Com. v. Nicholson, J.

J-S12025-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee

v.

JOSEPH C. NICHOLSON,

Appellant No. 855 EDA 2015

Appeal from the PCRA Order of February 20, 2015
In the Court of Common Pleas of Chester County
Criminal Division at No(s): CP-15-CR-0000689-2010, CP-15-CR-0001301-
2010, CP-15-CR-0001302-2010.

BEFORE: MUNDY, OLSON AND STRASSBURGER,* JJ.

MEMORANDUM BY OLSON, J.: FILED FEBRUARY 18, 2016

Appellant, Joseph C. Nicholson, appeals pro se from the order entered

on February 20, 2015, dismissing his first petition filed pursuant to the Post

Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. We affirm.

We briefly set forth the facts and procedural history of this case as

follows. Appellant was a janitor working at Downingtown West High School

in Chester County, Pennsylvania. He was a well-known alumnus of the

school having played quarterback for the football team. Between September

2008 and January 2010, Appellant engaged in various acts of sexual

misconduct with three minor female students, R.E., L.C., and D.H. 1 Some of

these acts occurred at Appellant’s home, while other acts occurred at the
____________________________________________

1
We use their initials to protect the victims’ identities.

*Retired Senior Judge assigned to the Superior Court.
J-S12025-16

school as captured on surveillance video. Appellant also showed each of the

three victims a photo of his penis. Following a two-day jury trial

commencing on March 1, 2011, a jury convicted Appellant of four counts of

corruption of minors, two counts of indecent assault, and one count each of

statutory sexual assault, involuntary deviate sexual intercourse (IDSI), and

aggravated indecent assault.2 On July 22, 2011, the trial court sentenced

Appellant to an aggregate term of 13 to 26 years of imprisonment. On

October 12, 2012, this Court affirmed Appellant’s judgment of sentence.

See Commonwealth v. Nicholson, 62 A.3d 454 (Pa. Super. 2012)

(unpublished memorandum). Appellant did not file a petition for allowance

of appeal with the Pennsylvania Supreme Court.

On November 4, 2013, Appellant filed a timely3 pro se PCRA petition.

On November 15, 2013, the PCRA court appointed counsel to represent
____________________________________________

2
18 Pa.C.S.A. §§ 6301(a)(1), 3126(a)(8), 3122.1, 3123(a)(7), and
3125(a)(8), respectively.
3
PCRA petitions must be filed within one year of the date the judgment
becomes final. See 42 Pa.C.S.A. § 9545(b)(1). “[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.” 42 Pa.C.S.A.
§ 9545(b)(5). Although Appellant did not seek review with our Supreme
Court, judgment did not become final until the 30-day period to appeal to
the Supreme Court expired. See Pa.R.A.P. 1113(a) (petition for allowance
of appeal to Supreme Court shall be filed within 30 days of order issued by
Superior Court). Thus, Appellant’s judgment of sentence became final on
Monday, November 12, 2012. See 1 Pa.C.S.A. § 1908 (computation of
time). Thus, Appellant’s pro se PCRA petition, filed on November 4, 2013,
was within the PCRA’s one-year requirement.

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Appellant. On December 26, 2013, appointed counsel filed a petition to

withdraw and a “no-merit” letter pursuant to Commonwealth v Turner,

544 A.2d 927 (Pa. 1988) and Commonwealth v. Finley, 550 A.2d 213 (Pa.

Super. 1988) (en banc). Appellant filed a pro se request for an extension of

time to file an amended PCRA petition. The PCRA court granted the request;

however, Appellant did not file an amended PCRA petition. Instead,

Appellant’s family retained an attorney who entered his appearance on

January 31, 2014. At that time, retained counsel requested time to review

the record, which the PCRA court granted. On May 2, 2014, retained

counsel filed a petition to withdraw and a “no-merit” letter pursuant to

Turner/Finley.4

On May 7, 2014, the PCRA court entered notice of its intent to dismiss

Appellant’s PCRA petition without an evidentiary hearing pursuant to

Pa.R.Crim.P. 907. Appellant filed a pro se response after the 20-day

response period. See Pa.R.Crim.P. 907(1) (“The defendant may respond to

the proposed dismissal within 20 days of the date of the notice.”). In that

response, Appellant largely reiterated the claims he set forth in his pro se

PCRA petition and alleged retained counsel erroneously withdrew from

representation. For the first time, in his untimely Rule 907 response,
____________________________________________

4
Although the exact dates are not made entirely clear by the record, the
PCRA court first allowed appointed counsel to withdraw and later permitted
retained counsel to withdraw.

