Com. v. Williams, T. ( 2014 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
:
TELLY WILLIAMS, :
:
Appellant : No. 274 EDA 2013
Appeal from the PCRA Order December 28, 2012
In the Court of Common Pleas of Philadelphia County
Criminal Division No(s).: CP-51-CR-0602041-2005
BEFORE: GANTMAN, P.J., ALLEN, and FITZGERALD,* JJ.
MEMORANDUM BY FITZGERALD, J.: FILED DECEMBER 18, 2014
Appellant, Telly Williams, appeals from the order entered in the
Philadelphia County Court of Common Pleas denying his first Post Conviction
Relief Act1 (“PCRA”) petition. Appellant asserts that the PCRA court erred
when denying his claims that direct appeal counsel was ineffective for failing
to challenge: (1) the pretrial court’s denial of the motion to suppress
physical evidence and the (2) denial of his Pa.R.Crim.P. 600 motion to
dismiss. We affirm.
The PCRA court summarized the facts of this case as follows:
*
Former Justice specially assigned to the Superior Court.
1
42 Pa.C.S. §§ 9541-9546.
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On May 25, 2005 shortly after midnight, there was an
undercover drug investigation at the corner of 21st and
Titan Streets in South Philadelphia. The undercover
officers observed Appellant outside a corner bar engaged
in a drug related transaction with an unidentified male who
was on a bicycle. When the plainclothes officers
approached to investigate, both males fled. The man on
the bike got away. The officers caught Appellant after a
foot pursuit during which they observed him discard a
loaded semi-automatic handgun which was later found to
have an obliterated serial number. This weapon was
seized by a police officer from the vacant lot onto which it
had been thrown by Appellant. When [Appellant] was
searched the police seized two green and five clear ziplock
packets containing cocaine. Evidence was also introduced
that [Appellant] had no license, nor permit to carry the
gun.
PCRA Ct. Op., 3/26/14, at 2.
Prior to trial, the court denied Appellant’s motions to suppress
evidence and to dismiss pursuant to Pa.R.Crim.P. 600.2 The jury found
Appellant guilty of persons not to possess firearms, carrying a concealed
firearm without a license, carrying firearms on public streets in Philadelphia,
and possession of controlled substances. Appellant was sentenced to an
aggregate term of six to twelve years’ imprisonment. He filed a timely post-
sentence motion which was denied on November 16, 2006.
On direct appeal, this Court affirmed his judgment of sentence.
Commonwealth v. Williams, 3530 EDA 2006 (unpublished memorandum)
(Pa. Super. Sept. 5, 2008). The Pennsylvania Supreme Court denied his
2
The motions were litigated before the Honorable William J. Mazzolla on
March 16, 2006 and July 31, 2006 respectively.
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petition for allowance of appeal. Commonwealth v. Williams, 524 EAL
2008 (Pa. 2010). Appellant filed a timely pro se PCRA petition.3 Counsel
was appointed to represent him and was permitted to withdraw prior to filing
an amended petition. Current counsel was appointed and filed an amended
PCRA petition. The PCRA court dismissed the petition without a hearing.
This timely appeal followed. Appellant filed a court-ordered Pa.R.A.P.
1925(b) statement of errors complained of on appeal and the trial court filed
a responsive opinion.4
Appellant raises the following issues for our review:
Is [Appellant] entitled to post-conviction relief in the
form of a new trial or a remand for an evidentiary hearing
since the trial court erred when it denied relief in the
absence of an evidentiary hearing?
A. Is [Appellant] entitled to post-conviction relief in the
form of a new trial as a result of the ineffectiveness of
appellate counsel for failing to raise in the direct appeal
3
Appellant’s judgment of sentence became final on June 16, 2010, ninety
days after the Pennsylvania Supreme Court denied his petition for allowance
of appeal. See 42 Pa.C.S. § 9545(b)(3) (providing “a judgment becomes
final at the conclusion of direct review, including discretionary review in the
Supreme Court of the United States and the Supreme Court of Pennsylvania,
or at the expiration of time for seeking the review[ ]”). Appellant had until
June 16, 2011, to file his PCRA petition. See 42 Pa.C.S. § 9545(b)(1)
(providing PCRA petition must be filed within one year of date judgment
becomes final). Therefore, because he filed his PCRA petition on June 28,
2010, his petition is timely.
