Com. v. Dennis, M. ( 2017 )


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  • J-S65036-17
    NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
    COMMONWEALTH OF PENNSYLVANIA             :      IN THE SUPERIOR COURT OF
    :            PENNSYLVANIA
    :
    v.                            :
    :
    MICHAEL DENNIS,                          :
    :
    Appellant               :           No. 3857 EDA 2016
    Appeal from the PCRA Order November 28, 2016
    in the Court of Common Pleas of Montgomery County,
    Criminal Division, No(s): CP-46-CR-0004749-2011
    BEFORE: OLSON, OTT and MUSMANNO, JJ.
    MEMORANDUM BY MUSMANNO, J.:                       FILED DECEMBER 12, 2017
    Michael Dennis (“Dennis”) appeals from the Order denying his Petition
    for relief filed pursuant to the Post Conviction Relief Act (“PCRA”).1 We affirm.
    The PCRA court summarized the relevant history underlying the instant
    appeal as follows:
    [O]n January 10, 2013, a jury convicted Dennis of six counts each
    of possession with intent to deliver and simple possession, four
    counts of criminal use of communications facility and one count
    each of corrupt organizations, dealing in proceeds of unlawful
    activities and criminal conspiracy.[2] These convictions arose out
    of an investigation that spanned from April of 2011, through May
    of 2011, conducted by the Montgomery County Detective Bureau,
    along with the Tredyffrin Township Police Department. The
    investigation included a wiretap and video surveillance, and
    uncovered a large and sophisticated cocaine distribution ring. The
    drug ring was centrally operated out of A & L Head’s Up Hair Studio
    at 932 Upper Gulph Road, Tredyffrin Township, Chester County,
    1   42 Pa.C.S.A. §§ 9541-9546.
    2See 35 P.S. § 780-113(a)(30), (16); 18 Pa.C.S.A. §§ 7512, 5111(a), 911,
    and 903(a).
    J-S65036-17
    Pennsylvania. Dennis was convicted for his major role in the drug
    distribution organization.
    On April 1, 2013, Dennis was sentenced to an aggregate
    term of 21 to 42 years’ imprisonment, which was based[,] in part,
    on a mandatory minimum sentencing scheme. On direct appeal,
    our Superior Court vacated the judgment of sentence and
    remanded for re-sentencing[,] because the mandatory minimum
    scheme had been held to be unconstitutional under Alleyne v.
    United States, 
    133 S.Ct. 2151
     (U.S. 2013). In all other respects,
    the judgment of sentence was affirmed.
    On November 20, 2014, [the trial court] resentenced Dennis
    to an aggregate term of 18 to 36 years’ imprisonment. A post-
    sentence [M]otion was not filed. Dennis appealed to our Superior
    Court, appealing the discretionary aspects of his sentence. The
    Superior Court found this issue [to be] waived[,] because it was
    not preserved with a post-sentence motion.                 See[]
    Commonwealth v. Dennis, 3542 EDA 2014 p. 5 (May 6, 2016)
    (unpublished). … No further review was sought.
    PCRA Court Opinion, 2/17/17, at 1-2.
    The PCRA court appointed the Office of the Public Defender (“OPD”) to
    represent Dennis.   However, due to a conflict, the attorney from the OPD
    withdrew, and the PCRA court appointed Joseph Hylan, Esquire (“PCRA
    counsel”), to represent Dennis. PCRA counsel filed a Petition to withdraw from
    representation, pursuant to Commonwealth v. Turner, 
    544 A.2d 927
     (Pa.
    1988), and Commonwealth v. Finley, 
    550 A.2d 213
     (Pa. Super. 1988) (en
    banc). The PCRA Court issued a Notice pursuant to Pa.R.Crim.P. 907 notifying
    Dennis of its intention to dismiss Dennis’s PCRA Petition without a hearing.