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Appellant claimed prejudice because of the racial composition of his jury. On

February 20, 2015, the PCRA court entered an order dismissing Appellant’s

PCRA petition. This timely appeal followed.5

Appellant presents the following issues, pro se, for our review:

1. The court erred in dismissing Appellant’s first, timely
filed, pro se PCRA petition without an evidentiary
hearing or the granting of [a] prayer for relief.

2. The court erred in granting PCRA counsel leave to
withdraw pursuant to [a] Finley no-merit letter, where
meritorious issues existed and where counsel failed to
amend the PCRA petition.

3. PCRA counsel was ineffective for abdicating his duty to
amend Appellant’s first, timely filed pro se PCRA
petition; for failing to address each and every issue
raised in the pro se petition in counsel’s no-merit letter;
and where the court erred in granting leave to withdraw
based upon that defective letter.

4. Appellant is entitled to PCRA relief pursuant [to] the
utilization of self-incriminating evidence, illegally
obtained through wire-taps, searches, coerced
confession, and other police misconduct, in violation of
the United States and Commonwealth Constitutions.
____________________________________________

5
Appellant placed his notice of appeal in the prison mailbox on March 18,
2015. A pro se prisoner's appeal shall be considered filed when notice of the
appeal is deposited with prison officials or placed in the prison mailbox. See
Commonwealth v. Feliciano, 69 A.3d 1270 (Pa. Super. 2013) (pursuant to
prisoner mailbox rule, notice of appeal in PCRA case was timely). Thus,
Appellant filed his notice of appeal within the 30-day appeal period. See
Pa.R.A.P. 903. On April 7, 2015, the PCRA court ordered Appellant to file a
concise statement of errors complained of on appeal pursuant to Pa.R.A.P.
1925(b). Appellant placed his Rule 1925(b) statement in the prison mailbox
in a timely manner. The PCRA court issued an opinion pursuant to Pa.R.A.P.
1925(a) on May 15, 2015.

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5. Appellant is entitled to PCRA relief pursuant to the
utilization of self-incriminating evidence [that was]
illegally obtained in violation of the poisonous tree
doctrine during the Loudermill hearing.6

6. Appellant is entitled to PCRA relief [for] ineffective and
layered ineffective assistance of counsel rendered
during pre-trial, trial, post-trial, and PCRA legal
proceedings.

7. The sentences imposed by the court were excessive,
illegal, and an abuse of judicial discretion, in violation of
Appellant’s federal and state rights to due process.

8. The voir-dire process and jury pool were racially biased
and defective, depriving Appellant of his right[] to a fair
trial by an impartial jury of his peers.

9. The evidence is insufficient and the verdict contra[r]y to
the weight of the evidence to [ob]tain [a] conviction for
involuntary deviate sexual intercourse (IDSI).

10. The court erred in declaring that Appellant’s issues were
waived where waiver was the direct result of
inef[f]ective and layered inef[f]ective assistance of
counsel.

Appellant’s Brief at 11 (complete capitalization, unnecessary punctuation,

and quotations omitted) (italics and bold text supplied).

Upon review of Appellant’s brief and the certified record, we conclude

that Appellant waived several of the issues listed above as they were

previously litigated or could have been raised on appeal. Appellant also
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6
“A Loudermill hearing is a pre-termination hearing given to a public
employee that is required by due process, as established in Cleveland
Board of Education v. Loudermill, 470 U.S. 532 (1985).” Ray v.
Brookville Area Sch. Dist., 19 A.3d 29, 31 n.2 (Pa. Cmwlth. 2011).

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waived several issues for failing to preserve them properly. Two of

Appellant’s issues lack merit. Thus, there is no merit to Appellant’s first,

sixth, or tenth claims. Our rationale follows.

