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[U] Commonwealth v. Latorre

Superior Court of Pennsylvania

March 11, 2014



Appeal from the PCRA Order Entered January 24, 2013, In the Court of Common Pleas of Philadelphia County, Criminal Division, at No. CP-51-CR-0009532-2007.




Appellant, Christopher A. Latorre, appeals from the order entered January 24, 2013, dismissing his petition filed pursuant to the Post-Conviction Relief Act ("PCRA"), 42 Pa.C.S.A. §§ 9541-9546. We affirm.

We summarized the facts of the crime in a prior appeal, as follows:

On May 3, 2007, Ms. Carmen Delgado and the [victim], Mr. Melvin Candaleria, were residing together at 207 Linton Street, Philadelphia. Following an argument which escalated into a physical altercation, both individuals left the residence and went to homes of respective family members. Later in the afternoon, Ms. Delgado returned to the Linton Street residence along with Mr. Ezequiel Delgado, her brother[, ] and Appellant, her stepbrother[, ] to remove the [victim's] belongings. Appellant was in possession of an operable firearm. Once arriving at her residence, Ms. Delgado and her two siblings began packing up the [victim's] personal items. Shortly thereafter, Ms. Delgado left the house, leaving her two siblings to continue packing.
The [victim] arrived home in the evening unaware that anyone was present inside. Upon entering the house, the [victim] heard footsteps upstairs and called Ms. Delgado's name twice. [The victim] did not receive a response, and began walking up the stairs to investigate. Part-way up the steps, Appellant entered the stairway and struck the [victim] on the left temple with a silver hand gun. The [victim] immediately recognized Appellant and said, "let[']s talk, it's not that serious." Appellant responded by telling the [victim] to leave the premises, while pointing the gun at him. The [victim] lifted his hands, and turned his body around in the leftward direction and began to descend the remaining steps. After taking two steps, Appellant discharged the weapon a single time. The bullet struck the [victim], who was unarmed, several inches below the neck and one inch from the spinal cord.
After Appellant shot the [victim], he began issuing verbal threats; he told the [victim], "I will hurt you if you say anything, " and not to tell anybody or else there would be problems. Mr. Delgado, who heard voices and a gunshot, ran down the stairs and observed the [victim] lying on the ground, and Appellant standing nearby. Mr. Delgado asked Appellant where he got the gun, and why did he shoot him. Appellant and Mr. Delgado then left the residence, while the [victim] remained lying near the base of the steps.
The [victim] crawled to the door, and was able to successfully summon a neighbor to call the paramedics. The [victim] was subsequently transported to Einstein Medical Center. As a result of the gunshot, [victim] is paralyzed from the chest down. Mr. Delgado has never seen the [victim] in possession of a firearm, and pursuant to police search, no firearms were recovered from the Linton Street residence.

Commonwealth v. Latorre, 2032 EDA 2008, 991 A.2d 358 (Pa. Super. filed January 15, 2010) (unpublished memorandum at 1–3).

On April 24, 2008, following a bench trial, Appellant was convicted of aggravated assault, recklessly endangering another person ("REAP"), terroristic threats, possession of an instrument of crime ("PIC"), conspiracy, and two violations of the Uniform Firearms Act ("VUFA"). He was sentenced to an aggregate term of imprisonment of nineteen and one-half to thirty-nine years on June 11, 2008. This Court affirmed the judgment of sentence, and our Supreme Court denied Appellant's petition for allowance of appeal. Latorre, 991 A.2d 358 (unpublished memorandum), appeal denied, 69 EAL 2010, 4 A.3d 1052 (Pa. filed August 12, 2010).

On March 4, 2011, Appellant filed a pro se PCRA petition. Newly appointed counsel filed both an amended petition on September 13, 2012, and a supplemental amended petition on December 6, 2012. The PCRA court granted relief with respect to Appellant's claim that trial counsel was ineffective for failing to argue that Appellant's conviction for REAP should have merged with aggravated assault for sentencing purposes. With the Commonwealth's agreement, the court resentenced Appellant to an aggregate term of imprisonment of eighteen and one-half to thirty-seven years followed by ten years of probation. It denied Appellant's petition in all other respects.