    Dennis filed a pro se Response to the Notice, claiming that his sentencing
    counsel rendered ineffective assistance by not preserving a challenge to the
    -2-
    J-S65036-17
    discretionary aspects of sentencing for review during direct appeal. Dennis
    did not claim that his PCRA counsel rendered ineffective assistance.
    On November 28, 2016, the PCRA court denied Dennis’s PCRA Petition.
    Dennis, represented by private counsel, timely filed a Notice of Appeal, and a
    court-ordered Pa.R.A.P. 1925(b) Concise Statement of matters complained of
    on appeal.
    Dennis presents the following claim for our review: “Did the PCRA court
    err by failing to review one of [Dennis’s] stated claims and allowing counsel
    to withdraw after he had previously failed to address the claim in his Finley
    letter?” Brief for Appellant at 4.
    Dennis claims that the PCRA court improperly permitted his PCRA
    counsel to withdraw, where the court and PCRA counsel had failed to address
    one of his claims. Id. at 6. Dennis asserts that his PCRA counsel failed to
    meet the standards required to withdraw from representation, and the PCRA
    court improperly failed to conduct its own independent review of the case. Id.
    at 8. Dennis directs our attention to an “affidavit” secured from his brother,
    a co-defendant, after trial.         Id.   According to Dennis, his brother
    acknowledged that Dennis had no knowledge of or involvement with the drugs
    found in the apartment next to the barbershop.       Id.   This claim was not
    addressed in PCRA counsel’s Finley letter. Id. Dennis challenges the PCRA
    court’s determination that the “affidavit” is not exculpatory, because “this is
    the kind of determination that should only be made after counsel’s advocacy
    -3-
    J-S65036-17
    and after a more thorough, independent review before a petition is dismissed.”
    Id.
    Dennis further directs our attention to the evidence of record, which, he
    argues, is not overwhelming. Id. at 9. Specifically, Dennis states that only
    six of the 300 intercepted telephone calls involved him discussing “innocuous
    things” with his brother; he was only seen in or near the barbershop for a total
    of less than thirty minutes; and he was not seen making “verifiable” sales.
    Id. Under these circumstances, Dennis claims, the “affidavit” from his brother
    could have affected the verdict. Id.
    “In reviewing the denial of PCRA relief, we examine whether the PCRA
    court’s determination is supported by the record and free of legal error.”
    Commonwealth v. Montalvo, 
    114 A.3d 401
    , 409 (Pa. 2015) (citation and
    internal quotation marks omitted).
    In its Opinion, the PCRA court addressed Dennis’s claim and concluded
    that it lacks merit. See PCRA Court Opinion, 2/17/17, at 5-13. We agree
    with the sound reasoning of the PCRA court, as set forth in its Opinion, and
    affirm on this basis as to Dennis’s claim. See 
    id.
    Order affirmed.
    -4-
    J-S65036-17
    Judgment Entered.
    Joseph D. Seletyn, Esq.
    Prothonotary
    Date: 12/12/2017
    -5-
    Circulated 11/20/2017 11:59 AM
    y.
    IN THE COURT        0   COMMON PLEAS OF MONTGOMERY COUNTY
    PENNSYLVANIA
    CRIMINAL DIVISION                                    rJ
    21:!IT
    COMMONWEALTH OF PE NSYLVANIA                     :           CP-46-CR-0004749-2011
    V.
    MICHAEL F. DENNIS                                            3857 EDA 2016
    OPINION
    CARPENTER J.                                                 FEBRUARY 16, 2017
    FAC UAL AND PROCEDURAL HISTORY
    Appellant, Mi hael F. Dennis ("Dennis"), has filed this counseled
    appeal from the Final Order of Dismissal dated November 28, 2016, dismissing
    his petition seeking collateral relief pursuant to the Post -Conviction Relief Act
    ("PCRA"), 42 Pa.C.S.A. §§9541-9546. The          dismissal was based upon PCRA
    counsel's Turner/Finley'         o   merit letter, this Court's independent review of the
    record and Dennis' respo se to the Pa.R.Crim.P. 907 pre -dismissal notice.
