) opinion concluding that all of

Appellant’s claims were previously litigated, that Attorney Mazza’s no-merit


____________________________________________


2As discussed below, we also agree with the PCRA court that Appellant’s
Brady claim was previously litigated. See PCRA Ct. Op., 3/27/19, at 5.

3 See Commonwealth v. Watley, 645 EDA 2017, 2017 WL 5452913 (Pa.
Super. filed Nov. 14, 2017) (unpublished mem.) (affirming the denial of relief
in Appellant’s first PCRA proceeding), appeal denied, 56 MAL 2018 (Pa. filed
July 18, 2018).

4Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth v.
Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).

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letter was appropriate and that Appellant failed to demonstrate that Attorney

Mazza was ineffective.

      On appeal, Appellant raises the following issues, which we have

rephrased for review:

         1. Was Attorney Mazza ineffective for failing to investigate and
            interview eyewitnesses and for not litigating Appellant’s
            claims that the instant PCRA was timely under 42 Pa.C.S. §
            9545(b)(1)(i), (ii)?

         2. Did the Commonwealth withhold exculpatory evidence in
            violation of Brady and Pa.R.Crim.P. 573?

         3. Did the PCRA court err by failing to conduct an independent
            review of the record before dismissing the instant PCRA
            petition?

         4. Did the PCRA court err by failing to hold an evidentiary
            hearing?

Appellant’s Brief at 9.

      We summarize Appellant’s first three issues together because they are

interrelated.   Appellant argues that Attorney Mazza’s no-merit letter was

defective because she failed to recognize that he timely raised his claims. Id.

at 10-11. Relatedly, Appellant asserts that the PCRA court did not conduct a

proper review of Attorney Mazza’s no-merit letter and request to withdraw

from representation. Id. at 44.

      In support, Appellant essentially argues that his instant PCRA petition

stated exceptions to the PCRA time-bar based on the Groller, Boase, and

Davila affidavits, as well as the Brady violation. Appellant further contends

that the affidavits and Brady violation establish his actual innocence.

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      The Commonwealth responds that the instant petition was untimely and

that none of Appellant’s claims established an exception to the PCRA time-

bar. Commonwealth’s Brief at 5. Alternatively, the Commonwealth argues

that Appellant’s after-discovered claims based on the Groller, Boase, and

Davila affidavits lacked merit. Id. The Commonwealth further asserts that

Appellant’s claims of ineffectiveness against Attorney Mazza were meritless

and that the PCRA court did not err in its independent review. Id.

      Our standard of review from the dismissal of a PCRA petition “is limited

to examining whether the PCRA court’s determination is supported by the

evidence of record and whether it is free of legal error.” Commonwealth v.

Ousley, 21 A.3d 1238, 1242 (Pa. Super. 2011) (citation omitted). “We will

not disturb findings that are supported by the record.” Id. (citation omitted).

Further, “we may affirm the PCRA court’s decision on any basis.”

Commonwealth v. Charleston, 94 A.3d 1012, 1028 (Pa. Super. 2014)

(citation and quotation marks omitted).

      A PCRA petitioner has no right to counsel for the purposes of a

subsequent PCRA petition. See Commonwealth v. Kubis, 808 A.2d 196,

200 (Pa. Super. 2002). As our Supreme Court noted in Commonwealth v.

Haag, 809 A.2d 271 (Pa. 2002),

      the right to counsel in a second or subsequent PCRA petition is not
      co-extensive with the right to counsel in a first PCRA petition.
      While Pa.R.Crim.P. 904(A) provides for the appointment of
      counsel in a first PCRA petition when the petitioner satisfies the
      judge that he is unable to afford or otherwise obtain counsel,
      Pa.R.Crim.P. 904(B) provides for the appointment of counsel in a

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      second or subsequent PCRA petition only in cases where the
      petitioner can further establish that an evidentiary hearing is
      required.

Haag, 809 A.2d at 293.

      Nevertheless, once the PCRA court appoints PCRA counsel, counsel must

diligently represent the petitioner by (1) presenting the petitioner’s claims in

legally acceptable terms or (2) certifying that the petitioner’s claims lack merit

and seeking withdrawal under Turner/Finley.            Cf. Commonwealth v.

Cherry, 155 A.3d 1080, 1082-83 (Pa. Super. 2017).