Appellant raises the following issues in this appeal:
I. Whether the judge was in error 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.
II. Whether the Judge was in error in not granting relief on the PCRA petition alleging counsel was ineffective for the following reasons:
Whether Trial counsel was ineffective for turning down a plea offer without consulting Appellant.
Whether Trial counsel was ineffective for advising Appellant not to testify.
Whether Trial counsel was ineffective for failing to properly represent Appellant.
Whether Appellate counsel was ineffective for failing to argue the evidence was against the weight of evidence and contrary to law.

Appellant's Brief at 8.

In reviewing the denial of PCRA relief, we examine whether the PCRA court's determinations are supported by the record and are free of legal error. Commonwealth v. Spotz, 18 A.3d 244 (Pa. 2011). The PCRA court's credibility determinations, when supported by the record, are binding on this Court. Id. In order to obtain collateral relief, a PCRA petitioner must establish by a preponderance of the evidence that his conviction or sentence resulted from one or more of the circumstances enumerated in 42 Pa.C.S.A. § 9543(a)(2).

In this appeal, the issues before us concern the alleged ineffective assistance of Appellant's trial counsel. 42 Pa.C.S.A. § 9543(a)(2)(ii). Our Supreme Court recently reiterated:

Counsel is presumed effective, and the petitioner bears the burden of proving otherwise. Commonwealth v. Hanible, 612 Pa. 183, 30 A.3d 426, 439 (2011). To prevail on an ineffectiveness claim, the petitioner must plead and prove, by a preponderance of the evidence, the following three elements: (1) the underlying claim has arguable merit; (2) counsel had no reasonable basis for his or her action or inaction; and (3) the petitioner suffered prejudice as a result of counsel's action or inaction. Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973 (1987) (clarifying that the standard for analyzing ineffective assistance of counsel claims in Pennsylvania is the same as the federal standard set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)); see Spotz, supra at 260 (applying the Strickland/Pierce standard). With regard to the second, reasonable basis element, "we do not question whether there were other more logical courses of action which counsel could have pursued; rather, we must examine whether counsel's decisions had any reasonable basis." Hanible, supra at 439 (citation omitted). We will conclude that counsel's strategy lacked a reasonable basis only if the petitioner proves that a foregone alternative "offered a potential for success substantially greater than the course actually pursued." Spotz, supra at 260 (citation omitted). To establish the third, the prejudice element, the petitioner must show that there is a reasonable probability that the outcome of the proceedings would have been different but for counsel's action or inaction. Id. Counsel will not be found ineffective for failing to raise a meritless claim. Commonwealth v. Washington, 592 Pa. 698, 927 A.2d 586, 603 (2007).
The PCRA court has the discretion to dismiss a petition without a hearing when the court is satisfied "that there are no genuine issues concerning any material fact, the defendant is not entitled to post-conviction collateral relief, and no legitimate purpose would be served by further proceedings." Commonwealth v. Paddy, 609 Pa. 272, 15 A.3d 431, 442 (2011) (quoting Pa.R.Crim.P. 909(B)(2)). "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." Id. (quoting Commonwealth v. D'Amato, 579 Pa. 490, 856 A.2d 806, 820 (2004)). We stress that an evidentiary hearing "is not meant to function as a fishing expedition for any possible evidence that may support some speculative claim of ineffectiveness." Commonwealth v. Jones, 571 Pa. 112, 811 A.2d 994, 1003 n. 8 (2002) (citation omitted). In Jones, we declined to remand for an evidentiary hearing when the appellant merely asserted that counsel did not have a reasonable basis for his lack of action but made no proffer of evidence as to counsel's lack of action.

Commonwealth v. Roney, 79 A.3d 595, 603–604 (Pa. 2013).

In his first issue, Appellant merely cites to a litany of cases that explain the court's considerations in assessing whether to hold an evidentiary hearing. He makes no particularized argument concerning whether a hearing should have been held, save the bald allegation that the PCRA court should have done so. Given the paucity of a particularized argument, we would be forced to guess as to Appellant's claim. Commonwealth v. Bobin, 916 A.2d 1164, 1168 (Pa. Super. 2007). Thus, Appellant has waived this claim as a separate issue by failing to develop it in the argument section of his brief. See Commonwealth v. B.D.G., 959 A.2d 362, 371 (Pa. Super. 2008) ("In an appellate brief, parties must provide an argument as to each question, which should include a discussion and citation of pertinent authorities."); Pa.R.A.P. 2119. However, where the PCRA court's failure to hold an evidentiary hearing is relevant to our resolution of Appellant's claims of ineffective assistance of counsel in issue II, and Appellant develops the issue of the denial of a hearing in relation to that claim, by necessity we will address the claim.

