Com. v. Hagens, K. ( 2021 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
KEVIN MARK HAGENS :
:
Appellant : No. 152 MDA 2019
Appeal from the PCRA Order Entered December 13, 2018
In the Court of Common Pleas of Lancaster County Criminal Division at
No(s): CP-36-CR-0000111-2014,
CP-36-CR-0000114-2014
BEFORE: LAZARUS, J., KUNSELMAN, J., and MURRAY, J.
MEMORANDUM BY MURRAY, J.: FILED APRIL 7, 2021
Kevin Mark Hagens (Appellant) appeals pro se from the order that
dismissed, without a hearing, his petition filed pursuant to the Post Conviction
Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. After review, we affirm.
This Court previously summarized the procedural history and facts as
follows:
At docket number CP–36–CR–0000111–2014 (111–2014),
Appellant was charged with involuntary deviate sexual intercourse
(IDSI), unlawful contact with a minor, and corruption of minors
for acts committed upon O.H., born in February 2007. At docket
number CP–36–CR–0000114–2014 (114–2014), Appellant was
charged with indecent assault, unlawful contact with a minor, and
corruption of minors for acts committed upon A.K., born in
February 2002.[FN] 1
On January 23, 2014, the Commonwealth filed a
[FN] 1
notice to consolidate the cases for trial pursuant to
Pa.R.Crim.P. 582(B)(1).
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On November 4, 2013, the Commonwealth filed a motion to
permit testimony by O.H. and A.K. by contemporaneous
alternative method pursuant to 42 Pa.C.S. § 5985. The
Commonwealth subsequently filed two petitions to admit
testimony under the tender years hearsay exception, 42 Pa.C.S.
§ 5985.1, and the court held hearings on the petitions on
December 1, 2014, and January 20, 2015. Relevant to this
appeal, the court allowed, inter alia, the admission of certain
hearsay statements made by O.H. to S.P. as substantive evidence
at trial.
A jury trial was held from January 28–30, 2015, after which
Appellant was found guilty of all charges. He was sentenced to an
aggregate term of 18 to 36 years of imprisonment. Specifically,
at docket number 111–2014, Appellant was sentenced to
concurrent terms of imprisonment of 16 to 32 years on the
charges of IDSI and unlawful contact with a minor, as well as a
concurrent term of imprisonment of two to four years for the
corruption-of-minors charge. At docket number 114–2014,
Appellant was sentenced to concurrent terms of imprisonment of
two to four years for the charges of indecent assault, unlawful
contact with minors, and corruption of minors. The aggregate
sentences imposed at each docket number were to be served
consecutively to one another, for a total aggregate sentence of 18
to 36 years of imprisonment.[FN] 2
[FN] 2Appellant was ordered to undergo an evaluation
by the Sexual Offenders Assessment Board (SOAB)
pursuant to the Sex Offender Registration and
Notification Act (SORNA), 42 Pa.C.S. §§ 9799.10–
9799.41. According to the trial court,
On April 8, 2015, the Office of the District
Attorney received the evaluation conducted by
the SOAB[, which] determined that Appellant
did not meet the criteria of a [sexually violent
predator (SVP)]. With this recommendation, the
District Attorney’s Office notified the [c]ourt on
April 8, 2015, that it would not be filing a
praecipe for an SVP hearing. Accordingly, the
case was scheduled for sentencing.
Trial Court Opinion, 8/3/2015, at 3 (citation omitted).
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On May 13, 2015, Appellant filed post-sentence motions, which
the trial court denied on June 2, 2015. Appellant then filed timely
a notice of appeal to this Court.
Commonwealth v. Hagens, 1156 MDA 2015, at *1 (Pa. Super. May 13,
2016) (unpublished memorandum). This Court affirmed Appellant’s judgment
of sentence, and on November 1, 2016, the Supreme Court of Pennsylvania
denied Appellant’s petition for allowance of appeal. See Commonwealth v.
Hagens, 160 A.3d 779 (Pa. 2016) (Table). Appellant did not file a writ of
certiorari with the United States Supreme Court.
