J. A30042/17


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    :         IN THE SUPERIOR COURT OF
                                                :               PENNSYLVANIA
                        v.                      :
                                                :
KEVIN LAWRENCE AUSTIN, II,                      :               No. 1625 WDA 2016
                                                :
                             Appellant          :


                Appeal from the PCRA Order, September 26, 2016,
                  in the Court of Common Pleas of Clarion County
                 Criminal Division at No. CP-16-CR-0000125-2013


BEFORE: BOWES, J., STABILE, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                         FILED JANUARY 18, 2018

        Kevin Lawrence Austin, II, appeals pro se from the September 26,

2016 order dismissing his petition filed pursuant to the Post Conviction Relief

Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546, without a hearing. After careful

review, we affirm.

        The relevant facts of this case were set forth by a prior panel of this

court    on    direct    appeal   and    need       not    be    reiterated   here.   See

Commonwealth v. Austin, 122 A.3d 1122 (Pa.Super. 2015) (unpublished

memorandum at *1, citing trial court opinion, 9/8/14 at 1-2), appeal

denied, 130 A.3d 1285 (Pa. 2015).               In sum, appellant was charged with

attempted criminal homicide and related offenses in connection with his

involvement in a drive-by shooting that resulted in serious injury to one of

the victims.     On December 11, 2013, a jury found appellant guilty of two
J. A30042/17


counts of aggravated assault, four counts of recklessly endangering another

person, and one count each of simple assault, carrying a firearm without a

license, and persons not to possess a firearm.1 On February 26, 2014, the

trial court sentenced appellant to an aggregate term of 14 to 28 years’

imprisonment.2 On June 3, 2015, a panel of this court affirmed appellant’s

judgment of sentence, and our supreme court denied his petition for

allowance of appeal on December 8, 2015. See id.3 Appellant did not file a

petition for writ of certiorari with the United States Supreme Court.

      On May 18, 2016, appellant filed a timely pro se PCRA petition and

Sara J. Seidle-Patton, Esq. (hereinafter, “PCRA counsel”), was appointed to

represent him on May 24, 2016. On August 24, 2016, PCRA counsel filed a

no-merit letter and request to withdraw in accordance with Commonwealth

v. Turner, 544 A.2d 927 (Pa. 1988), and Commonwealth v. Finley, 550

A.2d 213 (Pa.Super. 1988) (en banc). On August 29, 2016, the PCRA court

provided appellant with notice of its intention to dismiss his petition without

a hearing, pursuant to Pa.R.Crim.P. 907(1).     Appellant did not respond to

the PCRA court’s Rule 907 notice. That same day, the PCRA court granted

PCRA counsel permission to withdraw.

1
  18 Pa.C.S.A. §§ 2702(a)(1) and (a)(4), 2705, 2701(a)(2), 6106, and
6105.1, respectively.
2
 Appellant was represented at his jury trial and sentencing by Michael E.
Waltman, Esq. (hereinafter, “trial counsel”).
3
  Appellant was represented on direct appeal by Stanley T. Booker, Esq.
(hereinafter, “direct appeal counsel”).


                                     -2-
J. A30042/17


      On September 26, 2016, the PCRA court formally dismissed appellant’s

petition without a hearing. This timely pro se appeal followed on October

21, 2016. On October 24, 2016, the PCRA court ordered appellant to file a

concise statement of errors complained of on appeal, in accordance with

Pa.R.A.P. 1925(b), within 21 days. Appellant filed his pro se Rule 1925(b)

statement on November 18, 2016, four days past the deadline. Thereafter,

on January 13, 2017, the PCRA court filed a two-page Rule 1925(a) opinion

indicating that appellant’s appeal should be dismissed.         (See PCRA court

opinion, 1/13/17 at 1-2.)

      Preliminarily,   we   must    address    whether     appellant’s   untimely

Rule 1925(b) statement can be excused by the prisoner mailbox rule. Under

the prisoner mailbox rule, “a pro se prisoner’s document is deemed filed on

the date he delivers it to prison authorities for mailing.” Commonwealth v.

Chambers, 35 A.3d 34, 38 (Pa.Super. 2011) (citation omitted), appeal

denied, 46 A.3d 715 (Pa. 2012).          Generally, “any reasonably verifiable

evidence of the date that the prisoner deposits” the document with prison

authorities is acceptable to satisfy this rule, including a certificate of mailing,

cash slip from prison authorities, or evidence of internal operating

procedures of the prison mail system. See Commonwealth v. Jones, 700

A.2d 423, 426 (Pa. 1997).

