J-S49009-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

TODD ALLEN,

                            Appellant               No. 2528 EDA 2013


                 Appeal from the PCRA Order of August 22, 2013
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0408061-2002


BEFORE: OLSON, OTT and STABILE, JJ.

MEMORANDUM BY OLSON, J.:                         FILED OCTOBER 27, 2014

        Appellant, Todd Allen, appeals pro se from the order entered on

August 22, 2013, dismissing his first petition pursuant to the Post Conviction

Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. We affirm.

        The PCRA court summarized the facts and procedural history of this

case as follows:

             [Appellant] was caught in possession of 4.58 grams of
          cocaine and pled guilty to possession of a controlled
          substance with intent to deliver [(PWID)1].           The
          Commonwealth agreed to a demandatorized sentence of
          11½ to 23 months of house arrest with eight years of
          probation and sixty days of incarceration from a contempt



____________________________________________


1
    35 P.S. § 780-113(a)(1).
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          charge[2] since [Appellant] walked out of the courtroom.
          This sentence was imposed on December 11, 2003.

              [Appellant] was before the [trial court] on June 29, 2004
          for a violation of probation hearing at which time the
          probation officer testified that [Appellant] was violating the
          terms of house arrest. [Appellant] gave various excuses
          relating to the violations and the [trial court] determined
          them to be untruthful. [Appellant] also had two positive
          drug tests during this time. As a result of all of these
          factors, the [trial court] sentenced [Appellant] to two to four
          years of incarceration followed by four years of probation.

              [Appellant] appeared before the [trial court] on February
          20, 2009 for another violation of probation hearing. On this
          date, [Appellant] pled guilty to possession of marijuana and
          crack cocaine. The [trial court] warned [Appellant] about
          violating his probation again and subsequently sentenced
          [him] to four years of probation. [Appellant] was arrested
          again on March 19, 2009 for another violation and appeared
          on December 15, 20[10] for his third violation relating to a
          controlled substance. [Appellant] pled guilty [to the offense
          constituting a violation of probation] and [the trial court]
          sentenced him to 59-119 months[’] incarceration [on the
          underlying PWID cocaine conviction,] consecutive to any
          other sentence. The [trial court] determined at this hearing
          that it was in the best interest of the community to
          sentence him in such a manner. The [trial court] also
          indicated that the prison would calculate any credit for time
          served.

              [After Appellant’s third revocation resentence became
          final, Appellant] filed a pro se PCRA petition and then a
          motion to proceed pro se. [Appellant] was then subjected
          to a Grazier[3] hearing and was approved by the [PCRA
          court] to proceed and [Appellant] knowingly and voluntarily
          waived his right to counsel. The [PCRA court] dismissed
____________________________________________


2
    42 Pa.C.S.A. § 4132.
3
    Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).




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         [Appellant’s] PCRA petition on August 22, 2013 [finding] the
         issues raised were without merit.

PCRA Court Opinion, 10/1/2013, at 1-3. This timely appeal resulted.4

       On appeal, Appellant raises the following issues for our review:

         1. Whether the PCRA court erred in denying relief, in not
            finding that the sentencing court, th[e]n the PCRA court
            erred, in not specifying in the sentencing order, specific
            dates of time credit that is to be awarded to Appellant’s
            sentence?

         2. Whether the PCRA court erred, in denying PCRA relief, as
            the sentence imposed for violating probation was illegal,
            because running Appellant’s sentence consecutive,
            makes Appellant’s sentence and time spent in prison, in
            excess of the statutory maximum?

         3. Whether the PCRA court erred in denying PCRA relief, as
            the sentence imposed for violating probation was illegal,
            because the first violation of probation sentence was
            illegal?

         4. Whether the PCRA court erred, in not resentencing
            Appellant to a program for non-violent probation
            violators, pursuant to Senate Bill 100, now Act 122, or
            should have reduced his sentence?