      To withdraw from representation under Turner/Finley,

      counsel must review the case zealously. Turner/Finley counsel
      must then submit a “no-merit” letter to the trial court . . .
      detailing the nature and extent of counsel’s diligent review of the
      case, listing the issues which the petitioner wants to have
      reviewed, explaining why and how those issues lack merit, and
      requesting permission to withdraw.

      Counsel must also send to the petitioner: (1) a copy of the “no-
      merit” letter/brief; (2) a copy of counsel’s petition to withdraw;
      and (3) a statement advising petitioner of the right to proceed pro
      se or by new counsel.

Commonwealth v. Wrecks, 931 A.2d 717, 721 (Pa. Super. 2007) (citations

omitted).

      Additionally,   when    considering   a   request    to   withdraw    under

Turner/Finley, the PCRA court must conduct an independent review and

agree with counsel that the petition was meritless before allowing counsel to

withdraw. See Commonwealth v. Widgins, 29 A.3d 816, 818 (Pa. Super.

2011). This Court has disapproved of the PCRA court’s adoption of counsel’s

no-merit letter. Commonwealth v. Glover, 738 A.2d 460, 466 (Pa. Super.

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1999) (noting that when the PCRA court “affirms by adopting counsel’s ‘no

merit’ letter, the certified record fails to demonstrate that the PCRA [c]ourt

has   conducted    a   meaningful   independent   review   of   the   issues”).

Nevertheless, the PCRA court may establish its independent review in a Rule

1925(a) opinion.    Commonwealth v. Rykard, 55 A.3d 1177, 1186 (Pa.

Super. 2012).

      Instantly, Appellant preserved his challenges to the adequacy of

Attorney Mazza’s no-merit letter and the PCRA court’s independent review in

his response to the Rule 907 notice of intent to dismiss the instant petition.

Therefore, we will address these challenges. See Rykard, 55 A.3d at 1186.

      As noted above, Attorney Mazza filed a petition to withdraw and a no-

merit letter.   She demonstrated a review of the record, listed the issues

Appellant wished to raise in the instant petition, and explained why she

believed those issues did not warrant relief. See Attorney Mazza’s No-Merit

Ltr., 11/15/18, at 1-3. The PCRA court, in its Rule 907 notice, stated that it

was dismissing the instant petition for the reasons stated in Attorney Mazza’s

no-merit letter. See Rule 907 Notice, 11/19/18, at 1. Nevertheless, the PCRA

court subsequently issued a Rule 1925(a) opinion in which it independently

reviewed the record and concluded that no relief was due. See Rykard, 55

A.3d at 1186.

      Accordingly, we conclude that Attorney Mazza and the PCRA court

substantially complied with the procedures set forth in Turner/Finley.

Because Appellant contends that Attorney Mazza and the PCRA court erred in

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their conclusions that Appellant was not entitled to relief based on the Groller,

Boase, and Davila affidavits and his Brady claim, we will address Appellant’s

arguments in further detail.    Specifically, we consider Appellant’s assertion

that each of the affidavits constituted newly-discovered facts under Section

9545(b)(1)(ii) and that his Brady claim was timely filed based on

governmental interference under Section 9545(b)(1)(i).

      It is well settled that “[t]he timeliness of a PCRA petition is a

jurisdictional requisite.” Commonwealth v. Brown, 111 A.3d 171, 175 (Pa.

Super. 2015) (citation omitted).     A PCRA petition, “including a second or

subsequent petition, shall be filed within one year of the date the judgment

becomes final” unless the petitioner pleads and proves one of three statutory

exceptions. 42 Pa.C.S. § 9545(b)(1).

      The three statutory exceptions to the PCRA’s one-year time-bar are:

      (i) the failure to raise the claim previously was the result of
      interference by government officials with the presentation of the
      claim in violation of the Constitution or laws of this Commonwealth
      or the Constitution or laws of the United States;

      (ii) the facts upon which the claim is predicated were unknown to
      the petitioner and could not have been ascertained by the exercise
      of due diligence; or

      (iii) the right asserted is a constitutional right that was recognized
      by the Supreme Court of the United States or the Supreme Court
      of Pennsylvania after the time period provided in this section and
      has been held by that court to apply retroactively.

