Com. v. Marquez, E.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
EDWIN MARQUEZ :
:
Appellant : No. 3568 EDA 2019
Appeal from the PCRA Order Entered December 3, 2019
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0904661-2005
BEFORE: NICHOLS, J., McCAFFERY, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY NICHOLS, J.: Filed: October 1, 2020
Appellant Edwin Marquez1 appeals from the order dismissing his timely
first petition under the Post Conviction Relief Act (PCRA). 2 On appeal,
Appellant claims that trial counsel was ineffective for failing to challenge the
weight of the evidence issue after his trial and in his direct appeal. We affirm.
The PCRA court set forth the relevant facts of this appeal as follows:
On May 22, 2005, Appellant and his brother, Carlos Jiminez
[(Codefendant)], arrived home after going to a nearby store and
found three men inside their shared residence. A struggle ensued
during which one of the three intruders had a handgun taken from
him by [Codefendant], who did not tell police about having taken
the firearm. The intruders then fled.
Two days later, Carlos Alicea [(the victim)] was at bus stop located
at 5th and Cambria Streets waiting for a bus with some family
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1 It appears that Appellant’s full name is Edwin Marquez Jimenez. See N.T.
Trial, 11/2/06, at 64.
2 42 Pa.C.S. §§ 9541-9456.
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members when Appellant walked by in the company of another
male. Appellant was talking on a cell phone and was overheard
saying, “He is here, he is in the store[,]” all the while imploring
the person to whom he was speaking to hurry up and get there.
Apparently, Appellant believed that [the victim] was one of the
men who had entered his home two days prior thereto.
When the phone call ended, Appellant followed [the victim] into a
store and grabbed and punched him after which he and [the
victim] began struggling. Eventually, both men made their way
outside where Appellant gained control of [the victim].
Immediately thereafter, [Codefendant], who had just driven to
the area, quickly ran up to [the victim] and Appellant. When he
reached them, [Codefendant] shot [the victim] in the chest from
close range with the gun confiscated from one of the intruders two
days earlier. When he was shot, [the victim] was firmly in
Appellant’s grasp and completely under his control.
After [Codefendant] shot [the victim], Appellant let [the victim]
go at which time [Codefendant] fired a second shot at [the victim],
who fell to the ground. [Codefendant] then walked over to [the
victim] and fired a third shot at him.[3] Both Appellant and
[Codefendant] fled the scene and eventually went to Florida where
they were arrested in June of 200[5].
[The victim] was taken to a nearby hospital where he was
pronounced dead shortly after arrival. An autopsy of his body
revealed that he died as a result of two gunshot wounds to his
torso that caused damage to his heart, lungs, and liver.
PCRA Ct. Op., 12/10/19, at 2-3.
On November 6, 2006, a jury found Appellant guilty of third-degree
murder and criminal conspiracy. On January 18, 2007, the trial court
sentenced Appellant to seventeen-and-a-half to thirty-five years’
imprisonment for murder and a concurrent term of ten to twenty years’
imprisonment for conspiracy. Trial counsel did not file a post-sentence motion
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3 At some point during the incident, Codefendant also apparently shot
Appellant through the wrist or hand. N.T. Trial, 11/2/06, at 91-92.
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on Appellant’s behalf or otherwise preserve a challenge to the weight of the
evidence, but filed a direct appeal to this Court challenging, in relevant part,
the sufficiency of the evidence.4
On August 31, 2009, an en banc panel of this Court rejected Appellant’s
sufficiency claims and affirmed the judgment of sentence.5 Commonwealth
v. Marquez, 980 A.2d 145 (Pa. Super. 2009) (en banc). On December 29,
2009, our Supreme Court denied Appellant’s petition for allowance of appeal.
Commonwealth v. Marquez, 987 A.2d 160 (Pa. 2009).
On August 17, 2011, Appellant filed his first PCRA petition pro se. See
Pro Se Pet. for PCRA Relief, 8/17/11. The PCRA court appointed David S.
Rudenstein, Esq., as counsel for Appellant. On October 23, 2017, Attorney
____________________________________________
4 Lee Mandell, Esq. (trial counsel) represented Appellant at trial and in the
direct appeal.
