J-S84022-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

TYRESE FORD

                            Appellant                 No. 3840 EDA 2015


             Appeal from the PCRA Order Dated December 14, 2015
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0006600-2011


BEFORE: OLSON, J., SOLANO, J., and FITZGERALD, J.*

MEMORANDUM BY SOLANO, J.:                           FILED January 20, 2017

        Appellant Tyrese Ford appeals pro se from the order denying his initial

petition filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.

§§ 9541-9546.       Appellant claims that his trial counsel was ineffective and

that his guilty plea was a product of this ineffective assistance of counsel.

We grant counsel’s petition to withdraw, deny Appellant’s pro se Motion to

Dismiss with Prejudice, and affirm the denial of Appellant’s PCRA petition.

        Appellant was charged with murder1 and several weapons offenses in

connection with the February 19, 2011 shooting of Christopher Spence.

____________________________________________


*
    Former Justice specially assigned to the Superior Court.
1
    No degree was specified on the information.
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       Appellant’s case was listed for trial on July 9, 2012.2 On that day,

Appellant’s    counsel,     Kenneth     Young,       informed        the   Court     that   the

Commonwealth        had    recently    sent    him    a     letter    regarding     additional

discovery.     Specifically, the letter stated that Dr. Samuel Gulino, Chief

Medical Examiner for the City of Philadelphia, would testify at trial in place of

a Dr. Hunt, who performed the autopsy on Spence and was unavailable. In

addition, Dr. Gulino would testify that Spence suffered a contact gunshot

wound, an opinion contrary to the opinion in Dr. Hunt’s autopsy report. The

letter also informed Appellant that the Commonwealth’s firearms expert

would testify that the bullet recovered from Spence’s body was consistent

with ammunition found during a search of Appellant’s home.                         Finally, the

Commonwealth         provided      a    previously        undisclosed       statement       by

Commonwealth        witness     Dana    McClamy,       in    which     McClamy       identified

Appellant as the shooter. Appellant presented a motion in limine to exclude

this new evidence.        The court denied Appellant’s motion in limine, but

agreed to continue the case. PCRA Ct. Op., 12/14/15, at 1-2.

       Also at the July 9, 2012 hearing, Appellant rejected an offer from the

Commonwealth to plead guilty to third-degree murder and weapons offenses


____________________________________________


2
  As the PCRA court noted, “[t]he Notes of Testimony and court file for this
hearing indicate that it was held on July 8, 2012, though the docket
indicates that it was held on July 9, 2012.” PCRA Ct. Op., 12/14/15, at 1
n.1. That discrepancy is not material to the disposition of this appeal.



                                           -2-
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in exchange for a recommendation of a 25 to 50-year sentence.            N.T.,

7/9/12, at 26-28.

      Finally, at the July 9, 2012 hearing, the trial court denied Appellant’s

motion to suppress ammunition found during a search of his home.         That

motion was based on alleged deficiencies in the search warrant affidavit.

N.T., 7/9/12, at 63-75.

      At the next listing of Appellant’s case, on December 10, 2012,

Appellant entered into a negotiated guilty plea to one count of third-degree

murder (18 Pa.C.S. § 2502) and one count of possession of a firearm

without a license (18 Pa.C.S. § 6106).        In exchange for his plea, the

Commonwealth agreed to withdraw the remaining charges against Appellant,

and to recommend an aggregate sentence of eighteen to forty years’

incarceration.   At the plea hearing, the Commonwealth proffered the

following factual basis for the plea, to which Appellant agreed:

      On February 19, 2011, Latoya Lofton and Christopher Spence
      were present at the T&T Bar and Lounge at Hawthorne and
      Margaret Streets in Philadelphia.     Lofton stood next to
      [Appellant] at the bar for approximately seven minutes. At
      some point that evening, [Appellant] and Spence had a verbal
      argument concerning whether Spence was inappropriately
      touching Dana McClamy, another young woman at the bar.
      During the course of the argument, [Appellant] said, “I don’t
      fight like that” and showed the butt of a handgun that was
      secured in his waistband. Both Lofton and Spence saw the
      weapon. Loften attempted to intervene, between [Appellant]
      and Spence, but Spence reached around her and punched
      [Appellant] once in the face. [Appellant] recoiled from the
      punch, drew the firearm, and shot Spence once in the chest.
      Spence was taken to Frankford Hospital, where he was
      pronounced dead from a single gunshot wound to the chest.