4
We note with disapproval the Commonwealth’s reliance in the argument
section of its brief upon its previously filed motion to dismiss and the PCRA
court’s opinion. See Commonwealth v. Dodge, 77 A.3d 1263, 1274-75
(Pa. Super. 2013), appeal denied, 91 A.3d 161 (Pa. 2014).
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the issue of the pretrial court’s denial of the motion to
suppress physical evidence?
B. Is [Appellant] entitled to post-conviction relief in the
form of an arrest of judgment or a remand for an
evidentiary hearing as a result of the ineffectiveness of
appellate counsel for failing to raise in the direct appeal
the issue of the pretrial court’s denial of the motion to
dismiss under Pa.R.Crim.P. 600?
Appellant’s Brief at 4.
“Our standard of review of the denial of a PCRA petition is limited to
examining whether the court’s determination is supported by the evidence of
record and free of legal error. This Court grants great deference to the
findings of the PCRA court if the record contains any support for those
findings.” Commonwealth v. Lane, 81 A.3d 974, 977 (Pa. Super. 2013)
(citations omitted), appeal denied, 92 A.3d 811 (Pa. 2014).
[C]ounsel is presumed to have provided effective
representation unless the PCRA petitioner pleads and
proves that: (1) the underlying claim is of arguable merit;
(2) counsel had no reasonable basis for his or her conduct;
and (3) Appellant was prejudiced by counsel’s action or
omission. To demonstrate prejudice, an appellant must
prove that a reasonable probability of acquittal existed but
for the action or omission of trial counsel. A claim of
ineffective assistance of counsel will fail if the
petitioner does not meet any of the three prongs.
Further, a PCRA petitioner must exhibit a concerted effort
to develop his ineffectiveness claim and may not rely on
boilerplate allegations of ineffectiveness.
Commonwealth v. Perry, 959 A.2d 932, 936 (Pa. Super. 2008)
(punctuation marks and citations omitted) (emphasis added).
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Additionally, a PCRA petitioner must demonstrate that the issues
raised by his petition have not been waived. Commonwealth v. Steele,
961 A.2d 786, 796 (Pa. 2008). “A PCRA claim 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 post-conviction proceeding. 42 Pa.C.S.
§ 9544(b).” Id. (quotation marks omitted). A PCRA claim of trial error,
which was not raised in a direct appeal, is generally not a basis for relief
unless an independent ineffective assistance of counsel claim is presented.
See id. at 799.
[T]he 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) (citations
omitted).
First, Appellant contends appellate counsel was ineffective for failing to
raise in the direct appeal the trial court’s denial of his motion to suppress
physical evidence. Appellant avers “undercover officers observed [him]
outside a corner bar engaged in what they believed to be a drug transaction
with an unidentified male on a bicycle. . . . When the plainclothes police
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officers approached to investigate, both males fled.” Appellant’s Brief
at 21 (emphasis added). Appellant concedes he was apprehended by the
police officers “after a foot pursuit during which they observed him
discard a loaded semi-automatic handgun which was later found to
have an obliterated serial number.” Id. at 21-22 (emphasis added). He
avers that the “police lacked reasonable suspicion to justify chasing,
stopping and searching” him. Id. at 40. Appellant argues that “[t]he mere
fact that a commercial transaction was observed does not mean that
criminal activity was afoot.” Id. at 41 (emphasis added). Appellant claims
that “[e]ven if the [transaction] occurred in a high crime area,” that fact is
not determinative. Id. (emphasis added). He states “any neighborhood in a
large urban environment such as Philadelphia will have a fair share of crime
and can be characterized as a ‘high crime area.’” Id. Appellant contends
the police lacked probable cause to arrest or search him. Id. at 42. He
avers that an exchange of items “between citizens in a public place, even a
place known to be frequented by drug traffickers, does not, without more,
establish probable cause to arrest those citizens.” Id. at 43.
Our standard of review in addressing a challenge to a
trial court’s denial of a suppression motion is
whether the factual findings are supported by the
record and whether the legal conclusions drawn from
those facts are correct. When reviewing the ruling of
a suppression court, we must consider only the
evidence of the prosecution and so much of the
evidence of the defense as remains uncontradicted
when read in the context of the record as a whole.
