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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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 WILSON :
:
Appellant : No. 2197 EDA 2017
Appeal from the PCRA Order June 22, 2017
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0012880-2010
BEFORE: PANELLA, J., NICHOLS, J., and MUSMANNO, J.
MEMORANDUM BY NICHOLS, J.: FILED MAY 29, 2019
Appellant Kevin Wilson appeals from the order dismissing his timely first
Post Conviction Relief Act1 (PCRA) petition as meritless. Appellant argues that
the PCRA court erred in dismissing his claims that trial counsel was ineffective
for failing to file a post-sentence motion challenging the weight of the
evidence. Appellant also asserts that trial counsel was ineffective during
cross-examination of witnesses. We affirm.
This Court previously adopted the following summary of the facts
underlying Appellant’s convictions:
At 12:30 a.m. on July 12, 2008, the Complainant (Terrance
Savage) sat in the driver’s side seat of his motor vehicle and
conversed with a friend through the open front passenger window.
After a short conversation, the Complainant’s friend left.
Approximately ten seconds later, Appellant approached the front
driver’s side window, leaned in the open window, and held a black
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1 42 Pa.C.S. §§ 9541-9456.
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gun against the Complainant’s abdomen. Appellant told the
Complainant to “give everything up.” With his left hand, Appellant
took the Complainant’s chain, watch, and one thousand dollars.
Appellant then told the Complainant his name. The Complainant
testified that Appellant said “his name was Scar Face Kev and if I
wanted any trouble, ask about him.” After Appellant gave his
name, he shot the Complainant in the stomach, and walked away.
While the robbery was occurring, Kendall McGill was
approximately 40 feet away playing dice with other males. McGill
saw Appellant at the Complainant’s car. Approximately a minute
later, McGill heard a gunshot and saw Appellant quickly walk away
from Complainant’s car as he put a black gun in his left waistband
with his right hand. Appellant then walked past McGill and around
the corner.
After Appellant walked around the corner, the Complainant started
driving to Temple University Hospital. While driving, the
Complainant called his mother and told her that he had been shot.
When the Complainant arrived at the emergency room, doctors
performed surgery.
After approximately four days, the Complainant left the hospital
without permission because he feared for his safety. After leaving
the hospital, the Complainant went home. However, the
Complainant still did not tell the police that Appellant had shot him
because he feared for his life and did not want to be labeled a rat.
However, while the Complainant was home recovering, he
informed his mother and friends that Appellant had shot him.
Three months later, the Complainant finally told the police who
had shot him.
In March 2010, detectives attempted to arrest Appellant but they
could not locate him. On April 9, 2010, the Commonwealth
learned that Appellant was in custody at State Correctional
Institution (SCI) Greene. In April 2010, Officer Timothy Simpson
of the East Division Warrant Unit faxed a writ to SCI Greene to
bring Appellant to court. However, Appellant was not brought
down. Although the Commonwealth faxed additional requests on
May 4, 2010, May 21, 2010, and June 2, 2010, Appellant was still
not brought down. Finally, the Commonwealth paid
approximately $2,000.00 to extradite Appellant to Philadelphia.
On June 8, 2010, Appellant was extradited and arrested.
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Commonwealth v. Wilson, 59 EDA 2013, at 1-2 (Pa. Super. filed Sept. 22,
2014) (unpublished mem.) (quoting Trial Ct. Op., 9/25/13, at 2-4) (brackets
omitted).
Appellant was charged with attempted murder, aggravated assault,
robbery, possession of firearms prohibited, and related offenses,2 and
proceeded to a jury trial. At trial, the Commonwealth, in relevant part, called
Complainant3 and McGill, whose testimony was summarized above as part of
our decision in Appellant’s direct appeal.
We add that during the direct examinations of Complainant and McGill,
the Commonwealth elicited testimony that Complainant and McGill first gave
formal statements implicating Appellant after being charged with federal
crimes and as part of plea negotiations with federal authorities. The
Commonwealth also introduced McGill’s first statement to federal authorities.
According to McGill’s first statement, he did not see Appellant with a gun, but
saw Appellant place an object into his waistband that “had to be a gun.” N.T.,
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218 Pa.C.S. §§ 901(a), 2502; 18 Pa.C.S. §§ 2702(a), 3701(a)(ii), 6105(a)(1),
and 907(a), respectively.
3 Furthermore, while Complainant was testifying, the trial court excused the
jury for a sidebar conference, but Complainant remained on the stand and
Appellant remained in court. During the conference, Appellant allegedly
looked at Complainant, mouthed the words “I’m going to kill you,” and made
a gesture as if he was slashing his neck three times. N.T., 8/23/12, at 109.