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      Following the shooting, [Appellant] returned home to his
      brother, to whom [Appellant] stated he had been in a fight over
      a girl and had ended up shooting a boy at the T&T Lounge.
      Ballistic examination of the bullet used to shoot Spence was
      consistent with ammunition recovered from [Appellant’s]
      residence upon [Appellant’s] arrest.

PCRA Ct. Op. at 3 (citing N.T., 12/10/12, at 11-21); N.T., 12/10/12, at 22.

During   the     plea    colloquy,   Appellant    stated   that     apart      from   the

Commonwealth’s promises to withdraw certain charges and recommend an

aggregate sentence of 18 to 40 years, no one promised him anything or

threatened him in any way to induce him to plead guilty. N.T., 12/10/12, at

23. The trial court immediately imposed the negotiated sentence of 18 to 40

years’ incarceration. Appellant did not file a direct appeal.

      On November 21, 2013, Appellant filed a pro se PCRA petition.

Attorney Daniel Silverman was subsequently appointed to represent him.

On July 24, 2014, Attorney Silverman filed a no-merit letter pursuant to

Commonwealth            v.   Turner,    544      A.2d   927       (Pa.    1988),      and

Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).

However, on November 20, 2014, Silverman filed an Amended PCRA

Petition, claiming that trial counsel “rendered ineffective assistance in

affirmatively misleading petitioner to believe that he would be eligible for

‘pre-release’ after serving nine years of his 18-year minimum when that was

not true.”     Amended Petition at 10.        According to the amended petition,

Appellant “relied on this erroneous advice in deciding to plead guilty,” and

would have chosen to go to trial but for counsel’s advice.               Id.   Appellant

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attached an affidavit to his PCRA petition in which he stated that if his

counsel had informed him that he would be required to serve eighteen years

before he could be released, he “never would have taken the deal.”

Amended PCRA Petition, Ex. B.

     The PCRA court held an evidentiary hearing on April 17, 2015, and

later summarized the proceedings at that hearing as follows:

     [Appellant] presented testimony from Kenneth Young, Lamar
     Larke, and Lisa Robinson. The Commonwealth did not present
     any additional testimony.

     Mr. Young testified that he was prepared to take [Appellant]’s
     matter to trial prior to receiving the additional unfavorable
     discovery that he received a few days prior to July 9, 2012, and
     losing a motion to exclude this evidence. Young testified that
     following the receipt of this additional evidence . . . but prior to
     the Court's resolution of [Appellant]’s motions to exclude this
     evidence, the Commonwealth presented [Appellant] with an offer
     of 25 to 50 years[’] incarceration, which [Appellant] rejected.
     Young further testified that, following the rejection of this first
     offer, the Commonwealth presented a modified offer of 18 to 40
     years[’] incarceration. Young testified that he first approached
     [Appellant] with the 18 to 40 year offer in the courthouse on
     December 10, 2012, in the presence of [Appellant]’s mother and
     aunt. Young further testified that, when meeting with [Appellant]
     and his family, Young informed [Appellant] that he could apply
     for prerelease after nine years, but that it would “virtually [be]
     like a one in a million chance.” Additionally, Young stated that he
     informed [Appellant] that [Appellant] would be “a very good
     candidate for his minimum parole [at 18 years]....” Young
     testified that he informed [Appellant] that he would be younger
     than Young was at the time of sentencing when released from
     custody. Young also testified that, when discussing prerelease,
     he informed [Appellant] that “it’s really hard. I don’t know,
     maybe I heard of one person in my career get out on
     prerelease.” Young additionally testified that he informed
     [Appellant] and his family that the majority of inmates serve
     80% of their maximum sentence, but that [Appellant] would be
     a good candidate for release at his 18-year minimum due to his

                                    -5-
J-S84022-16


     young age and lack of a prior record. Young testified that he
     never told [Appellant] that he would be released after serving
     nine years of his sentence. Finally, Young testified that he
     learned at some later point that Pennsylvania had abolished the
     prerelease program on July 5, 2012.

