J-S53034-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA         :   IN THE SUPERIOR COURT OF
                                         :         PENNSYLVANIA
                    Appellee             :
                                         :
              v.                         :
                                         :
    TYUAN SIMON                          :
                                         :
                    Appellant            :        No. 3204 EDA 2017

              Appeal from the PCRA Order September 12, 2017
            In the Court of Common Pleas of Montgomery County
            Criminal Division at No(s): CP-46-CR-0007840-2012


BEFORE:      GANTMAN, P.J., OTT, J., and PLATT*, J.

MEMORANDUM BY GANTMAN, P.J.:                    FILED FEBRUARY 26, 2019

        Appellant, Tyuan Simon, appeals from the order entered in the

Montgomery County Court of Common Pleas, which denied Appellant’s first

petition brought under the Post Conviction Relief Act (“PCRA”).1 We affirm.

        The relevant facts and procedural history of this case are as follows.

During a grand jury hearing on July 18, 2012, Christopher Carbone testified

another prison inmate had told Mr. Carbone that Appellant had hired the

inmate to kill Victim. Subsequently, the Commonwealth charged Appellant

with first-degree murder and related offenses arising out of the shooting

death of Victim. Appellant proceeded to a multi-day jury trial on June 24,

2013.    At trial, Mr. Carbone recanted his grand jury testimony, indicating,

inter alia: (i) his attorney had coerced him to testify at the grand jury


1   42 Pa.C.S.A. §§ 9541-9546.
____________________________________
* Retired Senior Judge assigned to the Superior Court.
J-S53034-18


hearing, because he led Mr. Carbone to believe the Commonwealth would

pursue a lesser sentence against Mr. Carbone in his pending criminal case if

he testified; and (ii) after the grand jury hearing, someone had threatened

to harm Mr. Carbone and his family if he testified against Appellant at trial.

On June 27, 2013, a jury convicted Appellant of first-degree murder,

solicitation to commit murder, and conspiracy to commit murder. The court

sentenced Appellant on September 20, 2013, to life without the opportunity

of parole (“LWOP”).    This Court affirmed the judgment of sentence on

December 12, 2014, and our Supreme Court denied allowance of appeal on

May 13, 2015. See Commonwealth v. Simon, 116 A.3d 686 (Pa.Super.

2014) (unpublished memorandum), appeal denied, 632 Pa. 662, 116 A.3d

604 (2015).

      On May 3, 2016, Appellant timely filed his first and current pro se

PCRA petition.   Appellant subsequently retained PCRA counsel.      Appellant

filed an amended PCRA petition on May 4, 2017, and a supplemental PCRA

petition on July 25, 2017, in which Appellant raised claims of ineffective

assistance of trial and appellate counsel. On August 7, 2017, the PCRA court

issued Rule 907 notice.   On August 17, 2017, Appellant filed a “Motion to

Continue,” requesting the court to allow Appellant additional time to obtain

an affidavit from Mr. Carbone regarding his trial testimony.       The court

denied Appellant’s motion on August 18, 2017. The court, however, allowed

Appellant to present an after-discovered evidence claim in his response to



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the Rule 907 notice and extended the time for filing a Rule 907 notice

response. On September 11, 2017, Appellant filed a response to Rule 907

notice. In the September 11th filing, Appellant alleged Mr. Carbone recanted

his trial testimony that he had been threatened or coerced to retract his

grand jury testimony.     Appellant appended to his September 11 th filing an

affidavit of Mr. Carbone. On September 13, 2017, the PCRA court dismissed

Appellant’s PCRA petition.

      On September 29, 2017, Appellant timely filed a pro se notice of

appeal and request for counsel. The PCRA court appointed new counsel on

October 30, 2017. The PCRA court ordered Appellant on November 2, 2017,

to file a concise statement of errors complained of on appeal per Pa.R.A.P.

1925(b); Appellant failed to comply. Nevertheless, the PCRA court issued a

Rule 1925(a) opinion on December 1, 2017. On December 8, 2017, counsel

sent a letter to the PCRA court explaining he did not file a Rule 1925(b)

statement on behalf of Appellant, because counsel believed he had a

potential conflict of interest in representing Appellant. Despite his perceived

conflict of interest, counsel filed in this Court a brief on behalf of Appellant.

      We returned this matter briefly to the PCRA court with instructions for

the court to appoint new counsel for Appellant and order counsel to file a

Rule 1925(b) statement. We gave the PCRA court 30 days after receipt of

Appellant’s compliant Rule 1925(b) statement to prepare a responsive

opinion, pursuant to Rule 1925(a), and transmit the certified record to this



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Court along with all new documents certified as part of that record.             We

have received the necessary documents as part of the certified record and

now proceed with the appeal.

      Appellant raises the following issues for our review:

         WHETHER TRIAL COUNSEL WAS INEFFECTIVE FOR
         FAILING TO OBJECT TO THE PROSECUTION’S USE OF
         UNSUBSTANTIATED CLAIMS OF WITNESS INTIMIDATION
         BY APPELLANT[?]

         WHETHER TRIAL COUNSEL WAS INEFFECTIVE FOR
         FAILING TO OBJECT TO OR PLACE ON THE RECORD THAT
         THE COMMONWEALTH USED ITS PEREMPTORY JURY
         STRIKES IN A RACIALLY DISCRIMINATORY MANNER[?]