         5. Whether the PCRA court erred in denying relief, in not
            finding that Appellant’s counsel was constitutionally
            ineffective, for not providing the sentencing court with
            official records of the time Appellant previously served,
            thus Appellant was not given specific dates of time
            credit?
____________________________________________


4
    Appellant filed a pro se notice of appeal on September 5, 2013. On
September 18, 2013, the PCRA court entered an order directing Appellant to
file a concise statement of errors complained of on appeal pursuant to
Pa.R.A.P. 1925(b). Appellant complied timely on September 30, 2013. The
PCRA court issued an opinion pursuant to Pa.R.A.P. 1925(a) on October 1,
2013.



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       6. Whether the PCRA court erred in denying relief, in not
          finding that counsel provided ineffective assistance of
          counsel, when counsel, did not raise, preserve, or object
          to the court, not having an up to date pre-sentence
          report?

       7. Whether the PCRA court erred in denying relief, in not
          finding that Appellant’s counsel was constitutionally
          ineffective for not raising, preserving, or objecting to the
          court, that Appellant was sentenced on the basis of
          inaccurate information?

       8. Whether the PCRA court erred, in denying relief, in not
          finding that counsel was constitutionally ineffective, for
          not raising, preserving, or objecting to the court, that
          Appellant’s sentence is excessive, and the court did not
          consider all relevant sentencing factors, which harsh
          results, show bias and partiality by the court?

       9. Whether the PCRA court erred, in denying relief, in not
          finding that Appellant’s counsel was ineffective for filing
          an untimely post-sentence motion, and not filing an
          appeal?

      10. Whether the PCRA court erred in denying relief, in not
          finding that Appellant’s counsel was constitutionally
          ineffective, for not preserving, raising, or objecting to the
          court that Appellant did not consent to a video hearing,
          nor did the court colloquy[y] Appellant for his consent,
          and Appellant received no notice of the video hearing?

      11. Whether the PCRA court erred in denying relief, in not
          finding that the PCRA judge should recuse himself from
          the proceedings, as his impartiality was clearly in
          question?

      12. Whether the PCRA court erred, in denying relief, as the
          PCRA court, in its 907 notice to dismiss, did not provide
          Appellant with specific findings of fact, and conclusions of




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             law, explaining the intended dismissal, and only stated
             that Appellant’s issues were without merit?

Appellant’s Brief at 4.5

       Our standard of review is as follows:

         On appeal from the denial of PCRA relief, our standard of
         review calls for us to determine whether the ruling of the
         PCRA court is supported by the record and free of legal
         error. The PCRA court's findings will not be disturbed unless
         there is no support for the findings in the certified record.
         The PCRA court's factual determinations are entitled to
         deference, but its legal determinations are subject to our
         plenary review.

Commonwealth v. Nero, 58 A.3d 802, 805 (Pa. Super. 2012) (internal

citations and quotations omitted).

       In Appellant’s first four issues, he claims that his current sentence and

his violation of probation sentence entered in 2004 are illegal. The thrust of

Appellant’s claims are that his sentences exceed the lawful maximum. First,

he claims that when the trial court imposed the current sentence, such

sentence would exceed the statutory maximum on the underlying offense if

the court did not credit Appellant for time already served. Appellant’s Brief

at 10-12.     He further argues that by imposing a sentence consecutive to

____________________________________________


5
   Appellant presented nine issues in his Rule 1925(b) statement, but set
forth 12 issues in his appellate brief. We note that Appellant lumped several
ineffective assistance of counsel claims into a single issue in his 1925(b)
statement and that all of the issues currently presented were fairly
encompassed within the 1925(b) statement, as well as within Appellant’s
PCRA petition and amended PCRA petition. Hence, Appellant has properly
preserved his issues for our review and we proceed to the merits of his
claims. We have reordered Appellant’s issues for ease of discussion.



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other sentences he is currently serving, his sentence is rendered illegal. Id.

at 13-14.   Appellant argues that his first violation of probation sentence was

illegal because the trial court imposed a mandatory minimum sentence plus

four years of probation. Id. at 14-16. Further, Appellant argues that the

trial court erred by failing to resentence him to a program for non-violent

probation violators. Id. at 16.