Our Supreme Court has set forth our well-settled standard of review as

follows:

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. To be entitled to PCRA relief,
appellant must establish, by a preponderance of the
evidence, his conviction or sentence resulted from one or
more of the enumerated errors in 42 Pa.C.S. § 9543(a)(2),
his claims have not been previously litigated or waived, and
the failure to litigate the issue prior to or during trial, or on
direct appeal could not have been the result of any rational,
strategic or tactical decision by counsel. An issue is
previously litigated if the highest appellate court in which
appellant could have had review as a matter of right has
ruled on the merits of the issue. An issue is waived if
appellant could have raised it but failed to do so before trial,
at trial, on appeal or in a prior state post-conviction
proceeding.

Counsel is presumed effective, and appellant bears the
burden of proving otherwise. To prevail on an
ineffectiveness claim, appellant must establish:

(1) the underlying claim has arguable merit; (2) no
reasonable basis existed for counsel's actions or
failure to act; and (3) appellant suffered prejudice as
a result of counsel's error such that there is a
reasonable probability that the result of the
proceeding would have been different absent such
error.

Failure to prove any prong of this test will defeat an
ineffectiveness claim. If a claim fails under any necessary
element of the [aforementioned three-pronged] test, the
court may proceed to that element first. When an appellant

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fails to meaningfully discuss each of the three
ineffectiveness prongs, he is not entitled to relief, and we
are constrained to find such claims waived for lack of
development. Further, counsel cannot be deemed
ineffective for failing to raise a meritless claim.

Commonwealth v. Fears, 86 A.3d 795, 803-804 (Pa. 2014) (quotations,

footnotes, original brackets, ellipses, and most internal citations omitted).

In issues two and three, Appellant claims the PCRA court erred in

granting both PCRA attorneys leave to withdraw because meritorious issues

existed, counsel failed to amend the PCRA petition, and, instead, counsel

filed Turner/Finley no-merit letters. Appellant’s Brief at 2-6. Our Supreme

Court has held that a defendant waives any objection to PCRA counsel’s

representation by not responding to a Turner/Finley letter or during the

20-day response period under Pa.R.Crim.P. 907. See Commonwealth v.

Pitts, 981 A.2d 875, 879 n.2 and 3 (Pa. 2009) (“failure to challenge PCRA

counsel’s withdrawal upon his receipt of counsel’s no-merit letter” or “during

Rule 907’s 20-day response period” results in waiver.). Upon review of the

certified record, Appellant did not file a response to either appointed or

retained counsel’s no-merit letters. Moreover, Appellant did not file a Rule

907 response within the 20-day response period and, thus, it was untimely.

More specifically, upon review of the record, the PCRA court filed its Rule

907 notice on May 7, 2014; Appellant signed a certificate of service,

attached to his response to the PCRA court’s Rule 907 notice, indicating that

he placed the response in the prison mailbox on July 4, 2014. Fifty-eight

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days transpired which is clearly outside of the 20-day period under Rule 907.

Thus, Appellant waived his second and third issues as presented.7

In his fourth issue presented, Appellant contends that police illegally

wiretapped a conversation between victim R.E.’s mother and Appellant.

While Appellant concedes that the information obtained from the wiretap

was not “directly use[d] … during the [police] interrogation or at trial,” he

contends that “Officer Trautmann used [the wiretapped conversation] like a

weapon to force R.E. to cooperate, knowing that without her testimony he

had no case.” Id. at 9. More specifically, Appellant maintains that “[j]ust

because Officer Trautmann did not mention the wiretap [] does not mean

that he did not indirectly use the wealth of sel[f]-incriminating information

obtained in [that] event[] to his advantage.” Id. at 12. As such, Appellant

claims police “manipulated the evidence, indirectly using evidence unlawfully

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7
Regardless, upon review, both attorneys followed the proper procedure for
withdrawing under Turner/Finley:

Counsel petitioning to withdraw from PCRA representation
must proceed under [Turner/Finley] and must review the
case zealously. Turner/Finley counsel must then submit a
“no-merit” letter to the trial court, or brief on appeal to this
Court, detailing the nature and extent of counsel's diligent
review of the case, listing the issues which petitioner wants
to have reviewed, explaining why and how those issues lack
merit, and requesting permission to withdraw.