We turn to the allegations of ineffective assistance of counsel set forth in issue II. Appellant asserts that trial counsel failed to advise him of a plea offer of eight to twenty years of imprisonment, claiming that counsel rejected the offer without speaking to him about it. He maintains that "his stepfather was aware of the plea offer[, ] and his stepfather spoke with the [assistant district attorney] regarding this." Appellant's Brief at 17. Without explanation, Appellant cites Lafler v. Cooper, U.S., 132 S.Ct. 1376 (2012), for the proposition that "there is a Constitutional right to a plea bargain." Appellant's Brief at 18.

In rejecting this claim, the PCRA court stated as follows:
Here, Appellant's self-contradicting assertions defeat his claim and cumulatively are insufficient to establish a claim of relief. Despite Appellant's claim that he was never advised of a plea offer from the ADA (See Amended Petition, Appendix A, 2), in his counseled petition he nevertheless referenced a consultation with counsel directly regarding the plea offer. See Supplemental Amended Petition, 11. Additionally, a statement from the Appellant's step-father corroborates his admission that counsel did in fact present the offer to him. See Amended Petition Appendix B. Specifically, he described the following exchange with the ADA:
At one point . . . I asked ADA Lynn O'Brien, if there was any plea agreement deal that can be presented to Christopher. I was told by ADA Lynn O'Brien that the only agreement she would be willing to offer is "8 to 20 years for attempted murder." I asked was Christopher aware of this, she stated "his attorney knows this, and is bringing it to him again."
Id. Appellant's own averments belie his contention that counsel failed to apprise of him of the plea offer. The court therefore declined to grant relief or an evidentiary hearing.

PCRA Court Opinion, 4/11/13, at 3–4.

We recently stated that the right to effective assistance of counsel during the plea bargaining process "has been recognized for decades." Commonwealth v. Lewis, 63 A.3d 1274, 1280 (Pa. Super. 2013). Indeed, this Court recently held that it was "apparent" that Lafler did not create "a new constitutional right. Instead, [this] decision[] simply applied the Sixth Amendment right to counsel, and the Strickland test[1] for demonstrating counsel's ineffectiveness, to the particular circumstances at hand . . . ." Feliciano, 69 A.3d 1270, 1277 (Pa. Super. 2013). See also Commonwealth v. Hernandez, 79 A.3d 649, 654 (Pa. Super. 2013) ("Lafler. . . do[es] not recognize a new constitutional right.").

Appellant's issue is that trial counsel turned down a plea offer of eight to twenty years of imprisonment without apprising Appellant of the offer, allegedly as evidenced by Appellant's step-father's representation. However, Appellant failed to append an affidavit from trial counsel or other proof establishing that a plea offer was made, that counsel failed to convey the offer, and that counsel had no reasonable basis for failing to inform Appellant of the offer.

Furthermore, the documentation Appellant did append to his amended petition undermines his claim. Appellant attached correspondence from his step-father, Thomas Blanchard, to his amended petition, representing that assistant district attorney ("ADA") Lynn O'Brien, in response to questioning from Mr. Blanchard on the day of trial, April 24, 2008, concerning a possible plea bargain, replied that the "only agreement she would be willing to offer is '8 to 20 years for attempted murder.'" Amended PCRA petition, 9/13/12, at Appendix B. When Mr. Blanchard asked if Appellant was aware of the offer, ADA O'Brien allegedly told him, "[H]is attorney knows this, and is bringing it to him again." Id. (emphasis added). Mr. Blanchard continued that trial counsel "got finished concluding his conversation with [Appellant]" and told Mr. Blanchard, "[Appellant] turned down the plea agreement, and will go to [trial]." Id.

In its motion to dismiss, the Commonwealth acknowledged that ADA Dawn Holtz extended a plea offer of eight to twenty years of imprisonment on September 13, 2007, which was seven months earlier than the conversation Appellant's step-father described. The Commonwealth represented, "[A] marking on the Commonwealth's trial file indicates that its plea offer was rejected on October 4, 2007, and that [Appellant] was present in the courtroom before the Honorable Dembe on that date." Motion to Dismiss, 1/2/13, at 6 n.1.