      This Court has previously determined,

        the term “illegal sentence” is a term of art that our Courts
        apply narrowly, to a relatively small class of cases. This
        class of cases includes: (1) claims that the sentence fell
        “outside of the legal parameters prescribed by the
        applicable statute”; (2) claims involving merger/double
        jeopardy; and (3) claims implicating the rule in Apprendi
        v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d
        435 (2000). These claims implicate the fundamental legal
        authority of the court to impose the sentence that it did.

        Most other challenges to a sentence implicate the
        discretionary aspects of the sentence. This is true even
        though the claim may involve a legal question, a patently
        obvious mathematical error, or an issue of constitutional
        dimension. Moreover, the mere fact that a rule or statute
        may govern or limit the trial court's exercise of discretion in
        sentencing does not necessarily convert the claim into one
        involving the legality of the sentence.

Commonwealth v. Robinson, 931 A.2d 15, 21 (Pa. Super. 2007).

      This Court has previously determined:

              When considering the sentence imposed after
        probation revocation, our review is limited to determining
        the validity of the probation revocation proceedings and the
        authority of the sentencing court to consider the same
        sentencing alternatives that it had at the time of the initial
        sentencing.     We note that upon sentencing following a
        revocation of probation, the trial court is limited only by the

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         maximum sentence that it could have imposed originally at
         the time of the probationary sentence. Pennsylvania law
         provides that once probation has been revoked, a sentence
         of total confinement may be imposed if any of the following
         conditions exist: (1) the defendant has been convicted of
         another crime; or (2) the conduct of the defendant indicates
         that it is likely that he will commit another crime if he is not
         imprisoned; or, (3) such a sentence is essential to vindicate
         the authority of court.

Commonwealth v. McAfee, 849 A.2d 270, 275 (Pa. Super. 2004) (internal

citations omitted).

       We have reviewed the certified record, the parties’ briefs, the relevant

law, and the PCRA court’s opinion entered on October 10, 2013. First, we

examined Appellant’s sentences. The PCRA court properly determined that

all of Appellant’s sentences, i.e., his current sentence and his prior

revocation sentences, were legal. The PCRA court determined that Appellant

was entitled to credit for time served on his current sentence and entered an

order to that effect, but recognized that the Department of Corrections is

responsible for computation of sentences, thus, any alleged erroneous

calculation must be challenged in the Commonwealth Court.            PCRA Court

Opinion, 10/10/2013, at 5-6.6           The PCRA court also rejected Appellant’s
____________________________________________


6
   See also Allen v. Com., Dep't of Corr., 2014 WL 4243454 (Cmwlth. Ct.
Aug. 27, 2014) (“Where a sentencing court clearly gives credit against the
[violation of probation] sentence for time served, it is [Department of
Corrections’ (DOC)] duty to carry out that sentencing order. DOC is bound
to follow a trial court's order granting an inmate credit for time served.
[…T]he sentencing court [may] specifically direct [the] DOC to credit [a]
sentence with ‘any time previously served on this matter.’ The sentencing
order triggered DOC's duty to credit [a defendant’s] sentence accordingly.”)




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contention that his first violation of probation sentence was illegal, because

the maximum sentence imposed on the underlying probation revocation was

below the statutory maximum.7             Id. at 7; see also Commonwealth v.

Gordon, 942 A.2d 174, 182 (Pa. 2007) (citation omitted) (“Pennsylvania

judges retain broad discretion to sentence up to and including the maximum

sentence authorized by statute; the only line that a sentence may not cross

is the statutory maximum sentence.”). The PCRA court also noted that the

Commonwealth initially agreed to waive the mandatory minimum sentence

on the underlying PWID conviction.               Id. at 7.   “[W]here probation is

violated, the trial court is free to impose any sentence permitted under the

Sentencing Code and is not restricted by the bounds of a negotiated plea

agreement between a defendant and prosecutor.”                 Commonwealth v.