5 Specifically, in reviewing Appellant’s sufficiency claim, this Court concluded:
“From the Commonwealth’s evidence, the jury could infer that [Appellant]
acted with malice by seeking out the [victim], calling someone to let them
know that ‘he is here,’ and holding the [victim] in a headlock until after
[Codefendant] shot him.” Marquez, 980 A.2d at 149. This Court further
stated that “[t]he web of circumstantial evidence, taken as a whole, points to
the existence of a criminal conspiracy carried out by the two brothers.” Id.
at 150. Judge Klein and Judge Cleland filed separate concurring and
dissenting opinions. See id. at 151 (Klein, J. concurring and dissenting)
(stating that while “the record established that some type of conspiracy did
exist[,] . . . it [was] pure conjecture to conclude that [Appellant] and
[Codefendant] shared any intent other than to assault the victim”); id. at 154-
55 (Cleland, J. concurring and dissenting).
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Rudenstein filed a motion to withdraw and a Turner/Finley6 letter asserting
that Appellant’s petition was untimely filed and presented no issues of
arguable merit. On February 6, 2018, the PCRA court granted Attorney
Rudenstein’s motion to withdraw, but dismissed Appellant’s PCRA petition on
the merits.7
Appellant appealed the dismissal of his PCRA petition to this Court.
Upon review, this Court concluded that the PCRA court “should not have
permitted counsel to withdraw . . . .” Commonwealth v. Marquez, 790 EDA
2018, 2019 WL 1896548, *2 (Pa. Super. filed Apr. 29, 2019) (unpublished
mem.). Accordingly, this Court vacated the denial of Appellant’s PCRA
petition, remanded the matter to the PCRA court, and directed that new
counsel be appointed for Appellant. Id.____________________________________________
6Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth v.
Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
7 Appellant, in his initial pro se PCRA petition, acknowledged that he did not
file his petition within the one-year PCRA deadline. Pro Se Pet. for PCRA Relief
at 3-5. However, Appellant attached to his pro se petition his correspondence
with the trial court regarding his appeal. Additionally, Appellant attached a
letter from trial counsel stating that counsel forgot to inform Appellant of our
Supreme Court’s denial of his petition for allowance of appeal.
In its opinion, the PCRA court noted that “[a]lthough Appellant did not timely
file his PCRA petition, the record clearly shows that direct appeal counsel failed
to inform of him of the denial of his petition for allowance of appeal. Upon
being informed of his denial, he filed his pro se PCRA petition within sixty days
of learning of the denial thereby making the filing timely because he acted
with due diligence.” PCRA Ct. Op., 3/28/18, at 2 n.2 (citation omitted).
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On remand, the PCRA court appointed new PCRA counsel, and counsel
filed the instant amended petition on May 21, 2019. See Am. Pet. for PCRA
Relief, 5/21/19. This petition claimed that trial counsel was ineffective for
failing to challenge the weight of the evidence. Id. Specifically, Appellant
asserted that the trial evidence failed to establish an agreement between
Appellant and Codefendant to shoot the victim. Id. at 9.
The PCRA court found that Appellant’s amended petition lacked merit
and on October 16, 2019, issued a Pa.R.Crim.P. 907 notice of intent to dismiss
the petition without a hearing. See Notice Pursuant to Pa. Rule of Crim. P.
907, 10/16/19. Appellant did not respond.
On December 3, 2019, the PCRA court dismissed Appellant’s amended
petition without a hearing. That same day, Appellant filed a notice of appeal.
The PCRA court did not order the filing of a Pa.R.A.P. 1925(b) statement, but
issued a Rule 1925(a) opinion on December 10, 2019. See PCRA Ct. Op.,
12/10/19.
On appeal, Appellant raises one issue for our review:
Did the PCRA court err in dismissing Appellant’s PCRA [p]etition
without a hearing when trial / direct appeal counsel was ineffective
for failing to preserve a weight of the evidence issue as to all
convictions and Appellant suffered prejudice because there was
nothing tying Appellant to a conspiracy with [Codefendant] to
shoot [the victim]?
Appellant’s Brief at 4.