     Lamar Larke, [Appellant]’s uncle, testified that after consulting
     with Young he understood that [Appellant] would plead guilty
     and receive a sentence of 18 to 40 years[’] incarceration. Larke
     further testified that it was his understanding that [Appellant]
     “would be able to come home or he’d be eligible to come home”
     after eleven years, with good behavior. Larke modified this
     testimony slightly under cross-examination to state that it was
     his understanding that [Appellant] would come home after
     eleven years, or possibly thirteen years, but definitely not that
     [Appellant] would have to serve the entirety of his eighteen year
     minimum. Larke also testified that this discussion with Young
     occurred on a date other than when [Appellant] pled guilty.
     Larke testified that, after having this discussion with Young, he
     and several other members of [Appellant]’s family consulted with
     each other and decided that it would be a good deal. Larke
     stated that Young never informed [Appellant]’s family that
     [Appellant] would face a “one in a million” chance to get out
     prior to his minimum, or that Young ever stated that he only
     knew of one person being granted prerelease.

     Lisa Robinson, [Appellant]’s mother, testified that her first
     discussion with Young concerning [Appellant] pleading guilty
     occurred sometime close to the time of [Appellant]’s scheduled
     trial. Robinson testified that Young informed her that the deal
     offered to [Appellant] was “the best offer that he could get him
     and that – and in a certain amount of time he could ask for a
     prerelease.” Robinson further clarified that it was her
     understanding that [Appellant] could ask for prerelease after
     seven years. Robinson testified that she had a meeting with
     Young, as well as two other family members, during which
     Young stated that [Appellant] “could be eligible for prerelease
     out of this 18 to 40 years, that in 11 years he would be eligible
     for prerelease.” Robinson testified that every time Young
     mentioned the 18 to 40 year deal, he would also mention
     prerelease. Robinson further testified that this prerelease would
     be possible due to [Appellant]’s good behavior, should
     [Appellant] apply for prerelease. Like Larke, Robinson testified
     that Young did not discuss the likelihood of prerelease.

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PCRA Ct. Op. at 4-7 (footnote and citations to the record omitted). Both

parties filed post-hearing briefs.

      On December 14, 2015, the PCRA court denied Appellant’s petition. In

an opinion filed that day, the court explained that the testimony of Young,

which it found credible, established that Young informed Appellant that he

could be eligible for prerelease after serving nine years of his sentence.

PCRA Ct. Op. at 7. The PCRA court concluded that Young’s advice regarding

prerelease was incorrect because the prerelease program no longer existed

at the time Appellant entered his plea.     Id.   The court credited Young’s

testimony that he told Appellant the following: (1) Appellant’s odds of being

released pursuant to the prerelease program were “one in a million;” (2)

Young had only heard of one defendant in his entire (seventeen-year) career

experience being released on prerelease; and (3) the majority of defendants

serve approximately 80% of their maximum sentence. Id. The court found

the testimony of Appellant’s family members, to the extent it contradicted

Young’s testimony, was not credible. Id. at 8. The court found that until

December 10, 2012, Appellant intended to proceed to trial, but that his trial

strategy was “severely compromised” by the additional discovery revealed in

July of 2012.    Id.    The court concluded that Appellant failed to prove

prejudice — that is, that it was reasonably likely that but for Young’s advice,

he would have chosen not to plead guilty and to proceed to trial, where he

faced a significant risk of being found guilty of first-degree murder. Id.

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       On December 21, 2015, Appellant, through Attorney Silverman, filed a

timely notice of appeal.           On December 31, 2015, Silverman filed a

Statement of Matters Complained of on Appeal pursuant to Pa.R.A.P.

1925(b), stating he had concluded that that there were no issues of arguable

merit to raise on appeal, and he intended to file an Anders3 brief.

       On February 1, 2016, Silverman filed a petition to withdraw. In that

petition, counsel said he had sent Appellant a copy of his Anders brief.

Counsel also stated that on January 27, 2016, Appellant notified counsel that

he wished to proceed pro se.             Silverman’s petition to withdraw did not

include an Anders brief.

       On February 16, 2016, Silverman filed a petition for an extension of

time in which to file the appellate brief, pending this Court’s ruling on the

petition to withdraw.        Appellant attempted to file a pro se brief while

counsel’s motion to withdraw was still pending. On February 17, 2016, this

Court forwarded that brief to Silverman with a letter, pursuant to

Commonwealth v. Jette, 23 A.3d 1032 (Pa. 2011).                    On or around

February 22, 2016, Appellant sent documents to this Court requesting an

____________________________________________


3
  Anders v. California, 386 U.S. 738 (1967). Because this is an appeal
from an order denying a PCRA petition, the proper filing would have been a
petition to withdraw pursuant to Commonwealth v Turner, 544 A.2d 927
(Pa. 1988) and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988)
(en banc). See Commonwealth v. Wrecks, 931 A.2d 717, 721 (Pa. Super.
2007).