42 Pa.C.S. § 9545(b)(1)(i)-(iii).




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     The former version of the PCRA required a petitioner to file his petition

within sixty days of the date the claim could have been presented. See 42

Pa.C.S. § 9545(b)(2) (subsequently amended). However, Section 9545(b)(2)

was amended on October 24, 2018, effective December 24, 2018, and

currently provides: “Any petition invoking an exception provided in paragraph

(1) shall be filed within one year of the date the claim could have been

presented.” 42 Pa.C.S. § 9545(b)(2) (as amended eff. Dec. 24, 2018). The

current version of Section 9545(b)(2) applies to claims arising on December

24, 2017, or thereafter. See Act of Oct. 24, 2018, P.L. 894, No. 146, § 3.

     In Commonwealth v. Lark, 746 A.2d 585 (Pa. 2000), our Supreme

Court held that

     when an appellant’s PCRA appeal is pending before a court, a
     subsequent PCRA petition cannot be filed until the resolution of
     review of the pending PCRA petition by the highest state court in
     which review is sought, or upon the expiration of the time for
     seeking such review. If the subsequent petition is not filed within
     one year of the date when the judgment became final, then the
     petitioner must plead and prove that one of the three exceptions
     to the time bar under 42 Pa.C.S. § 9545(b)(1) applies. The
     subsequent petition must also be filed within sixty days of the date
     of the order which finally resolves the previous PCRA petition,
     because this is the first “date the claim could have been
     presented.” 42 Pa.C.S. § 9545(b)(2).

Lark, 746 A.2d at 588.

     This Court subsequently stated that “Lark precludes consideration of a

subsequent petition from the time a PCRA order is appealed until no further

review of that order is possible.” Commonwealth v. Montgomery, 181 A.3d

359, 364 (Pa. Super. 2018) (en banc), appeal denied, 190 A.3d 1134 (Pa.

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2018). “[H]owever, nothing bars a PCRA court from considering a subsequent

petition, even if a prior petition is pending, so long as the prior petition is not

under appellate review.” Id.

      To successfully raise the newly discovered fact exception under Section

9545(b)(1)(ii), a petitioner must establish that (1) “the facts upon which the

claim was predicated were unknown” and (2) the facts “could not have been

ascertained by the exercise of due diligence.” 42 Pa.C.S. § 9545(b)(1)(ii).

We have previously explained that, “the ‘new facts’ exception at Section

9545(b)(1)(ii) does not require any merits analysis of an underlying after-

discovered-evidence claim.” Brown, 111 A.3d at 177 (quotation marks and

citations omitted).

      Our Supreme Court has held that Section 9545(b)(1)(ii)

      requires petitioner to allege and prove that there were facts that
      were unknown to him and that he could not have ascertained
      those facts by the exercise of due diligence. The focus of the
      exception is on the newly discovered facts, not on a newly
      discovered or newly willing source for previously known facts.


Commonwealth v. Marshall, 947 A.2d 714, 720 (Pa. 2008) (emphases in

original) (citations and some formatting omitted); see also Commonwealth

v. Lambert, 57 A.3d 645, 649-50 (Pa. 2012) (concluding that a “newly willing

source” supporting a petitioner’s previously litigated claims did not satisfy the

newly discovered facts exception to the PCRA’s time-bar).

      Here, the trial court sentenced Appellant on July 22, 2015, and the

conviction became final on August 21, 2015, when Appellant did not take a


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direct appeal. See 42 Pa.C.S. § 9545(b)(1), (3). Therefore, Appellant had

until Monday, August 22, 2016, to file a facially timely PCRA petition. See 42

Pa.C.S. § 9545(b)(1); see also 1 Pa.C.S. § 1908. Accordingly, there is no

dispute that the instant petition, which Appellant filed on August 8, 2018, was

untimely on its face and that Appellant bore the burden of establishing a PCRA

timeliness exception.

                            The Groller Affidavit

      Appellant   challenges   Attorney   Mazza’s    and   the   PCRA    court’s

determination that he previously litigated his claims based on the Groller

affidavit. Appellant notes that before the PCRA court denied relief in his first

PCRA proceeding, he filed pro se petitions on December 12, 2016 and January

5, 2017, attempting to raise claims based on Groller’s statement. Appellant’s

Brief at 13-14. However, Appellant claims that his December 12, 2016 and

January 5, 2017 filings were nullities and that the PCRA court and this Court

should not have addressed the merits of his claims in his first PCRA appeal.

Id. at 14-15.

      Moreover, Appellant contends that he timely raised his claims based on

the Groller affidavit in the instant petition. Id. at 15. Appellant asserts that

he did not have a proper opportunity to preserve his claims based on the

Groller affidavit while his first PCRA proceeding was pending in the PCRA court

and he was represented by counsel. Id. at 14-15. Appellant adds that his

counsel in the first PCRA proceeding abandoned him by failing to raise any

claims based on the Groller affidavit at the evidentiary hearing. Id. at 12-13.