Where the record supports the findings of the
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suppression court, we are bound by those facts and
may reverse only if the legal conclusions drawn
therefrom are in error.
“It is within the suppression court’s sole province as
factfinder to pass on the credibility of witnesses and the
weight to be given their testimony.” Moreover, with
respect to our scope of review on suppression issues, our
Supreme Court has held: “it is appropriate to consider all
of the testimony, not just the testimony presented at the
suppression hearing, in determining whether evidence was
properly admitted.”
Commonwealth v. Clemens, 66 A.3d 373, 378 (Pa. Super. 2013)
(citations omitted).
In Clemens, this Court opined:
As we have explained, “[t]he Fourth Amendment to the
[United States] Constitution and Article I, Section 8 of [the
Pennsylvania] Constitution protect citizens from
unreasonable searches and seizures. To safeguard this
right, courts require police to articulate the basis for their
interaction with citizens in [three] increasingly intrusive
situations.” Our Supreme Court has categorized these
three situations as follows:
The first category, a mere encounter or request for
information, does not need to be supported by any
level of suspicion, and does not carry any official
compulsion to stop or respond. The second
category, an investigative detention, derives from
Terry v. Ohio[, 392 U.S. 1 (1968)] and its progeny:
such a detention is lawful if supported by reasonable
suspicion because, although it subjects a suspect to
a stop and a period of detention, it does not involve
such coercive conditions as to constitute the
functional equivalent of an arrest. The final
category, the arrest or custodial detention, must be
supported by probable cause.
Commonwealth v. Smith, [ ] 836 A.2d 5, 10 ([Pa.]
2003).
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. . . As noted above, an investigative detention is valid
when it is supported by reasonable suspicion. In the
words of the Pennsylvania Supreme Court:
Reasonable suspicion is a less stringent standard
than probable cause necessary to effectuate a
warrantless arrest, and depends on the information
possessed by police and its degree of reliability in
the totality of the circumstances. In order to justify
the seizure, a police officer must be able to point to
specific and articulable facts leading him to suspect
criminal activity is afoot. In assessing the totality of
the circumstances, courts must also afford due
weight to the specific, reasonable inferences drawn
from the facts in light of the officer’s experience
and acknowledge that innocent facts, when
considered collectively, may permit the investigative
detention.
Id. at 378-79 (citation omitted) (emphasis added).
In Clemens, the defendant contended the police lacked reasonable
suspicion to believe he engaged in a drug transaction arguing the officer
“saw nothing more than two men greet each other with a handshake or a
fistbump[, which is an action that is] completely consistent with innocent
behavior.” Id. at 379. This Court disagreed and opined:
[T]he record clearly supports the suppression court’s
conclusion that, at the time of the investigative detention,
[the officer] possessed reasonable suspicion to believe that
[the defendant] had just sold narcotics. First, although
[the officer] testified that he did not see the
particular objects that were being passed between
[the defendant] and the unidentified man, [he]
plainly testified that, based upon his experience and
training, he witnessed [the defendant] engage in a
hand-to-hand narcotics transaction with the other
individual. Thus, [the defendant] is factually incorrect to
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claim that “[the officer] saw nothing more than two men
greet each other with a handshake or a fistbump.”
Further, viewing the totality of the circumstances
surrounding the hand-to-hand transaction, we agree with
the suppression court that “an objectively reasonable
police officer would have reasonably suspected
criminal activity was afoot.” Indeed, during the
suppression hearing, [the officer] testified that he was
extremely familiar with the [area where the
transaction occurred] and was extremely experienced
in narcotics investigations. According to [the officer],
his years of experience and training had taught him
that the hand-to-hand transaction he witnessed was
most likely a narcotics transaction. . . . [S]ee also
[Commonwealth v. Holmes, 14 A.3d 89, 95 (Pa. 2011)]
(“In assessing the totality of the circumstances, courts
must afford due weight to the specific, reasonable
inferences drawn from the facts in light of the officer’s
experience”). [The officer] also testified that the
surrounding area was home to “nonstop” open-air
narcotics sales. [See also] Illinois v. Wardlow, 528
U.S. 119, 124, [ ] (2000) (holding “the fact that the stop
occurred in a ‘high crime area’ [is] among the relevant
contextual considerations in a Terry analysis”).