On October 31, 2017, Appellant filed the instant pro se timely PCRA
petition. The PCRA court appointed counsel on November 6, 2017. After
reviewing the record, PCRA counsel filed a Turner/Finley1 no-merit letter
and petition to withdraw as counsel, concluding that the PCRA petition did not
present any issues of arguable merit and was frivolous. On August 7, 2018,
the PCRA court issued notice of its intent to dismiss Appellant’s petition
pursuant to Pennsylvania Rule of Criminal Procedure 907. After seeking an
extension of time to file an amended petition, which the PCRA court granted,
Appellant pro se filed an amended petition on October 24, 2018. In his
amended petition, Appellant raised an additional claim in which he asserted
that PCRA was ineffective.
____________________________________________
1 See Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988) and
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
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On December 13, 2018, the PCRA court dismissed Appellant’s petition
without a hearing and granted PCRA counsel’s petition to withdraw. On
January 14, 2019, Appellant filed a single notice of appeal listing both trial
court docket numbers.2 Because Appellant did not file separate notices of
appeal and because the order dismissing his petition affected claims arising at
multiple trial court dockets, our authority to exercise jurisdiction is governed
by our Supreme Court’s decision in Commonwealth v. Walker, 185 A.3d
969 (Pa. 2018).3 Accordingly, before we consider Appellant’s claims, we must
first determine whether this appeal is properly before us.4
As this Court previously explained:
Pennsylvania Rule of Appellate Procedure 341(a) directs that “an
appeal may be taken as of right from any final order of a
government unit or trial court.” Pa.R.A.P. 341(a). “The Official
Note to Rule 341 was amended in 2013 to provide clarification
regarding proper compliance with Rule 341(a) . . . .” [Walker,
185 A.3d at 976]. The Official Note now reads:
____________________________________________
2The PCRA court did not order Appellant to file a Pa.R.A.P. 1925(b) statement,
and none was filed. In lieu of a Pa.R.A.P. 1925(a) opinion, the PCRA court
directs us to its opinion filed on December 13, 2018. PCRA Court Order,
1/22/19.
3 On February 15, 2019, this Court issued a rule to show cause directing
Appellant to address whether his notice of appeal listing both trial court docket
numbers violated Walker. Appellant filed a response on February 27, 2019.
This Court discharged the rule to show cause and referred the issue to this
panel.
4 On April 6, 2020, this Court dismissed Appellant’s appeal due to his failure
to file a brief. On May 4, 2020, Appellant filed an application to reinstate his
appeal, explaining that his failure to file a brief was due to the coronavirus
pandemic. This Court granted his request on May 8, 2020.
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Where . . . one or more orders resolves issues arising
on more than one docket or relating to more than one
judgment, separate notices of appeals must be filed.
Commonwealth v. C.M.K., 932 A.2d 111, 113 & n.3
(Pa. Super. 2007) (quashing appeal taken by single
notice of appeal from order on remand for
consideration under Pa.R.Crim.P. 607 of two persons’
judgments of sentence).
Pa.R.A.P. 341, Official Note.
In Walker, our Supreme Court construed the above-language as
constituting “a bright-line mandatory instruction to practitioners
to file separate notices of appeal.” Walker, 185 A.3d at 976-77.
Therefore, the Walker Court held that “the proper practice under
Rule 341(a) is to file separate appeals from an order that resolves
issues arising on more than one docket. The failure to do so
requires the appellate court to quash the appeal.” Id. at 977.
However, the Court tempered its holding by making it prospective
only, recognizing that “[t]he amendment to the Official Note to
Rule 341 was contrary to decades of case law from this Court and
the intermediate appellate courts that, while disapproving of the
practice of failing to file multiple appeals, seldom quashed appeals
as a result.” Id. Accordingly, the Walker Court directed that “in
future cases Rule 341 will, in accordance with its Official Note,
require that when a single order resolves issues arising on more
than one lower court docket, separate notices of appeal must be
filed. The failure to do so will result in quashal of the appeal.” Id.
Commonwealth v. Williams, 206 A.3d 573, 575-76 (Pa. Super. 2019)
(emphasis omitted). Because Appellant filed his notice of appeal on January
14, 2019, the rule announced in Walker governs. As stated above, Appellant
filed a single notice of appeal listing two docket numbers, rather than two
separate notices of appeal at each trial court docket. As such, Appellant
violated our Supreme Court’s mandate in Walker and this appeal is subject
to quashal.
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However, in Commonwealth v. Stansbury, 219 A.3d 157 (Pa. Super.