The Commonwealth subsequently called a deputy sheriff who was standing
behind Appellant at that time to testify at trial regarding the gesture made by
Appellant. The trial court also issued a consciousness of guilt charge.
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8/24/12, at 74. McGill, however, gave a subsequent statement to federal
authorities indicating that Appellant had a black gun. Id. at 76-77.
During cross-examination of Complainant and McGill, Appellant’s trial
counsel noted that Complainant and McGill did not implicate Appellant
immediately after the shooting. Trial counsel’s examination emphasized that
the federal charges were brought against Complainant and McGill after the
shooting. Trial counsel further highlighted that Complainant and McGill were
testifying against Appellant under cooperation agreements with federal
authorities before being sentenced for their federal charges. In so doing, trial
counsel confronted Complainant and McGill with their possible sentencing
exposures for the federal offenses and indicated that they could receive
downward departures from the sentencing guidelines based on their
cooperation. Trial counsel also noted that Complainant and McGill were
cellmates while in federal custody.
Trial counsel did not cross-examine McGill about the discrepancy
between his first and subsequent statements regarding the object Appellant
placed in his waistband after the shooting. However, trial counsel did confront
McGill with another discrepancy between his first and subsequent statements,
noting that McGill initially stated that he heard a “bang” that sounded like
gunshots, but later indicated that he heard gunshots. Id. at 115-16.
After Appellant’s cross-examination of Complainant, the Commonwealth
called Complainant’s mother to the stand. Complainant’s mother testified that
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a couple of weeks after the shooting, she overheard Complainant on the phone
stating that the shooter identified himself as “Scar Face Kev.”4
At the conclusion of trial, the jury found Appellant guilty of all charges.5
The trial court sentenced Appellant to an aggregate term of twenty to forty
years’ imprisonment and a consecutive fifteen years’ probation. Trial counsel
did not file post-sentence motions on Appellant’s behalf, but took a direct
appeal to this Court.
On September 22, 2014, this Court affirmed the judgment of sentence.
See Wilson, 59 EDA 2013, at 1. Appellant did not file a petition for allowance
of appeal in the Pennsylvania Supreme Court.
Appellant timely filed a pro se PCRA petition that was postmarked on
January 21, 2015. The PCRA court appointed present counsel,6 who filed an
amended petition and memorandum of law on August 3, 2016. Appellant
claimed trial counsel was ineffective for failing to (1) preserve a weight of the
evidence challenge in the trial court and (2) cross-examine Complainant and
McGill with evidence that would have impeached their testimony and
demonstrated their bias.
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4 As discussed in Appellant’s direct appeal, Complainant’s mother’s testimony
was admitted as a prior consistent statement, and the trial court issued a
cautionary instruction directing the jury not to consider the statement for the
truth of the matter asserted. Wilson, 59 EDA 2013, at 13-21.
5The jury specifically found that the attempt at murder resulted in serious
bodily injury to Complainant.
6 The Honorable Glynnis Hill presided over the trial, sentencing, and the
instant PCRA proceedings.
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Alternatively, Appellant claimed that trial counsel was ineffective for
emphasizing that Complainant testified against him to obtain reduced federal
prison sentences. According to Appellant, such testimony opened the door for
the Commonwealth to admit testimony about Complainant’s prior consistent
statement identifying Appellant as the shooter.
Appellant also asserted that trial counsel should have obtained
Complainant’s phone records to show Complainant was “selling drugs and
committing other crimes while in prison.” Mem. of Law, 8/3/16, at 13.
Appellant suggested that the Commonwealth’s failure to disclose
Complainant’s phone records constituted a violation of Brady v. Maryland,
373 U.S. 83 (1963).
On December 13, 2016, the Commonwealth filed a motion to dismiss
Appellant’s PCRA petition asserting that Appellant’s claims failed to state a
basis for relief. On May 5, 2017, the PCRA court issued a Pa.R.A.P. 907 notice
of its intent to dismiss Appellant’s petition. Appellant did not respond, and
the court dismissed Appellant’s petition on June 22, 2017.
Appellant filed a timely notice of appeal and complied with the PCRA
court’s order to file and serve a Pa.R.A.P. 1925(b) statement. The court filed
a responsive opinion concluding that Appellant failed to demonstrate prejudice
from trial counsel’s failure to seek a new trial based on the weight of the
evidence. The court further determined that the record did not support
Appellant’s claims that trial counsel was ineffective during cross-examination
of the Commonwealth’s witnesses and that Appellant failed to establish his
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alternative claims challenging the adequacy of trial counsel’s cross
examination.