    By way   of a b ief background, on January 10, 2013, a jury convicted
    Dennis of six counts each of possession with intent to deliver and simple
    possession, four counts o criminal use of communications facility and one
    count each of corrupt org nizations, dealing in proceeds of unlawful activities
    and criminal conspiracy. These convictions arose out an investigation that
    Commonwealth v. Turn r, 
    544 A.2d 927
     (Pa. 1988) and Commonwealth v. Finley, 
    550 A.2d 213
     (Pa.Super. 1988).
    spanned from April of 2011, through May of      2       11, conducted by the
    Montgomery County Detective Bureau, along           th the Tredyffrin Township
    Police Department. The investigation included                retap and video surveillance,
    and uncovered a large and sophisticated coca].      e        distribution ring. The drug
    ring was centrally operated out of A   &L   Head' Up Hair Studio at 932 Upper
    Gulph Road, Tredyffrin Township, Chester Co nty, Pennsylvania. Dennis was
    convicted for his major role in the drug distrib tion organization.
    On April 1, 2013, Dennis was sent nced to an aggregate term of 21
    to 42 years' imprisonment, which was based i part, on a mandatory minimum
    sentencing scheme. On direct appeal, our Supe for Court vacated the judgment
    of sentence and remanded for re -sentencing b cause the mandatory minimum
    scheme had been held to be unconstitutional nder Alleyne v. United States,
    
    133 S.Ct. 2151
     (U.S. 2013). In all other respects the judgment of sentence was
    affirmed.
    On November 20, 2014, this Court resentenced Dennis to an
    aggregate term of 18 to 36 years' imprisonme t. A post -sentence motion was
    not filed. Dennis appealed to our Superior Cou t, appealing the discretionary
    aspects of his sentence. The Superior Court fo nd this issue waived because it
    was not preserved with a post -sentence motio       .    See, Commonwealth v. Dennis,
    3542 EDA 2014 p.   5   (May 6, 2016) (unpublishe        ).    The Superior Court affirmed
    the judgment of sentence on May 6, 2016. No urther review was sought.
    On July 20, 2016, Dennis filed a ti ely pro se PCRA petition, at
    issue in this appeal. The Public Defender's Off cer of Montgomery County was
    appointed to assist Denni with his petition; however, due to a conflict of
    interest the Public Defender's Officer was permitted to withdraw and new
    private PCRA counsel, Joseph Hylan, was appointed on August 16, 2016. On
    October 14, 2016, PCRA      c   unsel filed a Petition for Permission to Withdraw as
    Counsel and attached his Turner/Finley no merit letter, having found no
    meritorious issues to pursue. This Court reviewed the no merit letter,
    conducted an independent review of the record and issued a Pa.R.Crim.P. Rule
    907 pre -dismissal notice dated October 17, 2016. The Rule 907 notice informed
    Dennis of this Court's   int ntion to dismiss his PCRA petition without a hearing
    and informed him of his r ght to respond to the notice/ Dennis did file a pro se
    response on November 8, 2016, asserting ineffective assistance of counsel in
    failing to properly preserie his discretionary aspects of sentence issues on
    direct appeal. He did not claim or assert in any way that PCRA counsel was
    ineffective. The Final Ord r of Dismissal dated November 28, 2016 was issued.
    On December 14, 2016, Dennis filed a counseled Notice of Appeal.
    A   concise statement of er ors complained of on appeal was also filed in which
    Dennis' new counsel set forth the issues he is raising in this appeal. There are
    two issues and they read 4s follows:
    This Court erred by allowing counsel to withdraw
    from repreisenting Defendant in litigating his PCRA
    petition through a Finley letter because counsel did
    not accurately and adequately address Defendant's
    claim that sentencing and appellate counsel were
    ineffective for failing to preserve Defendant's
    discretionary sentencing challenge through a post -
    The order dated October 17, 2016, also permitted PCRA counsel to withdraw.