2019), this Court declined to quash an appeal listing two docket numbers
because the trial court misinformed the defendant that he could file a single
notice of appeal. We determined that the trial court’s failure to properly advise
the defendant of his appellate rights amounted to a “breakdown in the court
system,” and therefore excused his failure to comply with Walker.
Stansbury, 219 A.3d at 160. The holding was recently affirmed by an en
banc panel of this Court. See Commonwealth v. Larkin, 235 A.3d 350, 354
(Pa. Super. 2020) (en banc) (concluding trial court’s order informing Larkin
he had “[30] days from the date of [the] order to file an appeal” was
breakdown in the court system and excused non-compliance with Walker)
(emphasis in original). Thus, based upon both Stansbury and Larkin, “we
may overlook the requirements of Walker where [] a breakdown occurs in
the court system, and a defendant is misinformed or misled regarding his
appellate rights.”
Here, our review of the record reveals a scenario which potentially
misled Appellant about the requirement to file separate notices of appeal. The
PCRA court’s order states Appellant “has the right to appeal from this Order.
[Appellant] shall have 30 days from the date of this final Order to appeal to
the Superior Court of Pennsylvania. Failure to appeal within 30 days will result
in the loss of appellate rights.” PCRA Court Order, 12/13/18. Notably, the
court did not advise Appellant of the requirement to file separate notices of
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appeal at each docket number as required by Walker. See Stansbury, 219
A.3d at 160. In light of the PCRA court’s failure to articulate the requirement,
we conclude that a breakdown occurred. Accordingly, we decline to quash
this appeal.
We next consider whether the PCRA court correctly denied Appellant’s
petition without a hearing. Our standard of review is well-settled:
This Court analyzes PCRA appeals in the light most favorable to
the prevailing party at the PCRA level. Our review is limited to
the findings of the PCRA court and the evidence of record and we
do not disturb a PCRA court’s ruling if it is supported by evidence
of record and is free of legal error. Similarly, we grant great
deference to the factual findings of the PCRA court and will not
disturb those findings unless they have no support in the record.
However, we afford no such deference to its legal conclusions.
Where the petitioner raises questions of law, our standard of
review is de novo and our scope of review is plenary. Finally, we
may affirm a PCRA court’s decision on any grounds if the record
supports it.
Commonwealth v. Benner, 147 A.3d 915, 919 (Pa. Super. 2016) (quoting
Commonwealth v. Perry, 128 A.3d 1285, 1289 (Pa. Super. 2015)).
On appeal, Appellant raises the following issues for our review:
INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL IN VIOLATION OF
[APPELLANT’S] RIGHTS TO EFFECTIVE ASSISTANCE OF COUNSEL
AS GUARANTEED BY THE 6TH AND 14TH AMENDMENTS OF THE
UNITED STATES CONSTITUTION AND THE CORRESPONDING
PROVISIONS OF THE PENNSYLVANIA CONSTITUTION, ARTICLE 1,
§ 9, TRIAL COUNSEL FAILED TO OBTAIN A FORENSIC
PSYCHOLOGIST, GYNECOLOGIST, AND/OR PEDIATRIC
GYNECOLOGIST.
INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL IN FAILURE TO
CONDUCT A REASONABLE PRE-TRIAL INVESTIGATION. THIS
VIOLATED [APPELLANT’S] RIGHT TO COUNSEL, AS GUARANTEED
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BY THE 6TH AND 14TH AMENDMENTS OF THE U.S. CONSTITUTION
AND ARTICLE 1, § 9 OF THE PENNSYLVANIA CONSTITUTION.
APPELLATE COUNSEL WAS INEFFECTIVE FOR FAILING TO RAISE
TRIAL COUNSEL’S INEFFECTIVENESS ON DIRECT APPEAL IN NOT
SECURING A MERITORIOUS CLAIM DURING VIRE [sic] DIRE
PROCESS.
APPELLATE COUNSEL WAS INEFFECTIVE FOR FAILING TO RAISE
TRIAL COUNSEL’S INEFFECTIVENSS ON DIRECT APPEAL IN NOT
RAISING A MERITORIOUS CLAIM UNDER AN ILLEGAL SENTENCE
“A VIOLATION OF THE CONSTITUTION OF PENNSYLVANIA OR
LAWS OF THIS COMMONWEALTH OR THE CONSTITUTION OF THE
UNITED STATES.”