Appellant now presents the following issues for review:
[1.] Whether the [PCRA c]ourt erred in denying the Appellant’s
PCRA petition without an evidentiary hearing on the issues raised
in the amended PCRA petition regarding Trial Counsel’s
ineffectiveness.
[2.] Whether the [PCRA c]ourt erred in not granting relief on the
PCRA petition alleging Counsel was ineffective.
Appellant’s Brief at 8.
Appellant presents three arguments in his brief: (1) the PCRA court
erred in finding that there was no basis for a new trial based on the weight of
the evidence, see id. at 18-20; (2) the PCRA court erred in finding that trial
counsel conducted adequate cross-examination of the Commonwealth’s
witnesses, see id. at 20-22; and (3) the PCRA court erred in declining to hold
an evidentiary hearing, see id. at 15-16.7 Before addressing these arguments
in detail, we set forth the general principles governing our review.
This Court’s review from the dismissal of a PCRA petition “is limited to
examining whether the PCRA court’s determination is supported by the
evidence of record and whether it is free of legal error.” Commonwealth v.
Ousley, 21 A.3d 1238, 1242 (Pa. Super. 2011) (citation omitted).
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7We address Appellant’s arguments in a different order than presented in his
brief.
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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) (citation omitted). The burden is on the
petitioner to prove all three of the following prongs: “(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 outcome of the proceedings would
have been different.” Id. (citation omitted). “A failure to satisfy any prong
of the ineffectiveness test requires rejection of the claim of ineffectiveness.”
Commonwealth v. Daniels, 963 A.2d 409, 419 (Pa. 2009) (citation
omitted).
The Pennsylvania Supreme Court has stated that “boilerplate 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). Moreover, a
petitioner cannot rely on mere conjecture and speculation to establish a claim
of ineffectiveness. See Commonwealth v. Spotz, 896 A.2d 1191, 1216 (Pa.
2006)
A PCRA petitioner is not automatically entitled to an evidentiary hearing.
See Commonwealth v. Smith, 121 A.3d 1049, 1052 (Pa. Super. 2015).
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“[T]he PCRA court can decline to hold a hearing if there is no genuine issue
concerning any material fact and the petitioner is not entitled to post-
conviction collateral relief, and no purpose would be served by any further
proceedings.” Id. (citation and quotation marks omitted) On appeal, we
“examine each of the issues raised in the PCRA petition in light of the record
in order 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. (citation omitted).
Appellant first argues that the PCRA court erred in dismissing his claim
that trial counsel should have sought a new trial based on the weight of the
evidence. Appellant’s Brief at 18. He notes:
The Commonwealth’s case depended heavily upon the testimony
of [Complainant] and Kendall McGill. There was no physical
evidence that tied Appellant to the offense. [Complainant] made
a deal with the government so that he could get a lighter sentence.
He had numerous arrests. And he was subsequently not a credible
witness. Likewise, . . . McGill’s testimony regarding the existence
of a handgun was inconsistent at trial as well. This witness’s first
statement declared that he did not see the Appellant with a gun
but saw him put an object that “had to be a gun” to his waist.
Then, inconsistent with this, the second statement declared that
he saw a portion of the gun.
Due to the lack of credibility of the Commonwealth witnesses who
were all trying to make deals to save themselves, a fact that prior
counsel failed to explore adequately on cross-examination, the
evidence preponderates sufficiently heavily against Appellant’s
conviction and suggests that a serious miscarriage of justice may
have occurred. There is little evidence in the present case
supporting the verdict reached by the jury.
Id. at 19.
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It is well settled that a challenge to the weight of the evidence must be
preserved in the trial court. See Pa.R.Crim.P. 607. In the context of an
ineffective assistance of counsel claim, the failure to file a post-sentence
motion does not give rise to a presumption of prejudice. See
Commonwealth v. Reaves, 923 A.2d 1119, 1131-32 (Pa. 2007). Therefore,
a petitioner must establish that there is a reasonable probability that a motion
would have led to a different outcome. See Reaves, 923 A.2d at 1131.
The Pennsylvania Supreme Court has described a motion for a new trial
based on a challenge to the weight of the evidence as follows:
A motion for a new trial based on a claim that the verdict is against
the weight of the evidence is addressed to the discretion of the
trial court. 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 judge is to determine that ‘notwithstanding all the facts,
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.’”
It has often been stated that “a new trial should be awarded when
the jury’s verdict is so contrary to the evidence as to shock one's
sense of justice and the award of a new trial is imperative so that
right may be given another opportunity to prevail.”