    3
    sentence otion and then again in a Rule 1925
    statement. nstead, in his Finley letter, PCRA
    I
    counsel incorrectly recounted Defendant's first
    appeal to t e Superior Court at 
    106 A.3d 178
    (Pa.Super. 013)(unpublished), but did not address
    Defendant' actual claim with respect to the appeal
    at 3542 ED 2014. This claim was specifically
    A
    raised by efendant in the pro se petition filed on
    July 18, 20 6. It is also respectfully averred that
    this Court' independent review of the pleadings
    was inade ate and in error for failing to recognize
    PCRA coun el's deficiency in this regard.
    This Court erred by allowing counsel to withdraw
    from repre enting Defendant in litigating his PCRA
    petition th ough a Finley letter because counsel did
    not accura ely and adequately address, or
    investigate Defendant's claim that another
    individual as aware that he did not own, possess,
    or control y of the drugs in question. The
    affidavit s pporting this claim from Anthony
    Dennis was attached to Defendant's July 18, 2016
    pro se PCRI petition. PCRA counsel was duty-
    bound to i vestigate this affidavit and claim by
    failed to d so, and indeed did not reference this
    affidavit a d claim but failed to do so, and indeed
    did not ref rence this affidavit in his Finley letter. It
    is also res ectfully averred that this Court's
    independent review of the pleadings was
    inadequate and in error for failing to recognize
    PCRA cou sel's deficiency in this regard.
    ISSUES
    The issues on appeal as outlined above have been reformatted so
    that they may be reviewe in a concise fashion.
    I.    Whether Dennis' ineffectiveness of PCRA counsel claims are waived, when
    they were not raised, prior to this appeal.
    II.   Whether this Court's conducted an proper independent review of the
    pleadings, when granting PCRA counsel's request to withdraw.
    4
    DISCUSSION
    The standards for reviewing the P RA court's denial of a PCRA
    claim are as follows:
    [A]n appellate court reviews the P RA    court's findings
    of fact to determine whether they re supported by the
    record, and reviews its conclusion of law to determine
    whether they are free from legal er or. The scope of
    review is limited to the findings of the PCRA court and
    the evidence of record, viewed in t e light most
    favorable to the prevailing party at the trial level.
    Commonwealth v. Charleston, 
    94 A.3d 1012
    ,      1    11   18-19 (Pa. Super. 2014) (some
    citations omitted).
    I.     Dennis' ineffectiveness of PCRA counsel laims are waived, when they
    were not raised prior to this appeal.
    Dennis' appellate issues are waive to the extent that they
    challenge PCRA counsel's stewardship of the    P1        RA   proceedings because of his
    failure to raise these assertions of ineffectiven ss in response to this Court's
    Rule 907 notice. "[W]hen counsel files a Turner Finley no -merit letter to the
    PCRA court, a   petitioner must allege any claim of ineffectiveness of PCRA
    counsel in a response to the court's notice of i tent to dismiss."
    Commonwealth v. Ford, 
    44 A.3d 1190
    , 1198 (P. .Super. 2012); see also
    Commonwealth v. Rykard, 
    55 A.3d 1177
    , 1186 (Pa.Super.2012), ("Pursuant to
    [Commonwealth v. Pitts, 
    981 A.2d 875
     (2009)        ],    a petitioner waives issues of
    PCRA   counsel's effectiveness regarding Turner, Finley requirements if he
    declines to respond to the PCRA court's notice of intent to dismiss."). Here,
    5
    Dennis did file a response to this Court's Rule 907 notice; however, the only
    issue that Dennis raised was that of the alleged ineffectiveness of appellate
    counsel in failing to file a post -sentence motion challenging the discretionary
    aspects of sentencing, so he issue would not have been waived on appeal.
    Dennis did not raise any i sue regarding PCRA counsel's handling of his PCRA
    petition. Accordingly, whi e this 1925(a) Opinion will address his appellate
    issue that this Court erred in permitting PCRA counsel to withdraw pursuant to
    Turner and Finley, it will of address Dennis' allegations of PCRA alleged
    ineffectiveness.