The purported support for Appellant's bald, self-serving claim that trial counsel failed to advise Appellant of a plea agreement, thereby providing ineffective assistance of counsel, actually supports the contrary position. Mr. Blanchard stated that trial counsel told him Appellant "turned down" the plea agreement. His comment that ADA O'Brien revealed that trial counsel was taking the plea offer to Appellant "again" not only supports that trial counsel informed Appellant of the offer once before, but it is consistent with the Commonwealth's position that ADA Holtz had conveyed the offer seven months earlier, and Appellant had rejected it then, as well as on the day of trial.

Clearly, this allegation by Appellant did not compel the PCRA court to hold a hearing in the absence of a genuine issue of fact. See Commonwealth v. Marshall, 812 A.2d 539, 545 (Pa. 2002) ("A court may dismiss a PCRA petition without holding a hearing if there are no genuine issues concerning any material fact.") (citing Pa.R.Crim.P. 907(1)). The issue lacks merit.[2]

Appellant's next issue asserts trial counsel's ineffectiveness for advising Appellant not to testify at trial. "The decision whether to testify is ultimately to be made by the accused after consultation with counsel." Commonwealth v. Daniels, 999 A.2d 590, 596 (Pa. Super. 2010) (citing Commonwealth v. Whitney, 708 A.2d 471, 476 (Pa. 1998) (citation omitted)).

Claims alleging ineffectiveness of counsel premised on allegations that trial counsel's actions interfered with an accused's right to testify require a defendant to prove either that "counsel interfered with his right to testify, or that counsel gave specific advice so unreasonable as to vitiate a knowing and intelligent decision to testify on his own behalf."

Commonwealth v. Miller, 987 A.2d 638, 660 (Pa. 2009) (quoting Commonwealth v. Nieves, 746 A.2d 1102, 1104 (Pa. 2000)). The PCRA court stated, inter alia, the following in regard to this claim:

Although presented in his counseled petition, Appellant's claim that he repeatedly expressed his desire to testify was absent from both the trial record and his affidavit. See Amended Petition, Appendix A. During the jury trial waiver colloquy, trial counsel advised Appellant that he would decide whether to testify and Appellant subsequently voiced his satisfaction with counsel's advice. See N.T. 4/28/12, 10-12. At no time during trial did Appellant indicate that counsel ignored his decision and refused to permit him to testify. The trial record therefore did not support Appellant's contention.

PCRA Court Opinion, 4/11/13, at 4.

We agree with the PCRA court that the record reflects that trial counsel specifically instructed Appellant that it was his decision alone to decide whether to testify at trial. N.T., 4/24/08, at 10–11. Although not asserted in the PCRA petition, Appellant's affidavit attached to his amended petition averred that "the only reason trial counsel told me not to testify was because he was not prepared, " yet Appellant never raised a concern regarding counsel's preparedness. Amended PCRA petition, 9/13/12, at Appendix A (emphasis in original). Further, Appellant never asserted in his affidavit that he told trial counsel he wanted to testify. Thus, the record belies Appellant's claim.

Moreover, in support of his claim, Appellant relies upon Commonwealth v. Neal, 618 A.2d 438 (Pa. Super. 1992), asserting that in Neal, "the court awarded a new trial when the defendant was not properly advised of his absolute right to testify, and his testimony would have provided essential defense testimony that may have negated a key part of the Commonwealth's case." Appellant's Brief at 20. That case is distinguishable. Appellant herein makes no allegation that he was not advised of his right to testify; indeed, he could not, because the record clearly supports that Appellant was so apprised. N.T., 4/24/08, at 10–11. Secondly, Appellant does not allege that his own testimony would have negated a key element of the Commonwealth's case, as in Neal.