Partee, 86 A.3d 245, 249 (Pa. Super. 2014). The PCRA court determined

that Appellant was not eligible for a non-violent probation violator program,

because he violated probation three times and should have filed for

reconsideration of his sentence 10 days after his last violation of probation

sentence was imposed in 2009.            Id. at 8.   Thus, we note that the PCRA

court lacked jurisdiction to entertain claims on Appellant’s 2009 judgment of

sentence because Appellant filed his PCRA petition more than a year later
____________________________________________


7
  Appellant’s underlying conviction for PWID cocaine carried a statutory
maximum sentence of 10 years of imprisonment. 35 P.S. §780-113(f)(1.1).
Appellant was sentenced to 59 to 119 months of incarceration, just under
the 10-year statutory maximum sentence.



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and he did not invoke a statutory exception to the PCRA’s one-year time-

bar. See Commonwealth v. Dickerson, 900 A.2d 407, 410 (Pa. Super.

2006) (“Generally, a petition for relief under the PCRA must be filed within

one year of the date the judgment is final unless the petition alleges, and

the petitioner proves, that an exception to the time for filing the petition set

forth at 42 Pa.C.S.A. § 9545(b)(1)(i)-(iii) is met.”). Further, the PCRA court

correctly observed that sentencing Appellant consecutively to any other

sentences he had received was discretionary, but not illegal.      PCRA Court

Opinion, 10/10/2013, at 6.    Upon review, we discern no abuse of discretion

or illegality of sentence regarding Appellant’s punishments.

      In his fifth, sixth, and seventh issues presented, Appellant contends

that trial counsel was ineffective for failing to provide the trial court with

official records showing his credit for time-served and for failing to request

an up-to-date sentencing report prior to the imposition of his current

sentence. Appellant’s Brief at 18-21.

      In order to succeed on a claim of ineffective assistance of counsel, an

appellant must prove that “(1) the underlying claim has arguable merit; (2)

no reasonable basis existed for counsel's actions or [inaction]; and (3)

appellant suffered prejudice as a result of counsel's error such that there is a

reasonable probability that the result of the proceeding would have been

different absent such error.”     Commonwealth v. Charleston, 94 A.3d

1012, 1029 (Pa. Super. 2014) (citation omitted).




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      In this case, the PCRA court concluded that prior counsel was not

ineffective for failing to request an up-to-date presentence investigation

(PSI) report or for failing to present specific dates for time-served.     We

agree. As previously stated, the computation of credit for time-served is left

to the Department of Corrections and can be challenged in Commonwealth

Court.   Such as happened here, the trial court was required to enter an

order entitling Appellant to credit and, thus, there is no merit to Appellant’s

ineffective assistance of counsel claim.

      With regard to Appellant’s claim that counsel was ineffective for failing

to request a current PSI report, the trial court has discretion to dispense

with a PSI report. See Pa.R.Crim.P. 702(A)(1) (“The sentencing judge may,

in the judge's discretion, order a pre-sentence investigation report in any

case.”). We have previously determined that “[i]n the absence of a PSI, the

court must conduct a pre-sentence inquiry such that it is apprised of the

particular circumstances of the offense, not limited to those of record, as

well as the defendant’s history and background.” Commonwealth v. Kelly,

33 A.3d 638, 642 (Pa. Super. 2011).

      Upon review of the certified record, including the notes of testimony

from the most recent violation of probation hearing, the trial court received

all of the pertinent information prior to imposing sentence. Appellant pled

guilty to felony drug charges, before another judge in the same jurisdiction,

in violation of his probation on the current matter. N.T., 12/15/2010, at 4-

10.   The trial court also recognized this was Appellant’s third violation of

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probation regarding his 2002 PWID conviction and the judge was familiar

with Appellant’s criminal history and personal background.          Id. at 2-4.

Appellant apprised the trial court that, at the time of the violation, he

procured illegal prescription drugs for a paralyzing injury and he was also

caring for his ailing father. Id. at 7-8.      In sentencing Appellant, the trial

court ultimately determined:

         […] I will say that [Appellant] being arrested a scant month
         and a half after one of my probations again has zero, zero
         probability of being rehabilitated. So, at this point, the
         balance that I must strike in favor of protecting the public
         from drug dealers, and taking into consideration his needs
         for rehabilitation, that balance falls heavily on the side of
         the law abiding public at this juncture.