      Here, appellant’s Rule 1925(b) statement was due on November 14,

2016, 21 days after entry of the PCRA court’s October 24, 2016 order. The



                                       -3-
J. A30042/17


clerk of courts received appellant’s Rule 1925(b) statement, on November

18, 2016, but the record does not contain a certificate of mailing indicating

when it was deposited with prison authorities.    Nonetheless, we conclude

that appellant’s Rule 1925(b) statement, which was dated November 13,

2016, presumably would have been deposited with prison authorities or

placed in the prison mailbox by the following day, making it timely filed.

Accordingly, we deem appellant’s Rule 1925(b) to be timely.

     Appellant raises the following seven issues for our review:

           I.     WHETHER [THE PCRA] COURT ERRED AS A
                  MATTER OF LAW IN DETERMINING THAT
                  APPELLANT WAIVED HIS CLAIM [THAT] THE
                  PROSECUTOR ENGAGED IN MISCONDUCT IN
                  FAILING   TO    PROVIDE   EXCULPATORY
                  EVIDENCE IN THE FORM OF MALCOLM
                  HAILSTOCK, WHO ADMITTED HIS BRINGING
                  THE WEAPON IN QUESTION TO THE CRIME
                  SCENE OF THE SHOOTING?

           II.    WHETHER [THE PCRA] COURT ERRED AS A
                  MATTER OF LAW IN REFUSING TO GRANT
                  APPELLANT RELIEF AND/OR OTHERWISE
                  HOLDING    EVIDENTIARY   HEARING   ON
                  APPELLANT’S CLAIM OF BEING DENIED
                  EFFECTIVE ASSISTANCE OF COUNSEL WHERE
                  [TRIAL COUNSEL] ERRONEOUSLY ADVISED
                  HIM TO REJECT TWO PLEA OFFERS BY THE
                  COMMONWEALTH?

           III.   WHETHER [THE PCRA] COURT ERRED IN
                  ALLOWING    [PCRA   COUNSEL]   TO   FILE
                  NO-MERIT LETTER AND IN GRANTING THE
                  SAME AS TO THE ISSUE OF TRIAL COUNSEL’S
                  [] FAILING TO INTERVIEW, INVESTIGATE OR
                  PRESENT TESTIMONY OF KIARONNA LITES TO
                  IMPEACH       THE     [COMMONWEALTH’S]



                                    -4-
J. A30042/17


                 ASSERTION     OF    FACTS   INCULPATING
                 APPELLANT AT TRIAL?

          IV.    WHETHER [THE PCRA] COURT ERRED IN
                 ALLOWING [PCRA COUNSEL] TO FILE A
                 NO-MERIT LEITER AND IN GRANTING THE
                 SAME AS TO THE ISSUE OF [TRIAL
                 COUNSEL’S] FAILURE TO CHALLENGE JUROR
                 #37 FOR CAUSE?

          V.     WHETHER [THE PCRA] COURT ERRED AS A
                 MATTER OF LAW IN GRANTING [PCRA
                 COUNSEL’S] NO[-]MERIT LETTER DISMISSING
                 THE ISSUE OF [TRIAL COUNSEL’S] FAILURE TO
                 CHALLENGE THE ARRAY OF POTENTIAL
                 JURORS AFTER JUROR #73 MADE A CLEARLY
                 AUDIBLE STATEMENT, “HE’S GUILTY, HE’S
                 GUILTY,” IN FRONT OF ALL PROSPECTIVE
                 JURORS DURING SELECTION, TAINTING ALL
                 PROSPECTIVE JURORS APPELLANT WAS TO
                 SELECT FROM FOR HIS JURY TRIAL?

          VI.    WHETHER [THE PCRA] COURT ERRED IN
                 ALLOWING [PCRA COUNSEL] TO FILE A
                 NO-MERIT LETTER AND ADOPTING THE SAME
                 IN FAILING TO CONDUCT HEARING ON THE
                 CLAIM OF TRIAL COURT’S DENIAL OF [TRIAL
                 COUNSEL’S] CHALLENGE TO THE LACK OF
                 AFRICAN-AMERICANS COMPRISING THE JURY
                 PANEL, AND, IN [DIRECT APPEAL COUNSEL’S]
                 FAILURE TO RAISE THIS CLAIM ON DIRECT
                 APPEAL?

          VII.   WHETHER. [THE PCRA] COURT ERRED AS A
                 MATTER OF LAW IN ADOPTING [PCRA
                 COUNSEL’S] NO-MERIT LETTER AND HOLDING
                 THAT [DIRECT APPEAL COUNSEL] WAS NOT
                 INEFFECTIVE AT [THE] DIRECT APPELLATE
                 STAGE IN FAILING TO RAISE ISSUES ONE,
                 FOUR, FIVE AND SIX IN THE HEREIN BRIEF,
                 ASSERTING THESE CLAIMS LACKED MERIT?