         WHETHER APPELLANT’S [DIRECT APPEAL] COUNSEL WAS
         INEFFECTIVE FOR FAILING TO PROPERLY SPECIFY WHAT
         ELEMENTS OF THE OFFENSE HAD NOT BEEN MET IN THE
         [RULE] 1925(B) STATEMENT OF ERRORS[?]

         WHETHER APPELLANT IS ENTITLED TO A NEW TRIAL
         BASED UPON DUE PROCESS VIOLATIONS WHEN AFTER
         DISCOVERED EXCULPATORY EVIDENCE WHICH WAS
         UNAVAILABLE AT THE TIME OF TRIAL[?]

(Appellant’s Brief at 4).2

      Our standard of review of the denial of a PCRA petition is limited to

examining    whether     the   evidence    of   record    supports    the     court’s

determination    and    whether   its     decision   is   free   of   legal    error.

Commonwealth v. Conway, 14 A.3d 101, 108 (Pa.Super. 2011), appeal

denied, 612 Pa. 687, 29 A.3d 795 (2011). This Court grants great deference


2Appellant also claims the PCRA court should have conducted an evidentiary
hearing before it dismissed his PCRA petition.        (See Rule 1925(b)
Statement, filed December 20, 2018).


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to the findings of the PCRA court if the record contains any support for those

findings. Commonwealth v. Boyd, 923 A.2d 513, 515 (Pa.Super. 2007),

appeal denied, 593 Pa. 754, 932 A.2d 74 (2007).            We give no such

deference, however, to the court’s legal conclusions.    Commonwealth v.

Ford, 44 A.3d 1190, 1194 (Pa.Super. 2012). The PCRA court findings will

not be disturbed if the certified record supports the court’s findings.

Commonwealth v. Taylor, 933 A.2d 1035, 1040 (Pa.Super. 2007), appeal

denied, 597 Pa. 715, 951 A.2d 1163 (2008).       Further, a petitioner is not

entitled to a PCRA hearing as a matter of right; the PCRA court can decline

to hold a hearing if there is no genuine issue concerning any material fact,

the petitioner is not entitled to PCRA relief, and no purpose would be served

by any further proceedings.    Commonwealth v. Wah, 42 A.3d 335, 338

(Pa.Super. 2012); Pa.R.Crim.P. 907.

      After a thorough review of the record, the briefs of the parties,

applicable law, and the well-reasoned opinion of the Honorable Wendy

Demchick Alloy, we conclude Appellant’s issues merit no relief.    The PCRA

court opinion discusses and properly disposes of the questions presented.

(See PCRA Court Opinion, filed January 8, 2019, at 7-35) (finding: (3) trial

evidence was sufficient to allow jury to convict Appellant of first-degree

murder, conspiracy to commit murder, and solicitation to commit murder;

underlying claim that evidence was not sufficient to convict Appellant lacked

arguable merit; therefore, Appellant’s claim direct appeal counsel rendered



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ineffective assistance fails; (1) at trial, Commonwealth did not accuse

Appellant of witness intimidation; Mr. Carbone repeatedly blurted out that he

feared for his life and lives of his family, but his statements were not

responsive to any questions Commonwealth posed; exchange between

Commonwealth and Mr. Carbone made clear Commonwealth did not intend

to or expect Mr. Carbone to testify as he did; Commonwealth noted Mr.

Carbone’s demeanor became erratic when Appellant’s brother entered

courtroom; Mr. Carbone at no time stated, however, that Appellant or

anyone associated with Appellant threatened him or threatened to harm his

family; no reasonable pretrial investigation could have enabled trial counsel

to anticipate Mr. Carbone’s sudden outbursts; further, trial counsel elicited

from Mr. Carbone on cross-examination that Mr. Carbone did not believe

Appellant paid Bruce Woods to kill anyone, which supported Appellant’s

defense; (4) statements in Mr. Carbone’s affidavit are consistent with his

trial testimony; moreover, even if Mr. Carbone had recanted his trial

testimony, his testimony cannot be expunged from record and would remain

relevant and admissible to test Mr. Carbone’s veracity at new trial; new trial

would not rectify alleged harm Mr. Carbone’s testimony caused at first trial;

facts before jury at new trial would not be materially different from facts

adduced at first trial, and new trial jury would likely also learn Mr. Carbone

had changed his testimony because he feared retaliation; further, exchange

between prosecutor and Mr. Carbone at first trial did not prejudice Appellant



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in comparison to likely exchange between Commonwealth and Mr. Carbone

at retrial; (2) in his PCRA petition, Appellant failed to plead sufficient facts

or point to any direct evidence to prove purposeful discrimination on behalf

of Commonwealth in selecting jury; therefore, Appellant’s discriminatory jury

selection    claim   fails;   based   on    foregoing,   evidentiary   hearing   was

unnecessary, because Appellant’s PCRA petition raised no genuine issues of

material fact and hearing would have served no purpose).                 The record

supports the PCRA court’s rationale. Accordingly, we affirm on the basis of

the PCRA court opinion.

        Order affirmed.

        Judge Platt did not participate in the consideration or decision of this

case.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/26/19




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