* * *
Given these “specific and articulable facts,” we agree
that “an objectively reasonable police officer would have
reasonably suspected” that [the defendant] had sold
narcotics to the unidentified man. As such, we agree that
the investigatory detention was properly supported by
reasonable suspicion.
Id. at 380 (footnote and some citations and alterations omitted) (emphases
added).
Probable cause exists where the facts and circumstances
within the knowledge of the officer are based upon
reasonably trustworthy information and are sufficient to
warrant a man of reasonable caution in the belief that the
suspect “has committed or is committing a crime.”
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“In determining whether probable cause exists, we apply a
totality of the circumstances test.”
Commonwealth v. Delvalle, 74 A.3d 1081, 1085 (Pa. Super. 2013)
(citations omitted) (emphasis added).
Instantly, the trial court opined:
Appellant’s first claim is that Appellate Counsel was
ineffective for failing to challenge, on appeal, the pre-trial
denial of his motion to suppress. Prior to trial Appellant
sought to suppress evidence of drugs, money and a gun
seized during the incident. A hearing on the motion was
conducted on March 16, 2006 before the Honorable
William Mazzolla. At the conclusion of the hearing Judge
Mazzolla denied the motion.
* * *
Clearly, based upon [the] facts, [the court] properly
denied the motion to suppress. After observing what he
reasonably believed to be a drug transaction, the officer
ha[d] reasonable suspicion to stop and detain Appellant.
Additional facts of Appellant’s subsequent flight and his
discarding a gun gave rise to probable cause to arrest
Appellant, retrieve the gun and search Appellant incident
to the arrest.
Trial Ct. Op. at 4-5. We agree no relief is due.
Officer Glen Keenan testified at the suppression hearing that he had
been employed by the Philadelphia Police Department for almost nineteen
years as an officer in the 17th Police District. N.T., 3/16/06, at 8. His
present assignment was narcotics enforcement. Id. He had the plainclothes
assignment for twelve years. Id. at 9. On the day of the incident he was
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assigned a detail with Officer Charles Wells, Officer Greg Stevens, and
Officer Lewis Gregg in the location of 21st and Titan Streets. Id. at 9-10.
[Commonwealth]: Did you go towards that location by
accident, or was that intentional based upon earlier
reports?
A: We go by the 12-52 Bar most likely 10 to 12 times in
the evening because it’s very heavy drug sales outside
there, along with gambling and weapons. . . .
Q: Generally speaking, is that bar located in what you
would define as a high crime area?
A: High drug and crime, yes.
Q: And is that primarily why you were patrolling there in
your plainclothes?
A: That’s correct.
* * *
Q: What was [Appellant] doing as you observed him for
the first time?
A: He was standing on the corner right outside the bar
talking to a male on a bicycle.
Q: Could you generally describe the male on the bicycle?
A: He was an older gentleman . . . .
I didn’t get a really good look at him.
My partner slowed the car up as we came down 21st
Street because we always looked to the left. They sell
drugs off the porch there, and right in front of the
bar, which would be directly in front of me, they sell right
in front of the bar.
And also right to the─to the right of the bar in the little
street we always slow down. . . . At which time I saw
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[Appellant] receive money from a male on the bike.
He reached into his pocket and pulled out a clear
plastic baggie, handed the money [sic5] to that male.
I told my partners, “Grab them guys,” at which
time─Officer Stevens was driving─he stopped right at the
corner.
[Appellant] went westbound down Titan Street.
The male on the bike went southbound on 21st Street─
Q: . . . At the point where the two men left the area,
[Appellant] on foot and the older gentleman on the
bicycle─
A: Right.
Q: ─had you or any of your partners said anything to
either or both of those two men?
A: No. I didn’t hear anybody say anything.
I didn’t have a chance (sic) say a word because by the
time we got the car stopped, he ran in front of the car, he
was running down the sidewalk on Titan Street.
I saw him reach into his waistband, at which point
he threw a gun, it hit a wall, it fell into an empty lot. I
yelled, “Gun.” I heard Officer Gregg yelling, “I’m coming
back; I’m coming back.”