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J-S84022-16


extension of time in which to file his brief. He stated that he was forced to

represent himself because his appointed counsel abandoned him and he

could not afford another lawyer. He also said he wished to proceed pro se

and have his counsel removed because of disagreements concerning his

appeal. In accordance with Jette, we forwarded those documents to

Silverman on March 1, 2016.

         By an order entered February 24, 2016, this Court remanded the case

for a Grazier4 hearing so that the PCRA court could conduct an on-the-

record colloquy and determine whether Appellant’s waiver of counsel was

knowing, intelligent, and voluntary.           The PCRA court complied with this

Court’s directive and held a Grazier hearing on April 15, 2016. Following the

hearing, the PCRA court determined that Appellant’s waiver of counsel was

valid.

         On April 21, 2016, this Court issued a briefing schedule. On May 10,

2016, Appellant filed a pro se petition for an extension of time in which to

file his brief, which we granted. Appellant filed his pro se brief on June 10,

2016.5     In this pro se appeal, Appellant argues that the PCRA court erred in


____________________________________________


4
    Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).
5
  Because Appellant expressed a wish to proceed pro se, and that request
was ratified at the Grazier hearing, counsel need not file a Turner/Finley
brief.




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dismissing his petition after concluding that he failed to establish that he was

prejudiced by his counsel’s erroneous advice.6

       On July 13, 2016, the Commonwealth requested an extension of time

in which to file a brief as appellee. We granted that motion and ordered that

the Commonwealth file its brief on or before September 9, 2016.             The

Commonwealth did not file a brief by that deadline, and it has not filed any

brief at all. On December 5, 2016, Appellant filed a “Motion to Dismiss with

Prejudice” that asks that, as a remedy for the Commonwealth’s failure to file

a brief, we disregard any argument by the Commonwealth and award

Appellant a new trial. We deny that aspect of the relief sought in Appellant’s

motion.

       Although we disapprove of the Commonwealth’s failure to file a brief in

this matter, the remedy for that omission is not the automatic granting of

the relief sought by Appellant in his appeal. Pennsylvania Rule of Appellate

Procedure 2188 provides that if an appellant fails to file a timely brief, an

appellee may move for dismissal of the matter. However, if the appellee

fails to file a timely brief, the consequence is that the appellee will be

____________________________________________


6
  Appellant did not include a Statement of Questions Involved in his brief, as
required by Pennsylvania Rules of Appellate Procedure 2111 and 2116.
However, because that failure does not hamper our review, we will address
Appellant’s substantive argument. See Savoy v. Savoy, 641 A.2d 596, 598
(Pa. Super. 1994) (where failure to provide a separate Statement of
Questions Involved does not impede this Court’s ability to review the issues,
we may address the merits of the appeal).



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precluded from participating in any oral argument in the case, absent leave

of Court.    This PCRA case is not subject to oral argument, however.     See

Superior Court I.O.P. 36(A), 210 Pa. Code § 65.36(A) (“All post-conviction

hearing cases shall be submitted on the briefs and record”). We therefore

deny Appellant’s “Motion to Dismiss with Prejudice” to the extent he seeks to

be awarded a new trial based upon the Commonwealth’s failure to file a

brief.7

       Turning to the merits of this appeal, we begin by noting our standard

of review: In reviewing the propriety of an order granting or denying PCRA

relief, this Court is limited to ascertaining whether the evidence supports the

determination of the PCRA court and whether the ruling is free of legal error.

Commonwealth v. Payne, 794 A.2d 902, 905 (Pa. Super.), appeal

____________________________________________


7
  On October 12, 2016, this Court sent Appellant a notice that his appeal
was “listed for submission on briefs without oral argument before [this
panel] on October 24, 2016.” In his motion, Appellant states that he
learned of this letter upon reviewing an “updated docket sheet,” but that he
never received the letter and requests a copy. We hereby direct the Court’s
prothonotary to mail a copy of the October 12, 2016 letter to Appellant.
Appellant’s motion also states that he received a letter from the Court
regarding a hearing on October 28, 2016, but that he was not later informed
of the hearing’s outcome. There was no hearing by this Court in this matter
on October 28, 2016, or on any other date, and the Court issued no letter
informing Appellant of such a hearing date. To the extent that Appellant
misconstrues the reference to “October 24, 2016,” in this Court’s
October 12, 2016 correspondence as notice of an October hearing date,
Appellant is mistaken. Our letter notified Appellant only that the case was
being assigned to this panel on October 24, 2016 for the panel to then
consider and dispose of Appellant’s appeal on the briefs and record. The
panel has now done so and is deciding the appeal by this memorandum.