Commonwealth v. Doty, 48 A.3d 451, 454 (Pa. Super. 2012) (citation
omitted).

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obtained, that would render Appellant’s alleged confession unconstitutional.”

Id. at 9 (emphasis omitted). He claims that “[d]espite being ‘Mirandized,’

he knew that he would not leave the station a free man.” Id. at 11.

Appellant claims retained counsel was ineffective for stating in his no-merit

letter that “whatever legal improprieties there may have been with

respect to the recording of [Appellant’s] conversation with [R.E.’s mother]”

they were immaterial “because the evidence pertaining to this recording was

never introduced to the jury at trial.” Id. at 8 (emphasis in original).

Accordingly, Appellant avers that trial counsel was ineffective for failing to

seek suppression of his statements to police. He also indirectly suggests

retained PCRA counsel was ineffective when he stated that there were “legal

improprieties” with the wiretap, but then filed a no-merit letter stating that

there were no meritorious issues.

Upon review of the record, on February 15, 2011, Appellant filed a

counseled motion to suppress evidence asserting that, “[d]uring the course

of the investigation, law enforcement recorded a conversation between

[R.E.’s mother] and [Appellant].” Motion to Sup[p]ress Evidence,

2/15/2011, at 1, ¶2. The thrust of Appellant’s claim was that he believed

his conversation was private and the Commonwealth was prohibited from

recording such conversations. Id. at 1-2, ¶5. Appellant also argued that

the Commonwealth violated the Wiretap Act “by failing to obtain proper

paperwork” and “utilizing law enforcement not authorized under the

[Wiretap A]ct.” Id. at 2, ¶6.

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On February 24, 2011, following argument, the trial court entered an

order denying relief. Appellant did not appeal that determination on direct

appeal. Thus, this suppression issue was previously litigated prior to trial

and then waived because it could have been raised on direct appeal.

On this issue, however, in his pro se PCRA petition, Appellant also

alleges that trial counsel provided “gross negligence … in his representation

of [Appellant] at all phases of trial.” PCRA petition, 11/4/2013, at 3, ¶5(c).

Thus, we will examine whether direct appeal counsel was ineffective for

failing to litigate the issue on direct appeal and whether retained PCRA

counsel was ineffective for failing to raise the issue on collateral review. The

PCRA court determined Appellant was not entitled to relief, because his claim

lacks merit:

Following a hearing, [the trial court] denied [Appellant’s]
motion to suppress his recorded admissions; however, the
Commonwealth did not use the wiretap at trial.
Nonetheless, Appellant claims its nonuse does not prove
that the information thus obtained by police was not used
against him. [Appellant] does not identify the precise
evidence to which he objects, or whether and to what
extent, if at all, such evidence was used against him at trial.
Rather, he argues that any information so obtained was
available to and implicit in information furnished to police
who investigated the allegations against him. He thus
claims that any evidence garnered by the police based upon
their knowledge of his prior admissions [] should have been
excluded.

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[Appellant] confessed his culpability to police during non-
threatening questioning after full Miranda[8] warnings, and
substantially admitted his culpability when he testified in his
own defense at trial. Each of his teenage victims testified
against him at his trial, including the victim whose mother
spoke with Appellant during the recorded, wiretapped
conversation.

* * *

Instantly, there is no Fourth or Fifth Amendment violation of
[] Appellant’s rights, since the wiretap evidence was legally
obtained, and, importantly, Appellant was not compelled to
be a witness against himself during the wiretap, having
initiated the contact with the victim’s mother. There was no
interrogation by police during the wiretap. There is no
arguable Sixth Amendment right to counsel violation, since
the recorded conversation took place on February 4, 2010,
over a month before [Appellant] was arrested on March 11,
2010.

PCRA Court Opinion, 5/15/2015, at 10-12 (emphasis in original).

Upon review, we agree with the PCRA court’s assessment and discern

no abuse of discretion or error of law. As Appellant concedes, the police did

not use the information gleaned from the wiretapped conversation directly

against him during police interrogation or at his trial. We have confirmed

this information in our review of Officer Trautmann’s trial testimony.