Appellant asserts that trial counsel’s failure to preserve a weight of the
evidence argument deprived the trial court of its gatekeeping role when
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considering whether he was entitled to a new trial. Id. at 16. Appellant
argues that “[i]t is beyond rational belief that Appellant would somehow
mentally agree with his Codefendant brother that Codefendant would shoot
[the victim] and Appellant. Appellant stood back and did not continue to
restrain [the victim] while Codefendant shot.” Id. at 15. Further, Appellant
notes that trial counsel challenged the sufficiency of the evidence in
Appellant’s direct appeal and that at least two judges of this Court believed
the evidence was insufficient.8 Id. at 5, 9, 15-16. According to Appellant,
had the weight claim been preserved, Appellant would have been “awarded a
new trial by the trial court or on appeal.” Id. at 16.
More specifically, Appellant contends that “[t]here was nothing on the
initial overheard telephone conversation wherein Appellant told [Codefendant]
to bring a gun.” Id. at 15. Moreover, Appellant argues that “[w]itnesses
testified [at trial] that when [Codefendant] arrived, Appellant stood back and
did not continue to restrain [the victim].” Id. at 14. Appellant emphasizes
that he “was also shot by [Codefendant] during the underlying incident.” Id.
at 15.
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8 Appellant references the concurring and dissenting opinions filed in this
Court’s prior en banc decision affirming the judgment of sentence. See
Appellant’s Brief at 5, 9. We note, however, that dissenting opinions are not
binding precedent. See Commonwealth v. Davis, 17 A.3d 390, 398 (Pa.
Super. 2011) (stating the general rule that a decision lacks precedential value
if it does not garner the support of a majority of the sitting judges); see also
Conrad v. Dept. of Transportation, Bureau of Driver Licensing, 226 A.3d
1045, 1056 (Pa. Cmwlth. 2020) (stating that “a dissenting opinion is not
binding precedent”).
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Appellant further observes that “[Codefendant] was convicted of a
specific intent crime, first-degree [m]urder, while Appellant was not.” Id.Appellant argues that “[a] jury may render inconsistent [v]erdicts but the trial
court should be able to address weight of the evidence issue i[f] a post-
sentence [m]otion is filed and this was not done by [trial] counsel.” Id.Appellant insists that he “suffered prejudice because the [r]ecord and
conviction are no[t] free from legal error in that Appellant's conviction is based
upon speculation only” and constitutes a “miscarriage of justice.” 9 Id. at 16-
17. Appellant concludes that “[t]here was a near presumption of guilt and no
one, including Appellant, could foresee the crazed shooting initiated by
[Codefendant].” Id. at 20. Ultimately, Appellant requests a remand for an
evidentiary hearing to determine trial counsel’s ineffectiveness for failing to
preserve and raise a weight of the evidence claim. Id. at 8. In the alternative,
Appellant asserts that he is entitled to a new trial or an order vacating his
judgment of sentence. Id.
The Commonwealth responds that the “evidence plainly demonstrated
that [Appellant] and [Codefendant] hunted the victim down in an act of
revenge, and that [Appellant] both called [Codefendant] to the scene and held
the victim in place for [Codefendant] to walk up to the victim and shoot him
from close range.” Commonwealth’s Brief at 10. The Commonwealth argues
____________________________________________
9 According to Appellant, “[i]f the shooting did not occur in a deprived part of
Philadelphia, no one would presume that an individual would show up given
the underlying facts and start shooting.” Appellant’s Brief at 16 (citations
omitted).
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that Appellant’s underlying weight of the evidence claim was meritless
because “[t]he jury was free to credit the Commonwealth’s evidence, which
was based on several eyewitnesses, that [Appellant] was a direct and active
participant in the murder.” Id. The Commonwealth asserts “[t]here simply
was no substantial countervailing evidence to his knowing and direct
participation in the murder” and concludes “[t]he jury’s verdict was well
supported by the evidence.” Id. at 18-19. Further, the Commonwealth notes
that there was no prejudice “as the PCRA court, which also had been the trial
court, found[] it would have denied the proffered motion.” Id. at 11.