APPELLATE COUNSEL WAS INEFFECTIVE FOR FAILING TO RAISE
TRIAL COUNSEL’S INEFFECTIVENESS ON DIRECT APPEAL[. TRIAL
COUNSEL FAILED TO OBJECT TO ALLEGED HEARSAY
STATEMENTS MADE DURING APPELLANT’S PRELIMINARY
HEARING.]
APPELLATE COUNSEL WAS INEFFECTIVE FOR FAILING TO RAISE
TRIAL COUNSEL’S INEFFECTIVENESS ON DIRECT APPEAL[. THE
TRIAL COURT ERRED IN THREATENING APPELLANT TO ACCEPT A
PLEA OFFER.]
INITIAL POST-CONVICTION COUNSEL HEATHER L. ADAMS, ESQ.,
FAILED TO ADEQUATELY REVIEW THE ENTIRE RECORD AND
RAISE MERITORIOUS INEFFECTIVE ASSISTANCE OF TRIAL
COUNSEL AND APPELLATE COUNSEL [sic] CLAIMS VIOLATING
[APPELLANT]’S STATE AND FEDERAL DUE PROCESS RIGHTS.
Appellant’s Brief at 1-2.
All of these issues challenge the effectiveness of counsel. In deciding
ineffective assistance of counsel claims, we begin with the presumption that
counsel rendered effective assistance. Commonwealth v. Bomar, 104 A.3d
1179, 1188 (Pa. 2014). To overcome that presumption, the petitioner must
establish: “(1) the underlying claim has arguable merit; (2) no reasonable
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basis existed for counsel’s action or failure to act; and (3) the petitioner
suffered prejudice as a result of counsel’s error, with prejudice measured by
whether there is a reasonable probability that the result of the proceeding
would have been different.” Id. (citation omitted). To demonstrate prejudice,
“the petitioner must show that there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been
different.” Commonwealth v. King, 57 A.3d 607, 613 (Pa. 2012). A PCRA
petitioner must address each of these prongs on appeal. See
Commonwealth v. Natividad, 938 A.2d 310, 322 (Pa. 2007) (explaining
“appellants continue to bear the burden of pleading and proving each of the
Pierce elements on appeal to this Court”). A petitioner’s failure to satisfy any
prong of this test is fatal to the claim. Commonwealth v. Wholaver, 177
A.3d 136, 144 (Pa. 2018).
In his first issue, Appellant asserts trial counsel was ineffective for failing
to hire an expert in psychology, gynecology and/or pediatric gynecology to
testify at trial. Appellant sought the testimony of an expert witness to
challenge the victims’ credibility, and: 1) “explain to the jury the alleged
victim(s) up bringing and state of mind”; 2) testify at sentencing and on
appeal for mitigation purposes; and 3) refute the Commonwealth’s expert
witness. Appellant’s Brief at 4-5. Appellant acknowledges, however, “even
though some of the information that may be discovered may be inadmissible,
there is always the possibility that crucial information may be found which
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would have destroyed the alleged victim(s) credibility when she testifies.” Id.
at 4.
“Where a claim is made of counsel’s ineffectiveness for failing to call
witnesses, it is the appellant’s burden to show that the witness existed and
was available; counsel was aware of, or had a duty to know of the witness;
the witness was willing and able to appear; and the proposed testimony was
necessary in order to avoid prejudice to the appellant.” Commonwealth v.
Wayne, 720 A.2d 456, 470 (Pa. 1998). “The mere failure to obtain an expert
rebuttal witness is not ineffectiveness. Appellant must demonstrate that an
expert witness was available who would have offered testimony designed to
advance appellant’s cause.” Id. at 470–71. “Trial counsel need not introduce
expert testimony on his client’s behalf if he is able effectively to cross-examine
prosecution witnesses and elicit helpful testimony. Additionally, trial counsel
will not be deemed ineffective for failing to call a medical, forensic, or scientific
expert merely to critically evaluate expert testimony [that] was presented by
the prosecution. Thus, the question becomes whether or not [defense
counsel] effectively cross-examined [the Commonwealth’s expert witness].”
