Appeal from the PCRA Order, December 3, 2012, in the Court of Common Pleas of Beaver County Criminal Division at No. CP-04-CR-0000040-2010
BEFORE: FORD ELLIOTT, P.J.E., OTT AND WECHT, JJ.
FORD ELLIOTT, P.J.E.
Appellant appeals the order dismissing his first petition brought pursuant to the Post Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546. Finding no error, we affirm.
On July 15, 2010, a jury found appellant guilty of theft by unlawful taking, receiving stolen property, and criminal conspiracy. The charges against appellant arose from the theft of a safe from the victim's residence in Beaver Falls on July 12, 2009. Appellant's co-conspirators were Joseph Beaver and Thomas Zdrahal. Beaver testified against appellant and Zdrahal at their joint trial. During his testimony, Beaver was examined as to a prior statement he made to police in which he identified the third co-conspirator as his uncle, Jeffrey McCaughtry, rather than Zdrahal. Beaver testified that he was intoxicated by heroin at the time of the statement and identified Zdrahal from the stand as the third co-conspirator. Beaver also explained that McCaughtry knew about the crime before it happened and shared in its proceeds. McCaughtry also testified at trial. McCaughtry admitted selling a gold coin found in the safe on behalf of Beaver, but denied any other involvement in the crime. Importantly, Beaver and McCaughtry's testimonies did not differ as to appellant's involvement as both men identified appellant as one of the co-conspirators. (Notes of testimony, 7/14/10 at 94-97 (Beaver); 153-156 (McCaughtry).)
On September 8, 2010, appellant was sentenced to 2½ to 5 years' imprisonment followed by 2 years' probation. On September 17, 2010, appellant filed post-sentence motions. Among those motions was one in which appellant argued that his conviction was against the weight of the evidence. The basis for this claim was Beaver's conflicting statement to the police and his testimony at trial, as well as conflicts between the testimonies of Beaver and McCaughtry as to McCaughtry's involvement. These motions were denied on June 6, 2011.
Appellant timely filed a direct appeal raising his weight of the evidence and two additional issues. On March 1, 2012, a prior panel of this court affirmed the judgment of sentence, finding that the weight of the evidence issue was waived as inadequately briefed, and rejecting the remaining issues on their merits. Commonwealth v. McFarland, 47 A.3d 1233 (Pa.Super. 2012) (unpublished memorandum).
Appellant filed the instant PCRA petition pro se on May 16, 2012. Counsel was appointed and on September 12, 2012, an amended petition was filed raising a claim of ineffective assistance of direct appeal counsel for failing to adequately brief the weight of the evidence issue. On October 16, 2012, the PCRA court issued notice pursuant to Pa.R.Crim.P., Rule 907, 42 Pa.C.S.A., that it would deny appellant's petition without an evidentiary hearing. As noted, the court dismissed the petition on December 3, 2012, and appellant brings this timely appeal.
Appellant raises the following issues on appeal:
1. Prior trial counsel was ineffective for failing to fully and adequately brief the weight of the evidence issue raised on direct appeal, which caused the Superior Court of Pennsylvania to deem the defendant's issue waived; therefore, never addressing the merits of the issue.
2. The P.C.R.A. Court erred in finding that there was no genuine issue of material fact when prior trial counsel's procedurally defective brief resulted in a waiver of said issue because the Superior Court was unable to review the argument on its merits. Further, an evidentiary hearing was necessary to determine that the defendant's appellate rights were lost due to prior trial counsel's ineffectiveness.
Appellant's brief at 10.
Our standard of review for an order denying post-conviction relief is whether the record supports the PCRA court's determination, and whether the PCRA court's determination is free of legal error. Commonwealth v. Franklin, 990 A.2d 795, 797 (Pa.Super. 2010). The PCRA court's findings will not be ...