                                 -5-
J. A30042/17


Appellant’s brief at iv-iii.4

      Proper appellate review of a PCRA court’s dismissal of a PCRA petition

is limited to the examination of “whether the PCRA court’s determination is

supported by the record and free of legal error.” Commonwealth v. Miller,

102 A.3d 988, 992 (Pa.Super. 2014) (citation omitted). “The PCRA court’s

findings will not be disturbed unless there is no support for the findings in

the certified record.” Commonwealth v. Lawson, 90 A.3d 1, 4 (Pa.Super.

2014) (citations omitted). “This Court grants great deference to the findings

of the PCRA court, and we will not disturb those findings merely because the

record could support a contrary holding.”          Commonwealth v. Hickman,

799 A.2d 136, 140 (Pa.Super. 2002) (citation omitted).             In order to be

eligible   for   PCRA   relief,   a   defendant   must   plead   and   prove   by   a

preponderance of the evidence that his conviction or sentence arose from

one or more of the errors listed at 42 Pa.C.S.A. § 9543(a)(2).             Further,

these issues must be neither previously litigated nor waived. 42 Pa.C.S.A.

§ 9543(a)(3).

      Where the PCRA court has dismissed a petitioner’s petition without an

evidentiary hearing, as was the case here, we review the PCRA court’s

decision for an abuse of discretion.        See Commonwealth v. Roney, 79



4
 We note that the page numbers corresponding to appellant’s “Statement of
Questions Involved” in his pro se appellate brief appear in descending
order. Additionally, to the extent some of appellant’s issues are interrelated,
we will address them simultaneously.


                                          -6-
J. A30042/17


A.3d 595, 604 (Pa. 2013), cert. denied, 135 S.Ct. 56 (2014) (citation

omitted). Moreover,

            the right to an evidentiary hearing on a
            post-conviction petition is not absolute. It is within
            the PCRA court’s discretion to decline to hold a
            hearing if the petitioner’s claim is patently frivolous
            and has no support either in the record or other
            evidence. It is the responsibility of the reviewing
            court on appeal to examine each issue raised in the
            PCRA petition in light of the record certified before it
            in order to determine if the PCRA court erred in its
            determination that there were no genuine issues of
            material fact in controversy and in denying relief
            without conducting an evidentiary hearing.

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

citations omitted).

      Appellant first avers that he is entitled to relief on his underlying claim

of prosecutorial misconduct and that the PCRA court erred in concluding that

this claim was waived. (Appellant’s brief at iv, 3-5; Issue I.) We disagree.

Under the PCRA, “an issue is waived if the petitioner could have raised it but

failed to do so before trial, at trial, during unitary review, on appeal[,] or in

a prior state postconviction proceeding.”          42 Pa.C.S.A. § 9544(b).

Accordingly, appellant is not entitled to relief on this claim.        See, e.g.,

Commonwealth v. Ford, 809 A.2d 325, 329 (Pa. 2002) (holding that

petitioner’s claims of trial court error, constitutional error, and prosecutorial

misconduct, which could have been raised on direct appeal but were not,

were waived under the PCRA), cert. denied, 540 U.S. 1150 (2004).




                                      -7-
J. A30042/17


      Appellant next argues that trial counsel rendered ineffective assistance

by purportedly advising him to reject the Commonwealth’s two plea offers.

(Appellant’s brief at 5-8; Issue II.)         To prevail on a claim of ineffective

assistance of counsel under the PCRA, a petitioner must plead and prove by

a   preponderance       of   the   evidence   that   counsel’s   ineffectiveness   “so

undermined the truth-determining process that no reliable adjudication of

guilt or innocence could have taken place.” 42 Pa.C.S.A. § 9543(a)(2)(ii).

Specifically, a petitioner must establish that “the underlying claim has

arguable merit; second, that counsel had no reasonable basis for his action

or inaction; and third, that Appellant was prejudiced.” Commonwealth v.

Charleston, 94 A.3d 1012, 1020 (Pa.Super. 2014), appeal denied, 104

A.3d 523 (Pa. 2014) (citation omitted).              “[C]ounsel is presumed to be

effective   and   the    burden     of   demonstrating   ineffectiveness   rests   on

appellant.”   Commonwealth v. Ousley, 21 A.3d 1238, 1242 (Pa.Super.

2011), appeal denied, 30 A.3d 487 (Pa. 2011) (citation omitted).

Additionally, counsel cannot be found ineffective for failing to raise a claim

that is devoid of merit. Commonwealth v. Ligons, 971 A.2d 1125, 1146

(Pa. 2009).