Appellant was advised of his Miranda rights and he signed a consent form

before giving a confession. N.T., 3/1/2011, at 157-158. The video-

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8
Miranda v. Arizona, 384 U.S. 436 (1969). As a general rule, the
prosecution may not use statements, whether inculpatory or exculpatory,
stemming from a custodial interrogation of a defendant unless it
demonstrates that he was apprised of his right against self-incrimination and
his right to counsel. See Miranda, 384 U.S. at 444.

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recorded police interview was shown to the jury. Id. at 159. Moreover, at

trial, Appellant admitted that he had “sexual intercourse – vaginal

intercourse” with the subject of the wiretapped conversation, victim R.E.

N.T., 3/2/2011, at 77. Additionally, throughout Appellant’s pro se appellate

brief, Appellant admits culpability for the sexual acts referenced in the

wiretapped conversation. See Appellant’s Brief at 7 (“innocent flirtations

crossed the line of appropriateness. One relationship in particular, the one

with ‘R.E.’ went too far, and [Appellant] found himself in a consentual [sic]

sexual relationship with her.”) (emphasis supplied); id. at 30 (“Yes,

Appellant admitted his culpability for the offenses he committed”). As such,

there is no merit to Appellant’s claim that trial counsel should have

challenged Appellant’s statements to police. In turn, PCRA counsel cannot

be ineffective for failing to raise the issue on collateral review.

Finally, we note there is no reference appearing anywhere in the

record, and Appellant has not provided any, as to when the wiretap was

actually conducted. The date of the wiretap is not listed in the transcript of

the recorded conversation, Appellant’s pro se PCRA petition, Appellant’s

motion to suppress, either of PCRA counsels’ no-merit letters, or in

Appellant’s pro se appellate brief. As such, Appellant has not provided

evidence that police conducted the wiretap before the victims gave

“coerced” statements to police as he alleged. Thus, for this additional

reason, Appellant has not provided evidence to support his current claim.

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Next, in his fifth issue presented, Appellant claims that police used

self-incriminating evidence from a Loudermill hearing to coerce his

confession. Appellant’s Brief at 13-16. Essentially, Appellant claims that at

his Loudermill hearing “[h]e made several self-incriminating statements

concerning dates and times he was with ‘R.E.,’ which law enforcement

officers should not have been permitted to [use for investigative purposes]

because they were involuntarily given under the continuing threat of job and

career termination.” Id. at 15.

Regarding Appellant’s claim pertaining to his Loudermill hearing, the

PCRA court determined:

[Appellant] contends that the [Downingtown] School
Board’s hearing “was [transformed] into an illegal fishing
expedition benefiting the Commonwealth with a treasure
trove of illegally obtained incriminating evidence” against
him. As discussed by retained counsel in his “no-merit”
letter, Appellant was warned at the inception of the School
Board hearing, that he had the right to counsel and that any
statements he made could be used against him. Appellant
did not invoke his Fifth Amendment right. At trial, John
Nodecker, the principal of Downingtown West High School
testified that he was present at Appellant’s Loudermill
hearing. At that hearing, Appellant was informed of some
of the evidence that had been independently developed by
the School District respecting his encounters with female
students, particularly with respect to one of the victims,
who at the time was uncooperative; however, Mr. Nodecker
further testified that Appellant denied any sexual
conduct with that victim or other wrongdoing.
[Appellant] thereafter resigned his position with the School
District without further hearings being conducted by the
School Board.

* * *

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Contrary to Appellant’s [p]etition, the record in this case
does not support his averment that he disclosed
incriminating evidence at the Loudermill hearing. Rather,
he denied any allegations of wrongdoing. The evidence
used to convict Appellant was developed independently by
the police during their investigation, as spread upon the trial
record, including the trial testimony of his victims.
Appellant’s claim is meritless.

PCRA Court Opinion, 5/15/2015, at 12-14 (emphasis in original).

Upon review, we agree. There is no merit to Appellant’s claim that

counsel was ineffective. According to Principal Nodecker, Appellant did not

admit culpability at the Loudermill hearing. N.T., 3/1/2011, at 123-124.

Moreover, Appellant was not terminated due to his testimony at the

Loudermill hearing; instead, “[h]e resigned his position” soon thereafter.