The Commonwealth also asserts that there was no conflict between
Codefendant’s conviction for first-degree murder and Appellant’s conviction
for conspiracy and third-degree murder. Id. at 18. The Commonwealth
argues that Appellant “erroneously conflates the intent necessary to prove
conspiracy with the intent necessary to prove murder in the first degree.” Id.
at 17. Specifically, the Commonwealth states that “[c]onspiracy to commit
murder in the third degree is a cognizable crime. It does not require a specific
intent to kill.” Id. at 17-18 (citing Commonwealth v. Fisher, 80 A.3d 1186,
1195 (Pa. 2013) (stating that “one does not conspire to commit a
denominated offense, one conspires to engage in certain conduct”). The
Commonwealth relies on Fisher for the proposition that “the act sufficient for
third degree is still a purposeful one, committed with malice, which results in
death.” Id. at 18 (quoting Fisher, 80 A.3d at 1191). Further, the
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Commonwealth argues that “[e]ven if the jury verdicts were inconsistent”
there would be no “grounds to grant a new trial.” Id. at 19.
This Court’s standard of review for the dismissal of a PCRA petition “is
limited to examining whether the PCRA court’s determination is supported by
the evidence of the record and whether it is free of legal error.”
Commonwealth v. Ousley, 21 A.3d 1238, 1242 (Pa. Super. 2011) (citation
omitted). “The PCRA court’s findings will not be disturbed unless there is no
support for the findings in the certified record.” Commonwealth v. Lawson,
90 A.3d 1, 4 (Pa. Super. 2014) (citations omitted). This Court reviews “the
PCRA court’s legal conclusions de novo.” Commonwealth v. Miller, 102
A.3d 988, 992 (Pa. Super. 2014) (citation omitted).
We start with the presumption that a PCRA petitioner’s trial counsel was
effective. Commonwealth v. Williams, 732 A.2d 1167, 1177 (Pa. 1999).
To establish a claim of ineffective assistance of counsel, a PCRA petitioner
“must show, by a preponderance of the evidence, ineffective assistance of
counsel which, in the circumstances of the particular case, so undermined the
truth-determining process that no reliable adjudication of guilt or innocence
could have taken place.” Commonwealth v. Turetsky, 925 A.2d 876, 880
(Pa. Super. 2007) (citations omitted).
The PCRA petitioner carries the burden to prove all three of the following
elements: “(1) the underlying claim is of arguable merit; (2) that counsel had
no reasonable strategic basis for his or her action or inaction; and (3) but for
the errors and omissions of counsel, there is a reasonable probability that the
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outcome of the proceedings could have been different.” Id. (citations
omitted). “A claim of ineffectiveness may be denied by a showing that the
petitioner’s evidence fails to meet any of these prongs.” Commonwealth v.
Washington, 927 A.2d 586, 594 (Pa. 2007) (citations omitted).
“The threshold inquiry in ineffectiveness claims is whether the
issue/argument/tactic which counsel has foregone and which forms the basis
for the assertion of ineffectiveness is of arguable merit. Counsel cannot be
found ineffective for failing to pursue a baseless or meritless claim.”
Commonwealth v. Smith, 167 A.3d 782, 788 (Pa. Super. 2017) (citations
omitted and formatting altered), appeal denied, 179 A.3d 6 (Pa. 2018).
“[B]oilerplate allegations and bald assertions of no reasonable basis and/or
ensuing prejudice cannot satisfy a petitioner’s burden to prove that counsel
was ineffective.” Commonwealth v. Paddy, 15 A.3d 431, 443 (Pa. 2011).
It is well settled “[t]here is no absolute right to an evidentiary hearing
on a PCRA petition, and if the PCRA court can determine from the record that
no genuine issues of material fact exist, then a hearing is not necessary.”
Commonwealth v. Jones, 942 A.2d 903, 906 (Pa. Super. 2008) (citation
omitted).
To obtain reversal of a PCRA court’s decision to dismiss a petition
without a hearing, an appellant must show that he raised a
genuine issue of fact which, if resolved in his favor, would have
entitled him to relief, or that the court otherwise abused its
discretion in denying a hearing.
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Commonwealth v. Hanible, 30 A.3d 426, 452 (Pa. 2011) (citation omitted
and formatting altered).