An appellate court’s standard of review when presented with a
weight of the evidence claim is distinct from the standard of review
applied by the trial court:
Appellate review of a weight claim is a review of the
exercise of discretion, not of the underlying question
of whether the verdict is against the weight of the
evidence. Because the trial judge has had the opportunity
to hear and see the evidence presented, an appellate court
will give the gravest consideration to the findings and
reasons advanced by the trial judge when reviewing a trial
court’s determination that the verdict is against the weight
of the evidence. One of the least assailable reasons for
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granting or denying a new trial is the lower court’s
conviction that the verdict was or was not against the weight
of the evidence and that a new trial should be granted in the
interest of justice.
Commonwealth v. Clay, 64 A.3d 1049, 1054-55 (Pa. 2013) (citations
omitted) emphasis in original).
Instantly, the PCRA court determined that there was no reasonable
probability that Appellant would have been entitled to a new trial if trial
counsel challenged the weight of the evidence. As noted by the judge, who
presided at both the trial and the instant PCRA proceeding, the verdict did not
shock the conscience. PCRA Ct. Op., 1/16/18, at 3. Both Complainant and
McGill positively identified Appellant as the shooter. Furthermore, Appellant
presented ample testimony attempting to impeach the credibility of
Complainant and McGill.
Based on the foregoing, we conclude that the PCRA court properly
concluded that Appellant failed to establish prejudice. The impeachment
evidence against Complainant and McGill was not of such greater weight that
to ignore it or to give it equal weight constituted a denial of justice. See Clay,
64 A.3d at 1054-55. Therefore, even if trial counsel had properly preserved
a challenge to the weight of the evidence in the direct appeal, we discern no
basis to conclude that Appellant would have been entitled to a new trial. See
Reaves, 923 A.2d at 1131-32. Accordingly, Appellant’s first argument fails.
See Ousley, 21 A.3d at 1242.
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Appellant next argues that the PCRA court erred in concluding that trial
counsel’s cross-examination of Complainant and McGill was inadequate.
Appellant presents several contentions in support of this argument.
First, Appellant contends that trial counsel “did not thoroughly cross
examine [McGill or Complainant] to show they were cooperating to get a
reduced sentence on an unrelated charge” or failed to reveal their biases.
However, as noted by the PCRA court, the record contradicts this contention.
Instantly, trial counsel repeatedly emphasized that Complainant and
McGill first gave formal statements implicating Appellant after being charged
with federal offenses. See N.T., 8/23/12, at 122, 136; N.T., 8/24/12, at 114.
Trial counsel highlighted the possible sentences that McGill and Complainant
faced on those charges, and the possibility that they could, and hope to,
receive a recommendation for a downward deviation for their cooperation.
See N.T., 8/23/12, at 70 (indicating that Complainant was facing a maximum
sentence of life), 76 (indicating that the federal authorities could file a motion
for a downward departure based on Complainant’s cooperation); N.T.,
8/24/12, at 97, 109, 119. Further, as noted by the PCRA court, trial counsel
attempted to show that Complainant and McGill had been promised favorable
treatment if they testified against Appellant, but they denied any promises of
leniency. See PCRA Ct. Op. at 6 (citing N.T., 8/23/12, at 133; N.T., 8/24/12
at 98).
Therefore, Appellant’s contention that trial counsel failed to raise
Complainant’s and McGill’s unrelated federal charges during cross-
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examination lacks arguable merit. Accordingly, we discern no error in the
PCRA court’s ruling. See Daniels, 963 A.2d at 419; Ousley, 21 A.3d at 1242.
Second, Appellant asserts that trial counsel was ineffective for failing to
cross-examine McGill using his prior statements to federal authorities.
Appellant’s Brief at 20. Appellant emphasizes that McGill initially stated that
after the shooting, McGill saw Appellant place an object that had to be a gun
in his waistband. Id. Later, McGill told federal authorities that he saw
Appellant put a black gun into waistband. Id. Appellant concedes that this
discrepancy was raised by the Commonwealth during its direct examination of
McGill, but claims that trial counsel should have highlighted the discrepancy
during cross-examination. Id.
Our review confirms that the Commonwealth raised this discrepancy
during direct examination. See N.T., 8/24/12, at 74-77. Trial counsel did not
question McGill about the fact that he initially told federal authorities that he
saw Appellant put an object in his waistband, and later described the object
as a black gun. See id. at 115-16. However, trial counsel cross-examined
McGill regarding a difference between his first and second statements to
federal authorities, noting that McGill initially told federal authorities that at
the time of the shooting, he heard a “bang.” See id. Trial counsel elicited
McGill’s testimony that the two statements were different. See id.