Commonwealth v. Marinelli, 810 A.2d 1257, 1269 (Pa. 2002).
Here, Appellant has not identified an expert witness who could have
testified on his behalf or indicated how that expert’s testimony would have
been helpful to his case. Further, Appellant admits the evidence he seeks to
obtain from an expert witness may not be admissible at trial. Without
identifying an expert witness who was available to testify, and because the
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evidence Appellant seeks to introduce would likely have been inadmissible,
the PCRA court correctly determined that Appellant’s claim of ineffective
assistance of counsel regarding trial counsel’s failure to present an expert
witness is without merit.
In his second issue, Appellant argues trial counsel was ineffective for
failing to subpoena potential character witnesses “who would have refuted the
testimony of the alleged victim(s) and the Commonwealth’s witnesses.”
Appellant’s Brief at 7. Appellant claims:
[C]ounsel made no attempt to interview any potential witnesses
for the [Appellant] as he relied solely on trial counsel to utilize
such avenues but instead never contacted the [Appellant] for such
information when he was on bail. Clearly, failing to conduct pre-
trial investigation or interviewing witnesses was ineffective
assistance of counsel.
Id.Evidence of a defendant’s character in a sexual assault case is “limited
to presentation of testimony concerning his general reputation in the
community with regard to such traits as non-violence or peaceableness,
quietness, good moral character, chastity, and disposition to observe good
order.” Commonwealth v. Radecki, 180 A.3d 441, 454 (Pa. Super. 2018);
see also PCRA Court Opinion, 12/13/18, at 14.
The PCRA court explained:
[Appellant] included in his PCRA petition the affidavits of 11
friends and family members whom he claims could have been
character witnesses at trial. The proffered testimony includes
such statements as “works hard,” “loves the Lord,” “very
talented,” “was engaging with his children,” “always there with a
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helping hand,” “kind, caring father,” “has been around my children
from day one,” “very trust worthy,” “a man of integrity when
dealing with children,” and “a good example to me.”
Unfortunately, this proffered character testimony would have
been inadmissible as it does not relate to general reputation in the
community with regard to such traits as non-violence,
peaceableness, good moral character, chastity, and disposition to
observe good order. These family members and friends are
offering evidence of specific acts or their own personal opinions of
[Appellant] rather than the community’s opinion of [Appellant].
See [Commonwealth v.] Johnson, [27 A.3d 244, 248 (Pa.
Super. 2011)] (holding counsel was not ineffective for failing to
call character witnesses where the proposed testimony by the
defendant’s siblings, nieces, nephew, and best friend was not
proper character evidence of defendant’s reputation for chastity
in the community, as necessary for admission in prosecution for
sexual offenses involving neighbors’ five-year-old daughter,
where proposed witnesses opined that defendant always acted
appropriately around children in his family); Commonwealth v.
Van Horn, 797 A.2d 983, 987-88 (Pa. Super. 2002) (holding
counsel was not ineffective for failing to call character witnesses
where “the relatives’ own experience with [the defendant] and
their perceived relationship between [the defendant] and the
victim is not testimony regarding [the defendant’s] general
reputation in the community”).
PCRA Court Opinion, 12/13/18, at 14-15.
The PCRA court found Appellant failed to establish that the testimony of
any of his proposed witnesses would have met the Radecki criteria. Id.Accordingly, counsel was not ineffective for failing to subpoena these proposed
witnesses, and the PCRA court did not err in rejecting this ineffective
assistance of counsel claim.
We address Appellant’s third, fourth, fifth and sixth issues as one
overarching claim of appellate counsel’s ineffectiveness, based on appellate
counsel’s failure to raise trial counsel’s ineffectiveness on direct appeal. Our
Supreme Court has made clear that ineffectiveness claims are not to be raised
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in the first instance on direct appeal but must await collateral review.
Commonwealth v. Grant, 813 A.2d 726 (Pa. 2002). An exception to this
rule exists where the trial court has held a hearing on a claim of trial counsel’s
ineffectiveness and the record has been fully developed on the issue.
Commonwealth v. Bomar, 826 A.2d 831 (Pa. 2003). Here, Appellant did
not raise trial counsel’s ineffectiveness at the trial level; he raised trial
counsel’s alleged ineffectiveness for the first time in his PCRA petition.