Finally, in his affidavit attached to his amended petition, Appellant suggests his testimony was the "only way for me to prove 'imperfect self defense.'"[3] Amended PCRA petition, 9/13/12, at Appendix A. This assertion provides no relief. The facts as set forth by this Court in the direct appeal reveal that Appellant shot his unarmed victim in the back as he walked away from Appellant. Latorre, 991 A.2d 358 (unpublished memorandum at 2). Consistently, the trial court, in its supplemental Pa.R.A.P. 1925(a) opinion, stated that "[a]fter pistol whipping the unsuspecting [victim] in the side of the head, [Appellant] shot him in his upper back as he was compliantly walking away." Trial Court Supplemental Pa.R.A.P. 1925(a) Opinion, 12/18/08, at 4; See N.T., 4/24/08 at 19 (victim testified he turned around and walked down three steps and was shot); id. at 27–28 (gunshot wound was "3 to 4 inches from the base of the [victim's] neck down, and approximately 1 inch to the left of his spinal column"); id. at 40, 44 (victim testified he walked down the stairs with both hands held in the air and was shot in the back). After shooting the victim, Appellant threatened to hurt the victim again if he said anything about the shooting. Id. at 67–68, 85.

We agree with the PCRA court's assessment that there were no facts even to justify a hearing on this issue. The PCRA court stated:

The lack of support for Appellant's claim notwithstanding, the court determined, after reviewing the facts of the case and its credibility determinations, that testimony by the Appellant would not have altered the outcome at trial. The court found the [victim] extremely credible testifying regarding the circumstances in which he was shot by the Appellant. See Trial Court's Opinion, 12/18/08, 1-3, 7. Moreover, because the court found the [victim] was facing and walking away from the Appellant when he was shot, an assertion of self-defense would not have been accepted at trial. The subsequent threat issued by the Appellant, which he concedes, would not have been found supportive of his characterization of the shooting as a mistake. See Amended Petition, Appendix C. Testimony by the Appellant advancing a self-defense theory would not have changed the verdict and therefore the court determined that his petition failed to establish prejudice.

PCRA Court Opinion, 4/11/13, at 4-5. Accordingly, the PCRA court properly rejected this claim.

Next, Appellant asserts that trial counsel was ineffective for "failing to properly represent Appellant." Appellant's Brief at 8. The PCRA court, in rejecting the claim, stated as follows:

The Appellant next contends that trial counsel's improper representation constituted ineffectiveness. Appellant failed to satisfy his burden of developing the three-pronged analysis to demonstrate ineffectiveness. Specifically, Appellant referenced the appropriate standard, but failed to provide any meaningful analysis. In his supplemental amended petition, Appellant stated:
Applying the second prong of the Paolello test, [4] there is no reasonable basis to justify trial counsel's failure to perform as an effective advocate. With regard to the third prong of the Paolello test, as a result of trial counsel's ineffectiveness, [Appellant] suffered great prejudice. Although we cannot predict with certainty whether the outcome would have been different, Petitioner was prejudiced by the failure of counsel to be an effective advocate.
See Supplemental Amended Petition, 15. Appellant's analysis amounted to little more than a recitation of the appropriate standard of proof. See Commonwealth v. Steele, 961 A.2d 786, 797 (Pa. 2008) (finding a bald assertion of the lack of a reasonable basis and the fact of prejudice cannot satisfy Appellant's burden of establishing ineffectiveness). The court did not find that simply aggregating multiple claims somehow relieved the Appellant of his burden to demonstrate prejudice. The court therefore found that Appellant's claims were undeveloped and failed to demonstrate he is entitled to relief.

PCRA Court Opinion, 4/11/13, at 5–6.

We agree with the Commonwealth that Appellant improperly presents this claim by failing to develop the necessary three-prong showing to prove trial counsel's ineffectiveness, instead proffering mere examples of counsel's ill-preparedness. For example, Appellant baldly asserts that trial counsel failed to consult with him prior to trial, but he fails to develop the claim in any way. See Commonwealth v. B.D.G., 959 A.2d at 371 ("In an appellate brief, parties must provide an argument as to each question, which should include a discussion and citation of pertinent authorities."); Commonwealth v. Plante, 914 A.2d 916, 924 (Pa. Super. 2006) ("We have repeatedly held that failure to develop an argument with citation to, and analysis of, relevant authority waives the issue on review."); Pa.R.A.P. 2119(a) (the argument "shall" be followed by "citation of authorities" that are pertinent). Consequently, this issue is waived.

Similarly, Appellant maintains that counsel failed "to properly cross examine Commonwealth witness Ezequiel [Delgado]." Appellant's Brief at 21. There is no further explanation regarding this claim. For the reasons stated above, it is waived. Even if not waived, it lacks merit. See N.T., 4/24/08, at 70–82 (cross-examination of Ezequiel Delgado).