This Court has stated that the following principles govern weight of the
evidence claims:
A claim alleging the verdict was against the weight of the evidence
is addressed to the discretion of the trial court. Accordingly, an
appellate court reviews the exercise of the trial court’s discretion;
it does not answer for itself whether the verdict was against the
weight of the evidence. It is well settled that the [fact-finder] is
free to believe all, part, or none of the evidence and to determine
the credibility of the witnesses, and a new trial based on a weight
of the evidence claim is only warranted where the [fact-finder’s]
verdict is so contrary to the evidence that it shocks one’s sense of
justice. In determining whether this standard has been met,
appellate review is limited to whether the trial judge’s discretion
was properly exercised, and relief will only be granted where the
facts and inferences of record disclose a palpable abuse of
discretion.
Commonwealth v. Landis, 89 A.3d 694, 699 (Pa. Super. 2014) (citation
omitted). Further, this Court has held that
[a] new trial should not be granted because of a mere conflict in
the testimony or because the judge on the same facts would have
arrived at a different conclusion. Rather, the role of the trial court
is to determine that notwithstanding all the evidence, certain facts
are so clearly of greater weight that to ignore them, or to give
them equal weight with all the facts, is to deny justice. A motion
for a new trial on the grounds that the verdict is contrary to the
weight of the evidence concedes that there is sufficient evidence
to sustain the verdict; thus the trial court is under no obligation
to view the evidence in the light most favorable to the verdict
winner.
Id. (citation omitted).
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A challenge to the weight of the evidence must be preserved in the trial
court. Pa.R.Crim.P. 607(A). However, the failure to file a post-sentence
motion alone does not give rise to a presumption of prejudice. See
Commonwealth v. Reaves, 923 A.2d 1119, 1131-32 (Pa. 2007). A
petitioner must establish a reasonable probability that filing a post-sentence
motion would have led to a different outcome. See id. at 1131.
Instantly, the PCRA court, which also presided over Appellant’s trial,
concluded that “[r]elief was properly denied with respect to this claim because
the evidence did not shock the conscience.” PCRA Ct. Op. at 6. The PCRA
court explained its decision as follows:
First, two witnesses testified that when his [Codefendant] arrived,
Appellant had the victim in a headlock and that when the fatal
shots were fired, Appellant still had hold of the victim.
[Codefendant] confirmed that when he shot the victim, Appellant
had the victim in his grasp. In fact, Appellant suffered a gunshot
wound to his arm during the incident thereby contradicting
Appellant’s claim that he had stepped away from the victim when
his brother approached and killed the victim.
In addition, because Appellant . . . called [Codefendant] imploring
him to get to that location as fast as he could, the jury could
reasonably find that Appellant and [Codefendant] shared the goal
of making the victim pay for the break-in. Although there was no
evidence that Appellant told his brother to bring a gun, the jury
could reasonably infer that Appellant knew that it was likely that
[Codefendant] would bring a gun with him. Even if that was not
the case, Appellant saw [Codefendant] arrive and approach the
victim while visibly possessing a gun. As noted above, Appellant
continued to restrain the victim as [Codefendant] approached with
the gun visible in his hand. By not letting the victim go, Appellant
manifested that he too had the intent to harm the victim. . . .
[T]he jury clearly understood that both crimes required different
mental states by convicting Appellant only of third degree murder
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because the record failed to establish that Appellant shared the
specific intent to kill the victim with [Codefendant].
Id. at 7-8.
Following our review, we agree with the PCRA court’s conclusion that
Appellant’s weight of the evidence claim would not have warranted a new trial.
We note that criminal conspiracy requires the Commonwealth to prove that
“the defendant (1) entered into an agreement to commit or aid in an unlawful
act with another person or persons, (2) with a shared criminal intent, and (3)
an overt act done in furtherance of the conspiracy.” Commonwealth v.
Brinker, 882 A.2d 1008, 1017 (Pa. Super. 2005) (citation omitted). The
conspiratorial agreement “can be inferred from a variety of circumstances
including, but not limited to, the relation between the parties, knowledge of
and participation in the crime, and the circumstances and conduct of the
parties surrounding the criminal episode.” Id. (citation omitted).
Moreover, “[w]here the existence of a conspiracy is established, the law
imposes upon a conspirator full responsibility for the natural and probable
consequences of acts committed by his fellow conspirator or conspirators if
such acts are done in pursuance of the common design or purpose of the
conspiracy.” Fisher, 80 A.3d at 1192 (citation omitted). As our Supreme
Court noted in Fisher, it is a conspiracy “to commit a bearing, which being
carried out with the mental state of malice, [that] supports a charge of third
degree murder.” Id. at 1195.