Officer Stevens and Officer Wells went straight down
Titan Street. They passed [Appellant], which is something
we normally do so we can box him in, at which time I
stayed with the gun because it’s right across from the bar;
I was afraid somebody was going to come from the bar
and go over and get it.
I saw [Appellant] trying to get into a door, and
the people inside this house were pushing him back
5
We presume the officer meant handed the baggie to the male.
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out, at which time Officer Wells and Officer Stevens
stopped him. I went and recovered the weapon.
I went down, and I saw Officer Wells recover a clear
plastic baggie from [Appellant], two green-tinted packets
containing a large chunky off-white substance, and five
smaller packs of crack cocaine.
And then he also recovered $20.00 in U.S. currency.
I cleared the weapon, and we took [Appellant] to 24th and
Wolf for processing.
* * *
Q: And as a result of your previous experience and
training as a law enforcement officer, did you have
reason to suspect that illegal activity was taking
place in this transaction between the two men?
A: From my belief from that area I believe there was a
narcotics sale being made.
As we stopped the vehicle they both fled. Then I-I
believed more thoroughly that there was something going
on. And then he threw the gun against the wall.
* * *
Q: You said that two of your partners made the
apprehension as [Appellant] was endeavoring to get into a
house?
* * *
A: It was-I was looking down the street. [Appellant] was
banging on the door to try to get in. People were-
something stopped him from getting through the door, and
my partners grabbed him.
* * *
Q: At that point did you have the gun in your possession?
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A: I was looking. I wanted to make sure he didn’t come
back towards us and get by my partner, Officer Gregg. As
soon as I saw them physically grab him, I went over the
fence, got the gun, and came back out.
Q: Was the gun loaded?
A: Yes, it was.
It was loaded with 11 live rounds; ten in the magazine,
one in the chamber.
Id. at 10, 11-13, 14-15, 17, 18 (emphases added).
Officer Keenan, referring to the property receipt, indicated there was
one clear plastic baggie containing ”two large green tinted plastic packets
and five clear plastic packets with red dots, all containing an off-white
chunky substance, alleged crack-cocaine.” Id. at 21. The plastic bag was
consistent with the way narcotics are packaged for sale. Id. at 61. The trial
court denied the motion to suppress. Id. at 63.
As in Clemens, in the case sub judice, the officer explained that based
upon his experience, he saw a drug transaction between Appellant and
another male. He was experienced in narcotics investigations and was
familiar with the high crime area where the transaction took place.
Additionally, the officer saw Appellant discard a gun and flee. We agree with
the PCRA court that the officers had reasonable suspicion to suspect
Appellant had sold narcotics to the unidentified male. See Clemens, 66
A.3d at 378-80. Based upon the totality of the circumstances in the instant
case, the officers had a sufficient basis upon which to believe that Appellant
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had committed a crime, and thus, there was probable cause to arrest him.
See Delvalle, 74 A.3d at 1085. The record supports the findings of the
suppression court. See Lane, 81 A.3d at 977. Appellate counsel cannot be
deemed ineffective for failing to raise a meritless claim. See Perry, 959
A.2d at 936.
Lastly, Appellant contends appellate counsel was ineffective for failing
to raise the issue of the pretrial court’s denial of his motion to dismiss
pursuant to Pa.R.Crim.P. 600. Appellant’s Brief at 52. He avers that the
Commonwealth failed to exercise due diligence. Id. at 53. Appellant claims
the July 31, 2006 trial date was beyond the amended run date of June 26,
2006.6 Id.
“The proper scope of review is limited to the evidence on the record of
the Rule [600] evidentiary hearing, and the findings of the [trial] court. An
appellate court must view the facts in the light most favorable to the
prevailing party.” Commonwealth v. Ramos, 936 A.2d 1097, 1100 (Pa.
Super. 2007) (en banc) (punctuation omitted).
Rule 600 of the Pennsylvania Rules of Criminal Procedure
provides, in relevant part, as follows:
(A) (3) Trial in a court case in which a written complaint is
filed against the defendant, when the defendant is at
liberty on bail, shall commence no later than 365 days
from the date on which the complaint is filed.
6
We note that Appellant refers to the amended run date as June 26, 2007,
which we presume is a typographical error.