Therefore, the jury was aware that McGill provided greater details in his
second statement to police. Although trial counsel did not specifically impeach
McGill regarding McGill’s statements about the object Appellant placed in his
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waistband, trial counsel emphasized the differences between McGill’s first and
second statements. Under the circumstances of this case, we discern no basis
to conclude that Appellant established prejudice as a result of trial counsel’s
failure to cross-examine McGill about his prior statements concerning the gun.
Accordingly, no relief is due. See Ousley, 21 A.3d at 1242.
Third, Appellant contends that trial counsel was ineffective for cross-
examining Complainant about the federal plea agreement. Appellant’s Brief
at 21-22. According to Appellant, this permitted the Commonwealth to
present Complainant’s mother to testify that Complainant made a prior
consistent statement identifying Appellant as a shooter. Id. Additionally,
Appellant suggests that trial counsel should have objected to Complainant’s
mother’s testimony, because Complainant stated that he never told his mother
who the shooter was. Id. at 21-22.
At the outset, we note that this contention directly contradicts
Appellant’s previous claim that trial counsel failed to demonstrate
Complainant’s bias based on the federal charges. In any event, Appellant, as
petitioner, was required to plead that trial counsel lacked a reasonable basis
for his decision, and failed to do so. See Turetsky, 925 A.2d at 880
More specifically, Appellant bears the burden of showing a substantially
greater possibility of success at trial if trial counsel did not cross-examine
Complainant about the federal charges to avoid the possible admission of a
prior consistent statement. Instantly, Appellant failed to plead or develop any
argument on appeal that trial counsel’s decision to impeach Complainant using
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the federal charges was unreasonable under the circumstances of this case.
Accordingly, we conclude that no relief is due based on Appellant’s boilerplate
contention. See Paddy, 15 A.3d at 443.
Fourth, Appellant contends that trial counsel was ineffective for failing
to object to Complainant’s mother’s testimony regarding Complainant’s prior
consistent statement. Appellant’s Brief at 21-22. Appellant asserts that trial
counsel should have objected because Complainant testified that he did not
tell his mother who shot him. Id.
We note that this contention was undeveloped in Appellant’s amended
PCRA petition and on appeal. See Paddy, 15 A.3d at 443. On appeal,
Appellant does not refer to any point in the record indicating that Complainant
stated he did not tell his mother who shot him. See Pa.R.A.P. 2119(c).
Moreover, Appellant fails to cite any case law to show that his proposed
objection concerned the admissibility, rather than the weight of the prior
consistent statement.8 Therefore, Appellant has waived consideration of this
claim. See Commonwealth v. Johnson, 985 A.2d 915, 925 (Pa. 2009).
Fifth, Appellant contends that trial counsel should have cross-examined
Complainant using phone records to demonstrate that Complainant was “still
selling drugs and committing other crimes while in prison.” Appellant’s Brief
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8 We add that Complainant’s mother testified that she overheard Complainant
indicating that the shooter identified himself as “Scar Face Kev” during a
phone conversation with an unidentified third party. N.T., 8/24/12, at 20.
Sometime after overhearing this conversation, Complainant’s mother stated
that Complainant told her about the shooter, when she “questioned him
[about] who Scar Face Kev was.” Id. at 20.
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at 21. Alternatively, Appellant asserts that the Commonwealth violated Brady
by failing to disclose Complainant’s phone records. Id.
Instantly, the PCRA court rejected this contention, noting that Appellant
failed to establish how such evidence would have been relevant. PCRA Ct. Op.
at 8. The court also concluded that such evidence would have been
inadmissible character evidence. Id.
Our review reveals that Appellant offered no corroboration for his
assertion that Complainant’s phone records would contain evidence that
Complainant was engaged in drug trafficking while in prison. Spotz, 896 A.2d
at 1216 (noting that mere conjecture and speculation that favorable evidence
existed did not meet a PCRA petitioner’s burden of proof). Accordingly,
Appellant’s contention that the PCRA court erred in dismissing his contention
based on Complainant’s phone records fails. See id.
In his final argument, Appellant asserts that the PCRA court erred in
dismissing his petition without a hearing. However, in light of our review of
Appellant’s substantive claims, we agree with the PCRA court that Appellant’s
petition did not raise genuine issues of fact as to his claims. Therefore, the
PCRA court did not abuse its discretion in declining to hold a hearing. Smith,
121 A.3d at 1052.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/29/19
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