Id. at 13.

      Moreover, Appellant does not argue that there was any pertinent

additional information that was not made known to the trial court prior to

imposition of his sentence. Accordingly, we conclude that the trial court was

apprised of all the pertinent information necessary by conducting a pre-

sentence inquiry.    Thus, we discern no abuse of discretion by the trial court

in sentencing Appellant without a PSI report.         Counsel cannot be deemed

ineffective for failing to raise a meritless claim.

      In appellate issues numbered eight and nine, Appellant contends that

counsel was ineffective for failing to object to his current sentence as

excessive and for then failing to file a timely post-sentence motion and

direct appeal challenging his sentence as excessive. Appellant’s Brief at 16-



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18, 21-23.       As previously noted, Appellant’s sentence was not illegal,

therefore, his challenge implicates the discretionary aspects of sentencing.

We have previously stated:

         […Appellant here] raises [a discretionary sentencing claim]
         in the context of an ineffectiveness claim. Appellant has
         failed to articulate any substantial question which would
         show that a lesser sentence was appropriate, in accordance
         with 42 Pa.C.S.A. § 9781. Had appellant directly appealed
         the sentence without stating a substantial question, our
         inquiry would end.     In light of the fact that appellant
         challenges trial counsel's effectiveness for failure to
         preserve the issue for appeal, however, we may consider
         whether appellant's underlying sentencing issue has
         arguable merit.

         This Court has held that the trial judge has broad discretion
         in imposing sentence.... If the sentence imposed is within
         statutory limits, there is no abuse of discretion, unless the
         sentence is manifestly excessive so as to inflict too severe a
         punishment.... Absent an abuse of discretion, a sentence
         imposed by the trial court will not be disturbed on appeal.

Commonwealth v. Lee, 585 A.2d 1084, 1090 (Pa. Super. 1991) (internal

citations omitted).8

       In the present case, upon revocation of probation, Appellant was

sentenced to 59 to 119 months of incarceration for the underlying PWID

cocaine conviction. As previously noted, the statutory maximum sentence is

10 years.     35 P.S. §780-113(f)(1.1). Therefore, as the sentence imposed

____________________________________________


8
  “The sentencing guidelines do not apply to sentences imposed as a result
of probation or parole revocations.” Commonwealth v. Coolbaugh, 770
A.2d 788, 792 (Pa. Super. 2001) (citation omitted).




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does not exceed that statutory maximum, there can be no abuse of

discretion unless the sentence is manifestly excessive so as to inflict severe

punishment. Upon our own review of the record, we are satisfied that the

trial court did not abuse its discretion, as it accounted for the fact that

Appellant “has multiple counts of probation violations and a contempt charge

for walking out of the courtroom during proceedings.” PCRA Court Opinion,

10/1/2013, at 12. Furthermore, the trial court also “follow[ed] the general

principle that the sentence imposed should call for confinement that is

consistent with the protection of the public, the gravity of the offense as it

relates to the impact on the life of the victim and on the community, and the

rehabilitative    needs   of   the   defendant.”   42   Pa.C.S.A.   §   9721(b).

Accordingly, we do not find the sentence to have been manifestly excessive

and cannot find trial counsel to have been ineffective for failing to file a

timely motion to reconsider the sentence, or a direct appeal challenging his

sentence as excessive, as such pleadings would have been futile.

      Next, Appellant argues that counsel was ineffective for failing to object

to a video conference at the 2010 violation of probation hearing. Appellant’s

Brief at 23.     Appellant complains he lacked notice of the video conference

and claims he “would have sent the court the circumstances surrounding his

direct violation, showing he sold the drugs, in hopes of getting pain

medication to support his addiction, Appellant would have been able to

prepare a defense, had witnesses in the courtroom to testify on his behalf,




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his family th[ere] for support, Appellant would have requested to be present

in the courtroom for the hearing.” Id. at 24 (record citation omitted).