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Instantly, Appellant’s weight of the evidence claim relies on (1) the fact
that he did not expressly tell Codefendant to bring a gun, (2) conflicting
testimony about when Appellant released the victim around the time of the
shooting, and (3) the fact that Codefendant also shot Appellant through the
wrist. However, in addition to the evidence suggesting that Appellant called
Codefendant before attacking the victim, one of the eyewitnesses, Anthony
Fox, testified that while Appellant was restraining the victim in a “headlock”
or “full nelson,” Codefendant arrived at the scene with a semiautomatic pistol.
See N.T. Trial, 11/1/06, at 44-47. Specifically, Fox testified that Codefendant
was openly carrying a pistol, loaded the pistol by pulling back the slide,
approached to within arm’s length of the victim, and then fired the first shot
into the victim’s chest while standing in front of the victim. See id. According
to Fox, Appellant, who Fox described as taller and heavier than the victim,
was behind the victim and only released the victim after Codefendant fired the
first shot. Id. at 45-46.
Based on our review of the record, we agree with the PCRA court that
the jury was entitled to resolve the inconsistencies in the evidence highlighted
by Appellant. See Landis, 89 A.3d at 699. We also agree with the PCRA
court that the jury’s findings did not shock one’s sense of justice. See id. As
noted by the PCRA court, there was reasoned basis for the jury to conclude
that (1) Appellant and Codefendant initially entered into an agreement to
attack the victim, (2) Appellant acted with malice when he continued to
restrain the victim as Codefendant approached with the gun and shot the
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victim at close range, and (3) the victim’s death was a natural and probable
consequence of Appellant’s and Codefendant’s actions taken in pursuance of
their criminal agreement. See Fisher, 80 A.3d at 1192, 1195; Brinker, 882
A.2d at 1017. It was not the role of the trial court, or this Court in a direct
appeal, to grant a new trial merely because it would have arrived at a different
conclusion. See Landis, 89 A.3d at 699.
To the extent Appellant relies on Codefendant’s conviction for first-
degree murder as support for his weight claim, we find this argument to be
meritless. Specifically, the jury heard evidence that Codefendant possessed
the gun and shot the victim at least one time while Appellant was restraining
the victim. Codefendant ultimately fired multiple shots, and Fox testified that
Codefendant fired the final shot after the victim fell to the ground. See N.T.
Trial, 11/1/06, at 48. Based on this record, we find no inconsistency between
Codefendant’s conviction for first-degree murder and Appellant’s conviction
for third-degree murder as would support Appellant’s request for a new trial.
In sum, we find that the record supports the PCRA court’s conclusion
that Appellant’s proposed weight of the evidence claim would not have
resulted in a new trial.10 See Reaves, 923 A.2d at 1131-32; Ousley, 21 A.3d
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10We acknowledge that the PCRA court’s opinion refers to Appellant making
a phone call after accosting the victim inside the store. See PCRA Ct. Op.,
12/10/19, at 7. The record, however, established that Appellant made the
phone call before entering the store. See N.T. Trial, 10/31/06, at 106-07,
147; N.T. Trial, 11/1/06, at 15. Further, we do not agree with the PCRA
court’s suggestion that Appellant’s intent to harm the victim alone would have
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at 1242. Therefore, Appellant failed to establish prejudice resulting from his
claim that trial counsel was ineffective for preserving a weight of the evidence
claim. See Reaves, 923 A.2d at 1131-32; Turetsky, 925 A.2d at 880.
Lastly, Appellant has not shown a genuine issue of fact warranting an
evidentiary hearing. See Jones, 942 A.2d at 906. Accordingly, for the
foregoing reasons, we find no abuse of discretion or error of law in the PCRA
court’s decision to dismiss Appellant’s amended PCRA petition without a
hearing, we affirm. See Ousley, 21 A.3d at 1242; Jones, 942 A.2d at 906.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/1/20
____________________________________________
established his liability for third-degree murder. See Fisher, 80 A.3d at 1195.
However, for the reasons stated herein, the PCRA court’s statements
regarding the timing of Appellant’s phone call or his intent do not affect the
overall soundness of its conclusion that Appellant would not have been entitled
to a new trial based on his weight claim.
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