Therefore, appellate counsel could not have raised the issue on direct appeal,
and cannot be ineffective for failing to do so. Accordingly, Appellant’s third,
fourth, fifth, and sixth issues lack merit.5
In his seventh and final issue, Appellant argues that PCRA counsel was
ineffective for failing to raise various allegations of ineffective assistance of
counsel on the part of both trial counsel and direct appeal counsel.
Specifically, Appellant alleges that instead of filing a Turner/Finley no-merit
letter, PCRA counsel should have argued trial counsel was ineffective for failing
to: 1) hire a private investigator to “locate and investigate the alleged
victim(s) . . . biological father . . . who was a main suspect of sexually
assaulting his daughters”; 2) obtain a forensic gynecologist and/or pediatric
gynecologist to combat the testimony of the Commonwealth’s expert
gynecologist who testified at trial; 3) obtain affidavits from trial counsel
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5 Even if these claims were properly framed as ineffective assistance of trial
counsel, we would conclude they are meritless for the reasons discussed by
the PCRA court. See PCRA Court Opinion, 12/13/18, at 16-20.
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stating that counsel failed to inform Appellant of his right to testify on his own
behalf at trial; 4) interview trial counsel to discern why counsel failed to
present character witnesses at trial; 5) interview trial counsel “as to his
ineffectiveness of allowing one of the alleged victims to mischievously smile
while testifying in regards to being allegedly sexually assault . . .”; 6) interview
appellate counsel and determine whether a reasonable basis existed for not
informing Appellant of his right to file a writ of certiorari with the United States
Supreme Court after the Supreme Court of Pennsylvania denied his petition
for allowance of appeal; 7) challenge the alleged discrepancies in the victim’s
allegations against Appellant; 8) investigate Appellant’s “principle overview”
filed in his pro se PCRA petition and file an amended PCRA petition on
Appellant’s behalf; 9) review pre-trial discovery; and 10) request discovery
from the Commonwealth. Appellant’s Brief at 19-21.
Our Supreme Court has set forth the proper framework for alleging a
layered ineffective assistance of counsel claim in the context of the PCRA:
Succinctly stated, a petitioner must plead in his PCRA petition that
his prior counsel, whose alleged ineffectiveness is at issue, was
ineffective for failing to raise the claim that the counsel who
preceded him was ineffective in taking or omitting some action.
In addition, a petitioner must present argument, in briefs or other
court memoranda, on the three prongs of the [ineffectiveness]
test as to each relevant layer of representation . . . . [T]his means
that the arguable merit prong of the [ineffectiveness] test as to
the claim that appellate counsel was ineffective in not raising trial
counsel’s ineffectiveness consists of the application of the three-
prong [ineffectiveness] test to the underlying claim of trial
counsel’s ineffectiveness. If any one of the prongs as to trial
counsel’s ineffectiveness is not established, then necessarily the
claim of appellate counsel’s ineffectiveness fails. Only if all three
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prongs as to the claim of trial counsel’s ineffectiveness are
established, do prongs 2 and 3 of the [ineffectiveness] test as to
the claim of appellate counsel’s ineffectiveness have relevance,
requiring a determination as to whether appellate counsel had a
reasonable basis for his course of conduct in failing to raise a
meritorious claim of trial counsel’s ineffectiveness (prong 2) and
whether petitioner was prejudiced by appellate counsel’s course
of conduct in not raising the meritorious claim of trial counsel’s
ineffectiveness (prong 3).
Commonwealth v. Reid, 99 A.3d 470, 482 (Pa. 2014) (quoting
Commonwealth v. McGill, 832 A.2d 1014, 1023 (Pa. 2003)).
Contrary to settled law, Appellant has failed to “present argument . . .
in his brief[] . . . on the three prongs” of the ineffectiveness test as to each
level of representation. See id. A determination that trial counsel rendered
ineffective assistance is a prerequisite to a finding that subsequent counsel
was ineffective; there were no such findings in this case. Thus, this issue
lacks merit.
Based on the foregoing, we discern no error in the PCRA court’s
dismissal of Appellant’s petition asserting ineffectiveness of trial, appellate,
and PCRA counsel. We therefore affirm the December 13, 2018 order.
Order affirmed.
Judge Lazarus joins the memorandum.
Judge Kunselman concurs in the result.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 04/07/2021
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