    II.   This Court's conducted an proper independent review of the pleadings,
    when granting PCRA counsel's request to withdraw.
    When reviewing the PCRA court's decision to relieve counsel from
    representation of a petitioner, we consider the following principles.   A PCRA
    petitioner has a rule -based right to counsel in a first PCRA proceeding.
    Commonwealth v. Figueroa, 
    29 A.3d 1177
    , 1180 (Pa.Super. 2011). Generally,
    counsel's duty is either to amend a pro se petition or to seek withdrawal from
    representation if he finds no merit to the petition. Commonwealth v.
    Karanicolas, 
    836 A.2d 940
    , 946 (Pa.Super. 2003). "The Turner/Finley decisions
    provide the manner for post -conviction counsel to withdraw from
    representation." Commonwealth v. Rykard, 
    55 A.3d 1177
    , 1184 (Pa. Super.
    2012). Under Turner/Finl y,
    [i]ndependen review of the record by competent
    counsel is recluired before withdrawal is permitted.
    Such independent review requires proof of:
    6
    1) A"no-meri " letter by PC[R]A counsel detailing the
    nature and   e tent of his review;
    2) The "no -mg rit" letter by PC[R]A counsel listing each
    issue the peti tioner wished to have reviewed;
    3) The PC [R] counsel's "explanation", in the "no -
    merit" letter, of why the petitioner's issues were
    meritless;
    4) The PC[R] court conducting its own independent
    review of the ecord; and
    5) The PC[R]Ai court agreeing with counsel that the
    petition was eritless.
    Commonwealth v. Wid           ,   
    29 A.3d 816
    , 817-18 (Pa.Super. 2011) (citations
    omitted). A claim based   o       legal error in PCRA counsel's withdrawal from
    representation, "although necessarily discussing PCRA counsel's alleged
    ineffectiveness, is not an ineffectiveness claim." Rykard, 
    55 A.3d at 1184
    .
    a.   Discretionary aspects of sentencing
    On appeal, D nnis contends that this Court erred in its
    independent review of th pleadings and in permitting PCRA counsel to
    withdraw because counsel did not accurately and adequately address his claim
    that sentencing and appellate counsel were ineffective for failing to preserve
    his discretionary sentencing challenge through a post -sentence motion. Dennis
    argues in support thereof that PCRA counsel incorrectly recounted Defendant's
    first appeal to the Superior Court at 
    106 A.3d 178
     (Pa.Super. 2013)
    (unpublished), but did not address Defendant's actual claim with respect to the
    appeal at 3542 EDA 2014 However, PCRA counsel's Turner/Finley letter belies
    these allegations.
    While it is tru e that PCRA counsel addressed the alleged
    ineffectiveness of Dennis' appellate counsel in his first appeal, noting that
    7
    rt
    counsel was actually successful in that appeal y advocating for resentencing
    Co
    based upon Alleyne, he also addressed Dennis allegation that he raised in his
    IN)
    pro se PCRA petition and now on appeal, nam ly that the sentence he received
    upon re -sentencing on November 20, 3014, wa harsh and excessive. In fact,
    PCRA    counsel's analysis was nearly two pages n length, explaining to Dennis
    r.
    why even if a post -sentence motion was filed i appeal 3542 EDA 2014 and the
    issue had been properly preserved, the underl ng issue challenging the
    discretionary aspects of his sentence lacks me it and the appeal of this issue
    would not be successful. Therefore, this Court properly permitted PCRA
    counsel to withdraw on the basis of his Tuner Finle letter.
    This Court's independent analysis concluded the same as did PCRA
    counsel; that the imposed sentence was prope and would survive a challenge
    to the discretionary aspects on appeal.