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(B) For the purpose of this rule, trial shall be deemed to
commence on the date the trial judge calls the case to
trial, or the defendant tenders a plea of guilty or nolo
contendere.
* * *
(C) In determining the period for commencement of trial,
there shall be excluded therefrom:
(1) the period of time between the filing of the written
complaint and the defendant’s arrest, provided that the
defendant could not be apprehended because his or her
whereabouts were unknown and could not be
determined by due diligence;
(2) any period of time for which the defendant
expressly waives Rule 600;
(3) such period of delay at any stage of the proceedings
as results from:
(a) the unavailability of the defendant or the
defendant’s attorney;
(b) any continuance granted at the request of
the defendant or the defendant’s attorney.
* * *
(G) For defendants on bail after the expiration of 365 days,
at any time before trial, the defendant or the defendant’s
attorney may apply to the court for an order dismissing the
charges with prejudice on the ground that this rule has
been violated. A copy of such motion shall be served upon
the attorney for the Commonwealth, who shall also have
the right to be heard thereon.
If the court, upon hearing, shall determine that the
Commonwealth exercised due diligence and that the
circumstances occasioning the postponement were beyond
the control of the Commonwealth, the motion to dismiss
shall be denied and the case shall be listed for trial on a
date certain. If, on any successive listing of the case, the
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Commonwealth is not prepared to proceed to trial on the
date fixed, the court shall determine whether the
Commonwealth exercised due diligence in attempting to be
prepared to proceed to trial. If, at any time, it is
determined that the Commonwealth did not exercise due
diligence, the court shall dismiss the charges and
discharge the defendant.
Pa.R.Crim.P. 600[7]
As the text of Rule 600(A) makes clear, the mechanical
run date comes 365 days after the date the complaint is
filed. We then calculate an adjusted run date pursuant to
Rule 600(C). . . .
Pursuant to Rule 600(A) and (C), we calculate the
mechanical and adjusted run dates as follows:
The mechanical run date is the date by which the trial
must commence under [Rule 600]. It is calculated by
adding 365 days (the time for commencing trial under
[Rule 600] ) to the date on which the criminal complaint is
filed. As discussed herein, the mechanical run date can be
modified or extended by adding to the date any periods of
time in which delay is caused by the defendant. Once the
mechanical run date is modified accordingly, it then
becomes an adjusted run date.
Id. at 1101-02 (footnote and citations omitted) (emphases added).
Instantly, the PCRA court opined:
The instant criminal complaint was filed on May 25,
2005. Trial should have commenced pursuant to Rule 600
within 365 days: on or before May 25, 2006. Trial
commenced on August 1, 2006, sixty-eight (68) days after
that mechanical run date. The record demonstrated that
the case previously was called for trial on August 8, 2005,
well before the 365 day deadline. Appellant’s counsel,
however, was unavailable and requested a continuance.
The case was continued until February 13, 2006. Pursuant
7
We note that Rule 600 was rescinded in 2012 and new Rule 600 adopted.
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to Pa.R.Crim.P. 600(c)(3)(b) this entire 189 day period,
from August 8, 2005 until February 13, 2006 was
excludable from the Rule 600 computation. Excluding that
period of time from the Rule 600 computation
demonstrated that Appellant was tried timely.
PCRA Ct. Op. at 5. We agree no relief is due.
We find the record belies Appellant’s contention that the
Commonwealth did not act with due diligence. As the PCRA court opined,
the 189 day period resulting from counsel’s request for a continuance is
excludable from the Rule 600 computation; therefore, Appellant was timely
tried. See Pa.R.Crim.P. 600(C)(3)(a)-(b). Accordingly, we find the trial
court did not abuse its discretion in denying the motion to dismiss pursuant
to Rule 600. See Ramos, 936 A.2d at 1100. Because the underlying claim
has no merit, appellate counsel was not ineffective for failing to raise the
issue on direct appeal. See Perry, 959 A.2d at 936.
We hold the PCRA court’s findings are supported by the record and
without legal error. See Lane, 81 A.3d at 977. We discern no abuse of
discretion in dismissing the PCRA petition without an evidentiary hearing.
See Wah, 42 A.3d at 338. Accordingly, we affirm the order dismissing the
PCRA petition.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/18/2014
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