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      The Commonwealth responds that Appellant failed to establish a time-

bar exception under Section 9545(b)(1)(ii).      Commonwealth’s Brief at 12.

Additionally, the Commonwealth asserts that Appellant failed to establish due

diligence in discovering the fact on which Appellant sought relief and failed to

file the instant petition within one year of the date Appellant could have raised

the claim. Id. at 12-13.

      Instantly, Appellant asserted that he first discovered that Groller gave a

statement in October of 2016, and that he obtained Groller’s affidavit in

November of 2016. See PCRA Pet., 8/8/18, at 3; Mem. of Law, 8/8/18, at 1,

6-7. Therefore, former Section 9545(b)(2) applied and required him to raise

his claims within sixty days of the date they could have been raised, or no

later than January of 2017. See 42 Pa.C.S. § 9545(b)(2); Act of Oct. 24,

2018, P.L. 894, No. 146, § 3.      However, Appellant did not file the instant

petition until August of 2018, well beyond the sixty-day period in former

Section 9545(b)(2).

      We acknowledge Appellant’s argument that he did not have a proper

opportunity to raise claims based on the Groller affidavit because the PCRA

court had not yet ruled in his first PCRA proceeding and he was still

represented by counsel. Nevertheless, as the PCRA court and this Court noted

in Appellant’s first PCRA appeal, Appellant could have raised the Groller

affidavit in response to prior PCRA counsel’s no-merit letter or in response to

the PCRA court’s notice of its intent to deny relief.




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         Therefore, we conclude that Appellant failed to establish that he filed

the instant petition within sixty days of the date the claim could have been

raised as required by former Section 9545(b)(2).        Accordingly, Appellant’s

claim that he timely filed the instant petition based on the Groller affidavit

fails.

                        The Boase and Davila Affidavits

         Appellant also contends that Attorney Mazza erred in concluding that his

claims based on the Boase affidavit were untimely.        Specifically, Appellant

asserts that under Lark, he could not have raised the Boase affidavit while his

first PCRA appeal was pending and that he properly filed the instant petition

shortly after the conclusion of his first PCRA appeal. Appellant’s Brief at 10-

11, 20, 25. Appellant further contends that Attorney Mazza and the PCRA

court erred in concluding that his claim of after-discovered evidence based on

the Davila affidavits did not merit relief. See id. at19, 21.

         The Commonwealth, in part, asserts that Appellant could not state a

timeliness exception under Section 9545(b)(1)(ii) based on the Boase and

Davila affidavits. Commonwealth’s Brief at 12. The Commonwealth contends

that Boase and Davila did not state previously unknown facts, but were new

sources of previously known facts. Id.

         The record establishes the following. In the instant petition, Appellant

outlined the investigative steps he took to identify Boase as a witness and how

he obtained favorable information from Davila. See Mem. of Law, 8/8/18, at




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9-10, 11-12.    Appellant asserted that he obtained the Boase and Davila

affidavits during the pendency of his first PCRA appeal. Id. at 10, 12.

      Following her appointment in the present matter, Attorney Mazza

determined that Appellant’s claims based on the Boase affidavit were time-

barred, and in any event would not merit relief. Attorney Mazza’s No-Merit

Ltr., 11/15/18, at 2. Attorney Mazza stated that Appellant’s claims based on

the Davila affidavit were timely raised, but did not entitle Appellant to relief.

Id. at 2-3. The PCRA court, in its Rule 1925(a) opinion, did not address the

timeliness of Appellant’s claims based on the Boase and Davila affidavits, but

concluded that Boase’s and Davila’s proposed testimony would not have

changed the outcome at trial.    PCRA Ct. Op., 3/27/19, at 6.

      Because the timeliness of a PCRA petition is a threshold, jurisdictional

issue, we first consider whether Appellant established an exception under

Section 9545(b)(1)(ii). See Brown, 111 A.3d at 175. Instantly, a review of

the Boase and Davila affidavits reveals that Boase and Davila would assert the

same underlying facts as stated in the Groller affidavit; namely, that Appellant

was not a participant in the attack in the victim’s home.       Therefore, these

affidavits are new sources for the same facts that were previously known to

Appellant. See Marshall, 947 A.2d at 720.