    Assuming arguendo the issue was properly preserved and it raised
    a   substantial question so that the Superior Co rt agreed to review it, the issue
    lacks merit, our appellate court's standard of eview of a challenge to the
    discretionary aspects of sentence is well -settle
    Sentencing is a matter vested in t e sound discretion
    of the sentencing judge, and a se tence will not be
    disturbed on appeal absent a man fest abuse of
    discretion. In this context, an abu e of discretion is not
    shown merely by an error in judg ent. Rather, the
    appellant must establish, by refer nce to the record,
    that the sentencing court ignored r misapplied the
    law, exercised its judgment for re sons of partiality,
    prejudice, bias or ill will, or arrive at a manifestly
    unreasonable decision.
    8
    Commonwealth v. Antidormi, 
    84 A.3d 736
    , 760 (Pa.Super. 2014).
    On November 20, 2014, a re -sentencing hearing was held, and at
    the time this Court incorporated all of its prior remarks, reasons and logic from
    the original sentencing on April   1,   2013, for the 18 to 36 years' of
    imprisonment it was about to impose. On April        1,   2013, this Court explained its
    sentence as follows:
    Well, the Court does have the benefit of a presentence
    investigation nd report, which I have carefully
    considered in this matter, along with the Sentencing
    Code and sentencing guidelines, the information
    supplied today by counsel, and in advance by way of
    letters.
    It is true that Mr. Dennis does enjoy the support of
    family and friends even after his conviction for these
    numerous felony offenses.
    As pointed out by the Commonwealth, he does have
    three prior convictions. On each occasion he was
    placed on probation; never violated probation and
    never has served a prison sentence, according to the
    report.
    ***
    The report doles set forth his social history. He did
    have the benefit of an average childhood, according to
    him; that is without the benefit of a present father. He
    is in good physical health; has no history of mental
    problems. Helreported that he had been sexually
    abused at age eight by two separate baby-sitters. This
    lasted for a prriod of time. Denied using drugs or
    alcohol. He graduate from Conestoga High School and
    went to Florida Atlantic University and Central State
    University. He has been someone who has been
    productively mployed in different activities.
    9
    The Wisconsi Risk Assessment here is a needs score
    of 14 and a ri k score of 14. They list positive and
    certain potential areas for concern.
    What we are ealing with is, of course, a very, very
    large cocaine 4 istribution organization. The defendant
    was a central art in that. This operated over a
    considerable eriod of time. He was instrumental in
    putting largequantities of cocaine into the hands of
    lesser drug d alers and ultimately drug addicts. Quite
    clearly, this is a significant danger to society.
    He clearly needs a lengthy prison sentence as
    punishment f r the length and breadth of his criminal
    activity, and a so to stand as a deterrent to others who
    might look at this as something they might want to do.
    Eventually yo are going to be caught if you engage in
    this activity. is engagement in this activity was of a
    larger scale and any lesser sentence would depreciate
    the seriousness of this crimes he committed and been
    convicted of. Clearly, a consecutive sentence is
    appropriate here.
    (Sentencing 4/1/13 pp. 48 - 50).
    Factors to be considered when determining a defendant's sentence
    include the character of the defendant and the particular circumstances of the
    offense in light of the legislative guidelines for sentencing. Commonwealth v.
    Scott, 
    860 A.2d 1029
    , 103' (Pa.Super. 2004). The sentence imposed must be
    consistent with the protec ion of the public, the gravity of the offense and the
    rehabilitative needs of the defendant. 
    Id.
     "Where pre -sentence reports exist, we
    shall   ...   presume that the 'entencing judge was aware of relevant information
    regarding the defendant's character and weighed those considerations along
    with mitigating statutory actors. A pre -sentence report constitutes the record
    and speaks for itself." Co         onwealth   v.   Devers, 
    519 Pa. 88
    , 
    546 A.2d 12
    , 18
    10
    (1988). Further, "[h]aving been fully informed b the presentence report, the
    sentencing court's discretion should not be dis rbed." Id.; see also,
    Commonwealth v. Egan, 
    679 A.2d 237
    , 239 (Pa. uper. 1996) (The court is
    required to place its reasons for the sentence      o   the record and this
    requirement can be satisfied by indicating it has reviewed a pre -sentence
    report).