Id. at 125.

Furthermore, Appellant claims that police used his admission that he

was with R.E. on one of the nights in question, as revealed at his

Loudermill hearing, to then coerce Appellant to inculpate himself.

However, upon review of the record, Officer Trautmann testified that he

interviewed R.E. on February 1, 2010, a day before Appellant’s Loudermill

hearing. Id. at 142. While R.E. denied having sex with Appellant in that

interview, Officer Trautmann testified as follows:

We began to discuss the incidents – or the night of the 17th
into the 18th [of January 2010], which would be a Sunday
into a Monday. She admitted to going out of the house[,]
leaving her cousin’s house. She admitted going over to
[Appellant’s] house. She used the word initiating a lot. She
said she initiated going over there. She said she initiated
hugging, she initiated kissing, she tried to initiate sex with
[Appellant].

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Id. at 143.

As the foregoing demonstrates, Appellant’s claim that the police used

information gleaned from the Loudermill hearing against him in a

subsequent police interview lacks merit. Police had the same information,

i.e., that Appellant was with R.E. on the night in question, from interviewing

the victim directly. This information was available to the police prior to

Appellant’s statements at the Loudermill hearing. As such, counsel cannot

be deemed ineffective for failing to raise a meritless issue. Thus, Appellant’s

fifth issue fails.

Appellant’s seventh issue, wherein he argues that the trial court

abused its discretion by imposing an excessive sentence because of its

consecutive nature, was previously litigated on direct appeal. See

Commonwealth v. Nicholson, 62 A.3d 454 (Pa. Super. 2012)

(unpublished memorandum denying Appellant’s claims on direct appeal) at

*12-14.

In his eighth issue presented, Appellant challenged the racial

composition of his jury for the first time in his untimely response to the

PCRA court’s Rule 907 notice, and, hence it is waived for the same reasons

as his second and third issues.9
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9
Moreover, our Supreme Court has stated:

We have stressed that a claim not raised in a PCRA petition
cannot be raised for the first time on appeal. We have
(Footnote Continued Next Page)

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Finally, in his ninth issue, Appellant claims the evidence at trial was

insufficient, or contrary to the weight of the evidence, to sustain his

conviction for IDSI. Appellant failed to raise this issue in his court-ordered

Rule 1925(b) concise statement of errors complained of on appeal and it is

waived. See Commonwealth v. Hill, 16 A.3d 484, 494 (Pa. 2011) (“In

order to preserve their claims for appellate review, appellants must comply

whenever the trial court orders them to file a statement of matters

complained of on appeal pursuant to Pa.R.A.P. 1925. Any issues not raised

in a Pa.R.A.P. 1925(b) statement will be deemed waived.”).

Having found Appellant failed to plead and prove any meritorious

issues or counsel’s ineffective assistance, at any level, we reject Appellant’s

sixth and tenth issues that generally allege ineffective and layered

ineffective assistance of counsel. Likewise, we conclude that Appellant was

not entitled to an evidentiary hearing. “There is no absolute right to an

evidentiary hearing.” Commonwealth v. Burton, 121 A.3d 1063, 1067

(Pa. Super. 2015) (en banc) (citation omitted). “On appeal, we examine the
_______________________
(Footnote Continued)

reasoned that permitting a PCRA petitioner to append new
claims to the appeal already on review would wrongly
subvert the time limitation and serial petition restrictions of
the PCRA. The proper vehicle for raising [a belated] claim is
… a subsequent PCRA petition.

Commonwealth v. Santiago, 855 A.2d 682, 691 (Pa. 2004) (internal
citations, quotations and original brackets omitted); see also Pa.R.A.P. 302
(“Issues not raised in the lower court are waived and cannot be raised for
the first time on appeal.”).

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issues raised in light of the record to determine whether the PCRA court

erred in concluding that there were no genuine issues of material fact and in

denying relief without an evidentiary hearing.” Id. As the abovementioned

analysis demonstrates, there were no genuine issues of material fact

requiring an evidentiary hearing. As such, Appellant’s first issue lacks merit.

Accordingly, Appellant is not entitled to relief.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 2/18/2016

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