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denied, 808 A.2d 571 (Pa. 2002). This Court defers to the findings of the

PCRA court, which will not be disturbed unless they have no support in the

certified record.   Id.   “Further, the PCRA court’s credibility determinations

are binding on this Court, where there is record support for those

determinations.” Commonwealth v. Anderson, 995 A.2d 1184, 1189 (Pa.

Super.), appeal denied, 9 A.3d 626 (Pa. 2010).

      To obtain relief under the PCRA premised on a claim that counsel was

ineffective, a petitioner must demonstrate that: (1) the underlying claim is

of arguable merit; (2) counsel had no reasonable strategic basis for his or

her action or inaction; and (3) petitioner was prejudiced by counsel’s act or

omission. See Commonwealth v. Pierce, 527 A.2d 973, 975 (Pa. 1987).

In this context, a finding of “prejudice” requires the petitioner to show “there

is a reasonable probability that, but for the error of counsel, the outcome of

the proceeding would have been different.”         Commonwealth v. Stevens,

739 A.2d 507, 512 (Pa. 1999).             If a petitioner fails to prove by a

preponderance of the evidence any of the three Pierce requirements, the

court need not address the remaining requirements.            Commonwealth v.

Fitzgerald, 979 A.2d 908, 911 (Pa. Super. 2009), appeal denied, 990

A.2d 727 (Pa. 2010).

      The right to effective assistance of counsel extends to the plea

process:

           However, allegations of ineffectiveness in connection with
           the entry of a guilty plea will serve as a basis for relief only

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         if the ineffectiveness caused the defendant to enter an
         involuntary or unknowing plea.      Where the defendant
         enters his plea on the advice of counsel, the voluntariness
         of the plea depends on whether counsel’s advice was
         within the range of competence demanded of attorneys in
         criminal cases.

Commonwealth v. Wah, 42 A.3d 335, 338-39 (Pa. Super. 2012) (citations,

brackets, and quotation marks omitted). Moreover, to prove prejudice, a

petitioner “must show that there is a reasonable probability that, but for

counsel’s errors, he would not have pleaded guilty and would have insisted

on   going   to   trial.”   Hill   v.   Lockhart,   474   U.S.   52,   59    (1985);

Commonwealth v. Hickman, 799 A.2d 136, 141 (Pa. Super. 2002)

(applying same test under Pennsylvania law). “The ‘reasonable probability’

test is not a stringent one.” Hickman, 799 A.2d at 141 (citing Nix v.

Whiteside, 475 U.S. 157, 175 (1986)).            “[A] reasonable probability is a

probability sufficient to undermine confidence in the outcome.”             Nix, 475

U.S. at 175 (citation omitted).

      In Hill, the defendant alleged that plea counsel erroneously advised

him that if he pleaded guilty, he would be eligible for parole after serving

one-third of his sentence, when in fact the defendant would not be eligible

for parole until he had served one-half of his sentence. Hill, 474 U.S. at 55.

The Court found it “unnecessary to determine whether there may be

circumstances under which erroneous advice by counsel as to parole

eligibility may be deemed constitutionally ineffective assistance of counsel,”




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because it concluded that Hill had not satisfied the prejudice requirement.

Id. at 60. The Court explained:

      Petitioner did not allege in his habeas petition that, had counsel
      correctly informed him about his parole eligibility date, he would
      have pleaded not guilty and insisted on going to trial. He alleged
      no special circumstances that might support the conclusion that
      he placed particular emphasis on his parole eligibility in deciding
      whether or not to plead guilty. Indeed, petitioner’s mistaken
      belief that he would become eligible for parole after serving one-
      third of his sentence would seem to have affected not only his
      calculation of the time he likely would serve if sentenced
      pursuant to the proposed plea agreement, but also his
      calculation of the time he likely would serve if he went to trial
      and were convicted.

Id.