      Accordingly, even if Appellant promptly raised his claims following the

conclusion of his first PCRA appeal, see Lark, 746 A.2d at 588, the Boase and

Davila affidavits do not establish an exception under Section 9545(b)(1)(ii).

See Marshall, 947 A.2d at 720.

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                                          Brady

       Appellant also claims that Attorney Mazza and the PCRA court erred in

finding that he previously litigated his Brady claim based on a statement the

victim gave about his assailants in May of 2009.5 Appellant’s Brief at 34-35,

37-38. However, we agree with the PCRA court’s assessment that this claim

was previously litigated in Appellant’s first PCRA proceeding. See PCRA Ct.

Op., 3/27/19, at 5; see also PCRA Ct. Op., 4/18/17, at 12 (concluding in

Appellant’s first PCRA proceeding that Appellant’s same Brady claim was

waived); Watley, 645 EDA 2017 at 7-9 (affirming the denial of relief on

Appellant’s Brady claim in his first PCRA appeal).

       In any event, we add that Appellant failed to establish that his Brady

claim could establish a time-bar exception under the PCRA. Appellant asserts,

without citation to law, that as a constitutional violation, his Brady claim

“cannot be waived” and that a court may not add a due diligence and a

timeliness requirement.         Appellant Brief at 34-35.   Moreover, Appellant

contends that the failure to disclose the victim’s May 2009 statement

undermined the validity of his plea. Id. at 43.


____________________________________________


5 Appellant also argues that a separate Brady violation occurred when the
Commonwealth did not disclose the immunity agreement with Appellant’s co-
defendant, as well as any of his co-defendant’s prior inconsistent statements.
Appellant’s Brief at 38-40. This claim is waived because it was not included
in Appellant’s instant PCRA petition and thus is being presented for the first
time on appeal. See Commonwealth v. Mason, 130 A.3d 601, 638-39 (Pa.
2015).

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       The Commonwealth responds that Appellant cannot establish a

timeliness exception under Section 9545(b)(1)(i) because Appellant cannot

prove that the failure to previously raise the claim was the result of

interference by government officials.      Commonwealth’s Brief at 16.       The

Commonwealth notes that “[g]overnment officials clearly did not prevent

Appellant from raising this claim previously, because he actually did raise this

claim previously.”    Id. The Commonwealth further agrees with the PCRA

court’s assessment that the claim was previously litigated for the purposes of

the PCRA. Id. at 27.

       Following our review, we agree with the Commonwealth that Appellant

has failed to establish any timeliness exception based on his Brady claim. As

noted above, the Brady claim was raised and addressed on Appellant’s first

PCRA    proceeding.      Therefore,    Appellant   cannot    demonstrate    that

governmental interference prevented him from raising this claim for the

purposes of the instant petition. See Commonwealth v. Abu-Jamal, 941

A.2d 1263, 1268 (Pa. 2008); accord Commonwealth v. Fahy, 737 A.2d

214, 222 (Pa. 1999) (noting that the PCRA’s jurisdictional time limits must be

strictly construed and that the doctrine of equitable tolling will not extend the

filing deadlines).

       In sum, having reviewed Appellant’s first three issues in this appeal, we

discern no merit to Appellant’s contentions that Attorney Mazza’s no-merit

letter was defective and that the PCRA court failed to conduct an independent


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review. Although our reasons differ from those stated by Attorney Mazza and

the PCRA court, we conclude that the PCRA court did not err in permitting

Attorney Mazza to withdraw and dismissing Appellant’s claims.                  See

Charleston, 94 A.3d at 1028. Moreover, because all of Appellant’s underlying

claims were untimely or previously litigated, any error in the conclusions

drawn by Attorney Mazza or the PCRA court do not require further

proceedings.

      In his final issue, Appellant argues that he was entitled to an evidentiary

hearing. However,

      [i]t is well settled that there is no absolute right to an evidentiary
      hearing on a PCRA petition, and if the PCRA court can determine
      from the record that no genuine issues of material fact exist, then
      a hearing is not necessary. 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.

Commonwealth v. Maddrey, 205 A.3d 323, 328 (Pa. Super. 2019) (citations

and some formatting omitted), appeal denied, 218 A.3d 380 (Pa. 2019).

Having found that there are no claims presented in the instant PCRA petition

that would entitle Appellant to relief, we conclude that the PCRA court did not

err in denying Appellant’s petition without an evidentiary hearing.

      Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/30/20




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