      Upon review, Appellant has not shown he was prejudiced. During the

video conference, defense counsel explained that the probation violation

occurred because Appellant was injured in a shooting and had no medical

insurance, “[s]o he engaged in a negotiation apparently with an undercover

police officer to trade narcotics for OxyContin so that he could use the

painkillers himself.” N.T., 12/15/2010, at 4. Thus, the trial court had the

proffered information despite Appellant’s absence from the courtroom.

Appellant did not present a defense; he admitted to criminally engaging in

the narcotics transaction underlying his violation of probation.   Id. at 7-8.

Finally, “[w]hen raising a claim of ineffectiveness for the failure to call a

potential witness, a petitioner [must] establish[] that: (1) the witness

existed; (2) the witness was available to testify for the defense; (3) counsel

knew of, or should have known of, the existence of the witness; (4) the

witness was willing to testify for the defense; and (5) the absence of the

testimony of the witness was so prejudicial as to have denied the defendant

a fair trial.   Commonwealth v. Sneed, 45 A.3d 1096, 1108-1109 (Pa.

2012). Appellant has not established these prerequisites.     Thus, for all of

the foregoing reasons, Appellant’s ineffective assistance of counsel claim

pertaining to the video conference fails.

      In his eleventh issue presented, Appellant claims that the PCRA judge

was biased and should have recused. Appellant’s Brief at 7-9. Specifically,

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he claims that “[t]he judge[’s] disdain for Appellant, stem[s] from Appellant

leaving his courtroom during a recess on [May 28, 2003].”       Id. at 8.     In

support, Appellant cites a statement from the judge at a prior proceeding,

wherein the judge said he “will never forget that day, you were wearing

Muslim garb that day.”    Id., citing N.T., 2/10/2009, at 9.   Appellant also

claims the judge showed bias when he stated that Appellant had zero chance

of rehabilitation. Id.

      As the PCRA court notes, recusal is determined by a judge’s self-

assessment of whether he should volunteer to recuse from a matter pending

before   him.     PCRA   Court   Opinion,    10/1/2013,   at   4;   see    also

Commonwealth v. Kearney, 92 A.3d 51, 63 (Pa. Super. 2014). Upon our

review, the remarks at issue did not constitute impartiality or bias.       The

court referenced a prior incident wherein it held Appellant in contempt of

court for leaving the proceedings during a break. Said incident was but one

factor, as discussed above, in the court’s decision to impose Appellant’s

sentence. The court’s remark that Appellant was wearing Muslim garb was

not derogatory and did not show bias towards Appellant’s religion. Instead,

the judge emphasized that the event was memorable to him.                 In the

absence of record proof of judicial bias or prejudice, no relief is due on

Appellant’s claim that the PCRA court should have recused itself.

      Finally, Appellant claims that the PCRA court erred by dismissing his

PCRA petition without specifying its legal determinations in its Pa.R.Crim.P.

907 notice. Appellant’s Brief at 6-7. Here, upon review of the notice, the

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PCRA court stated it “determined the issues raised in the Amended Post

Conviction Relief Act Petition are without merit.”       Rule 907 Notice,

8/22/2013. “The purpose behind a Rule 907 pre-dismissal notice is to allow

a petitioner an opportunity to seek leave to amend his petition and correct

any material defects, the ultimate goal being to permit merits review by the

PCRA court of potentially arguable claims.” Commonwealth v. Rykard, 55

A.3d 1177, 1189 (Pa. Super 2012). Here, the PCRA court’s notice explained

its legal determination that there was no merit to Appellant’s claims based

upon the pleadings as presented. Appellant does not point to any material

defects that would have permitted further amendment. Thus, we discern no

error.     Moreover, “[a] PCRA petitioner is not entitled to an evidentiary

hearing as a matter of right, but only where the petition presents genuine

issues of material fact.” Commonwealth v. Keaton, 45 A.3d 1050, 1094

(Pa. 2012) citing Pa.R.Crim.P. 909(B)(2).     Hence, Appellant’s remaining

contention lacks merit.

         Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/27/2014




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