Appellant's third example of trial counsel's alleged ill-preparedness relates to counsel's alleged failure to object to a conspiracy count that Appellant alleges had never been charged. The Commonwealth attached to its motion to dismiss a marked-up copy of its bill of information that lists conspiracy on the third page. Appellant references notes of testimony from the preliminary hearing, that he suggests supports his claim, but he has failed to provide such transcript in the certified record. See Commonwealth v. Preston, 904 A.2d 1, 6–7 (Pa. Super. 2006) (stating that appellate court is limited to considering only the materials in the certified record when resolving an issue). Moreover, it is the responsibility of an appellant to ensure that the record certified on appeal is complete and contains all of the materials necessary for the reviewing court to perform its duty. Commonwealth v. Bongiorno, 905 A.2d 998, 1000 (Pa. Super. 2006) (en banc). Finally, the notes of testimony at trial support the existence of the charge. N.T., 4/24/08, at 3–4.

In his final allegation of ineffective assistance of trial counsel, Appellant posits that although counsel filed a post-sentence motion in which he raised issues of the sufficiency and weight of the evidence, trial counsel was ineffective in failing to raise the issues in the direct appeal. Appellant offers no argument beyond that claim.

The PCRA court stated the following:
Although raising this claim in his PCRA petition, Appellant failed to develop an argument to support his assertion that this Court would likely have granted relief. Rather, Appellant relies on the mere fact that trial counsel filed a post-sentence motion pertaining to these claims to demonstrate merit. The absence of an attempt to demonstrate prejudice was insufficient to satisfy his burden.
In any event, the trial court previously found challenges to [] both the sufficiency and weight of the evidence to be meritless. See Trial Court's Opinion, 12/18/08, 3-7. With respect to the sufficiency of the evidence, the court stated, in part:
The Commonwealth presented ample evidence that [Appellant] caused serious bodily injury under circumstances manifesting an extreme indifference to the value of human life.3 After pistol whipping the unsuspecting [victim] in the side of the head, [Appellant] shot him in his upper back as he was compliantly walking away. . . .
3 The permanent paralysis suffered by the [victim] constitutes serious bodily injury for purposes of 18 Pa.C.S. § 2702 (a) (1). See e.g. Commonwealth v. Phillips, 410 A.2d 832, 834 (Pa. Super. 1979) (gunshot resulting in inability to walk for a month is clearly within the ambit of a "protracted . . . impairment of . . . any bodily member or organ."). Therefore, the Commonwealth need only establish malice rather than the specific intent to cause such injury.
Shooting the [victim] near the spinal column under these circumstances clearly evidenced malice, an indifference as to [victim's] life. See Commonwealth v. Payne, 868 A.2d 1257, 1261 (Pa. Super. 2005) (indicating "if a gun discharges and the bullet strikes the victim, the intentional act of pointing the gun and aiming it at a vital part of the human body creates the presumption of malice."). Evidence was therefore adequate to support the finding of guilt beyond a reasonable doubt for aggravated assault.
Id. at 4-5. Additionally, addressing a challenge to the weight of the evidence, the court concluded:
The trial court believed the [victim's] testimony detailing the initial attack, and the manner in which he was walking down the stairs with his hands raised before he was shot. Defendant fails to establish, and the trial court does not view its credibility determinations as having led to a verdict so shocking to one's sense of justice as to have required a new trial.

Id. at 7.

The court's evaluation of these claims collaterally followed its previous treatment of them on direct appeal. Because these claims lacked merit, appellate counsel was not ineffective for not pursuing them on direct appeal.

PCRA Court Opinion, 4/11/13, at 6–7.

It is clear that Appellant has failed to show that there is a reasonable probability that the outcome of the proceedings would have been different but for counsel's inaction. As counsel will not be found to be ineffective for failing to raise a meritless claim, Washington, 927 A.2d at 603, we conclude the issue lacks merit.

The PCRA court, satisfied that there were no genuine issues concerning any material fact, properly exercised its discretion to dismiss the petition without a hearing, as no legitimate purpose would have been served by further proceedings. Paddy, 15 A.3d at 442.

Order affirmed.

Judgment Entered.

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