    As the cited record reflects, this Court did consider all of the
    relevant factors. Accordingly, Dennis' sentence was proper. Accordingly,
    counsel cannot be ineffective because the unde lying issue lacks merit.
    b. Undated Letter purportedly fro     Anthony Dennis attached to
    pro se PCRA petition.
    Lastly, it is averred that this Court s erred in its independent review
    of the pleadings and in permitting PCRA couns 1 to withdraw because PCRA
    counsel did not address the "affidavit" by Ant ony Dennis which was attached
    to his pro   se   PCRA   petition.
    Attached to Dennis' pro se PCRA p tition is an undated letter
    purportedly from Anthony Dennis. It is not no arized or verified in any way;
    therefore, it is not an affidavit as characterize by appellate counsel. It is
    simply a letter which states that the drugs fou d in the apartment next to the
    barber shop did not belong to Dennis; rather t ey belonged to Anthony Dennis,
    the purported author of the letter. It is also st ted that Anthony Dennis would
    testify to this at Dennis' next sentencing heari g. It is important to note that
    11
    Anthony Dennis was charted and pled guilty for his role as the king pin in the
    same drug ring. Anthony Dennis is also Dennis' brother.
    Frist, PCRA counsel had no duty to investigate this letter. While it is
    the duty of the lawyer to investigate the circumstances of the case, counsel is
    required to pursue only that information which he knows or has reason to
    know would be helpful to the defense. Commonwealth v. Fierst, 
    620 A.2d 1196
    ,
    1204 (Pa.Super. 1993). Here, even if assuming the letter is what it purports to
    be, a letter from Dennis' brother, Anthony Dennis, it would not have helped the
    defense because there   wads   an overwhelming amount of evidence presented at
    trial, wiretap and video surveillance evidence, the Commonwealth relied on to
    convict Dennis. The fact that Anthony Dennis is willing to take credit for the
    drugs found in the apartment next to the barbershop is insignificant.
    Even if PCRA counsel had a duty to investigate this purported letter,
    no prejudice resulted to Dennis in his failure to do so. Assuming PCRA counsel
    did investigate this letter and determined that it was in fact written by Anthony
    Dennis and that Anthony Dennis is willing to testify at a new trial that the
    drugs found in the apartment next to the barbershop belonged to him, PCRA
    counsel could have done one of three things. First, to address the issue in his
    no merit letter after findi g it to be frivolous; second, assert in an amended
    PCRA   petition that trial counsel was ineffective in failing to present this
    testimony at trial or third assert in an amended PCRA petition that this letter is
    exculpatory evidence that has subsequently become available and would have
    changed the outcome of the trial if it had been introduced. See 42 Pa.C.S.A.
    12
    9543(a)(2)(vi). However, t ere was no prejudice to PCRA counsel's failure to do
    so. There is no prejudice    ecause even had PCRA counsel investigated the letter
    and asserted the underlyi g issue in an amended petition, it would not have
    changed the outcome of Ole PCRA proceedings and would not entitle Dennis to
    post -conviction relief. Thi Court would have dismissed the amended petition
    without a hearing becaus there was neither prejudice from trial counsel's
    failure to call Anthony De    is as a witness, a witness of dubious credibility as
    Dennis' brother and convicted drug dealer, nor is this letter "exculpatory
    evidence" that would entitle Dennis to a new trial.
    CONCLUSION
    Based on the orgoing analysis, the denial of post -conviction relief
    should be affirmed.
    BY THE COURT:
    (,),,A_C- ,
    WILLIAM R. CARPENT R
    COURT OF COMMON PLEAS
    MONTGOMERY COUNTY
    PENNSYLVANIA
    38TH JUDICIAL DISTRICT
    Copies sent on February 16, 2017
    By Interoffice Mail to:
    Court Administration
    By First Class Mail to:
    Todd M. Mosser, Esquire
    13