      In Hickman, this Court held that a PCRA petitioner was entitled to

relief where his “plea counsel gave [him] reason to believe he would be

released from prison in two years and be eligible for parole six months later,

when, in fact, [he] was statutorily ineligible for release into the boot camp

program and could not receive parole until he had served four years[’]

imprisonment.”   Hickman, 799 A.2d at 141.        At the PCRA hearing, both

Hickman and his plea counsel testified that but for counsel’s erroneous

advice regarding boot camp, Hickman would have pleaded “not guilty” and

opted to go to trial. Id. The PCRA court found that testimony credible. Id.

This Court noted that the circumstances of Hickman’s case were consistent

with his claim, explaining, “it is not unlikely that he would have otherwise

tested the case against him at trial since the risk of a guilty verdict carried

but an additional year on his maximum sentence.”       Id. at 141-42. Under

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those circumstances, we held that Hickman had proved his plea counsel was

ineffective and must receive the opportunity to withdraw his guilty plea. Id.

at 141-43.

      In this case, Appellant claims that his plea counsel provided ineffective

assistance by erroneously advising him that he would be eligible for pre-

release when, in fact, that program had been abolished. He argues that, in

accordance with Hickman, his claim has arguable merit and his counsel had

no reasonable basis for his error. Appellant further asserts that because he

relied on his counsel’s representations regarding pre-release, his plea was

not knowing and voluntary. He states, “[t]here is no evidence in this record

to suggest that petitioner was anything but eager to have his day in court.”

Appellant’s Brief at 11. He notes that he rejected two prior plea offers, one

for 25 to 50 years’ incarceration and one for 20 to 40 years’ incarceration.

Id. at 11-12.    Contending that the evidence against him “was at least

equally consistent with verdicts of third degree murder and voluntary

manslaughter,” he concludes that, “[o]bjectively, a decision to proceed to

trial was a perfectly rational choice.” Id. at 12.

      Contrary to Appellant’s argument, however, the PCRA court found that

Appellant failed to prove that he would have gone to trial if he had received

correct advice about the pre-release program. We are required to defer to

the PCRA court’s findings on this issue if they are supported by the evidence




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of record, Payne, 794 A.2d at 905, and, after a careful review of the record,

we conclude that the PCRA court’s findings do indeed have record support.

       The PCRA court believed Young’s testimony that Young told Appellant

that there was only a “one in a million chance” of obtaining pre-release and

that most defendants serve about 80% of their maximum sentences. PCRA

Ct. Op. at 7.       Although Appellant presented witnesses who disputed that

testimony,     we    are   required    to      accept   the   PCRA   court’s   credibility

determinations on this issue.           Anderson, 995 A.2d at 1189.8              Having

accepted Young’s testimony, the PCRA court then concluded that Appellant

failed to prove a reasonable probability that, but for his “one in a million

chance” of pre-release, he would not have pleaded guilty. PCRA Ct. Op. at

7-8; see Hill, 474 U.S. at 59.           The court noted that Appellant’s defense

strategy was “severely compromised by the additional admissible evidence

of a contact gunshot wound, eyewitness testimony[,] and a ballistic match to

ammunition found in [Appellant]’s residence upon his arrest.” PCRA Ct. Op.

at 8. The court also noted that if Appellant proceeded to trial, “there was a

significant risk of being found guilty of first-degree murder and being
____________________________________________


8
  We note that in this case, unlike in Hickman, Appellant did not testify at
the evidentiary hearing. Although Appellant attached an affidavit to his
PCRA petition in which he properly alleged prejudice, an affidavit is not a
substitute for testimony at the evidentiary hearing. See Commonwealth
v. Dennis, 950 A.2d 945, 964 (Pa. 2008) (where petitioner attached
affidavits from potential alibi witnesses to his PCRA petition, but did not
present their testimony at his evidentiary hearing, he failed to carry his
burden of proof).



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sentenced to . . . mandatory life in prison without parole.” Id. The court’s

conclusion was supported by the evidence and not based on an error of law.

     Based on the foregoing, we grant counsel’s petition to withdraw and

affirm the PCRA court’s order denying Appellant post-conviction relief. We

also deny Appellant’s Motion to Dismiss with Prejudice, and we direct the

Superior Court Prothonotary to mail Appellant a copy of the October 12,

2016 submission letter.

     Petition to withdraw granted. Motion to Dismiss with Prejudice denied.

Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/20/2017




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