      Instantly, appellant has failed to establish any arguable merit to his

claim that trial counsel rendered ineffective assistance in advising him with

regard to the Commonwealth’s plea offers, because the record indicates that

there were no formal plea offers to accept or reject in this matter. As PCRA



                                          -8-
J. A30042/17


counsel noted in her August 24, 2016 no-merit letter, the record does not

contain a criminal conference form indicating that the Commonwealth ever

made a formal plea offer to appellant, and the Commonwealth withdrew its

two informal plea offers to appellant prior to his acceptance or rejection.

(See no-merit letter, 8/24/16 at 7.) Accordingly, appellant’s ineffectiveness

claim merits no relief.

       Appellant’s remaining five claims concern PCRA counsel’s purported

ineffectiveness in failing to raise various allegations of ineffective assistance

of counsel on the part of both trial counsel and direct appeal counsel.

Specifically, appellant alleges that, in lieu of filing a Turner/Finley no-merit

letter, PCRA counsel should have argued that trial counsel was ineffective for

(a) failing to interview or present the potentially exculpatory testimony of

Kiaronna Lites at trial (see appellant’s brief at 8-10 (Issue III)); and (b) for

failing to argue that the prospective jury pool was tainted or challenge it on

Batson5 grounds. (See id. at 11-15 (Issues IV-VI).) In a one-paragraph

issue, appellant further argues that direct appeal counsel was ineffective in

failing to raise or preserve any of the aforementioned issues. (Id. at 15-16,

Issue VII.)    Appellant also contends, albeit parenthetically, that the PCRA

court erred in failing to conduct a hearing on these claims of ineffectiveness.

(Id. at 11.)




5
    Batson v. Kentucky, 476 U.S. 79 (1986).


                                      -9-
J. A30042/17


      Our supreme court has set forth the proper framework for alleging a

layered ineffective assistance of counsel claim in the context of the PCRA:

                   Succinctly stated, a petitioner must plead in his
            PCRA petition that his prior counsel, whose alleged
            ineffectiveness is at issue, was ineffective for failing
            to raise the claim that the counsel who preceded him
            was ineffective in taking or omitting some action. In
            addition, a petitioner must present argument, in
            briefs or other court memoranda, on the three
            prongs of the [ineffectiveness] test as to each
            relevant layer of representation. . . . [T]his means
            that the arguable merit prong of the [ineffectiveness]
            test as to the claim that appellate counsel was
            ineffective     in   not    raising    trial   counsel’s
            ineffectiveness consists of the application of the
            three-prong [ineffectiveness] test to the underlying
            claim of trial counsel’s ineffectiveness. If any one of
            the prongs as to trial counsel’s ineffectiveness is not
            established, then necessarily the claim of appellate
            counsel’s ineffectiveness fails.     Only if all three
            prongs as to the claim of trial counsel’s
            ineffectiveness are established, do prongs 2 and 3 of
            the [ineffectiveness] test as to the claim of appellate
            counsel’s ineffectiveness have relevance, requiring a
            determination as to whether appellate counsel had a
            reasonable basis for his course of conduct in failing
            to raise a meritorious claim of trial counsel’s
            ineffectiveness (prong 2) and whether petitioner was
            prejudiced by appellate counsel’s course of conduct
            in not raising the meritorious claim of trial counsel’s
            ineffectiveness (prong 3).

Commonwealth       v.   Reid,   99   A.3d     470,   482   (Pa.   2014),   quoting

Commonwealth v. McGill, 832 A.2d 1014, 1023 (Pa. 2003).

      Our review of appellant’s pro se brief indicates that he has failed to

properly raise his layered ineffectiveness claims by applying the three-prong

ineffectiveness test to each level of representation.      A determination that



                                     - 10 -
J. A30042/17


trial counsel rendered ineffective assistance is a prerequisite to finding that

any subsequent counsel was himself ineffective, and as discussed, no such

findings were demonstrated in this case. See Commonwealth v. Burkett,

5 A.3d 1260, 1270 (Pa.Super. 2010). Moreover, as noted, “[i]t is within the

PCRA court’s discretion to decline to hold a hearing if the petitioner’s claim is

patently frivolous and has no support either in the record or other

evidence[,]” as is the case here.       See Wah, 42 A.3d at 338 (internal

citations omitted).     Additionally, we note that appellant did not file a

response to PCRA counsel’s no-merit letter and request to withdraw and

raise claims of PCRA counsel’s purported ineffectiveness. Accordingly, for all

the foregoing reasons, appellant’s remaining five ineffective assistance of

counsel claims must fail.

      Based on the foregoing, we discern no error on the part of the PCRA

court in dismissing appellant’s petition without a hearing.     Accordingly, we

affirm the September 26, 2016 order of the PCRA court.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/18/2018




                                     - 11 -
