Opinion
1000 WDA 2023 J-A09037-24
08-27-2024
COMMONWEALTH OF PENNSYLVANIA v. JALEN DANDRE REYNOLDS Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
Appeal from the PCRA Order Entered August 2, 2023 In the Court of Common Pleas of Erie County Criminal Division at No(s): CP-25-CR-0002655-2017
BEFORE: DUBOW, J., KUNSELMAN, J., and NICHOLS, J.
MEMORANDUM
NICHOLS, J.
Appellant Jalen Dandre Reynolds appeals from the order denying his first Post Conviction Relief Act (PCRA) petition. Appellant raises multiple claims of ineffective assistance of trial counsel and appellate counsel. We affirm.
A previous panel of this Court summarized the facts of this case as follows:
On June 29, 2017, [Appellant], and two co-defendants, Taisha Santiago and [LaShonta] Dade, conspired to rob two individuals, David Tate and Rashaad Jones. During the robbery, [Appellant] shot and killed Tate and shot and severely injured Jones. . . .
Santiago set up a meeting with the victims, Tate and Jones, ostensibly to arrange a sexual encounter between Santiago, the two victims and [another] female. Santiago arranged for Tate and
Jones to pick her up at her house with the plan of taking her and [the other] female back to Jones' residence . . . .
In the meantime, Dade drove [Appellant] to Santiago's house where [Appellant] exited the vehicle and had a conversation with Santiago outside the residence. After [Appellant] re-entered the car, Dade drove to Jones' residence and parked outside while [Appellant] waited for Santiago's instructions via cell phone. Tate and Jones exited Jones' residence and drove away to pick up Santiago. After Tate and Jones left, [Appellant] received a communication from Santiago, exited Dade's parked vehicle and stationed himself outside Jones' residence. Dade remained inside the vehicle. Another assailant, David Dalton, arrived and positioned himself on Jones' front porch.
Shortly thereafter, Tate and Jones returned to Jones' residence with Santiago and exited Jones' vehicle. Jones walked up to his front porch where he encountered Dalton. A struggle between Jones and Dalton ensued. [Appellant,] who was waiting outside the residence, shot and killed Tate on the sidewalk. Jones was shot multiple times. Though Jones survived, he underwent multiple surgeries from the incident and remains symptomatic from his injuries.
The matter proceeded to trial, [at which co-defendant Dade testified on behalf of the Commonwealth, and] at the conclusion of which [the] jury found [Appellant] guilty of one count each of murder of the second degree and firearms not to be carried without a license, two counts of aggravated assault, four counts of REAP, and one count each criminal conspiracy (robbery), possessing instruments of crime, and discharge of a firearm into an occupied structure. On August 9, 2018, the trial court imposed an aggregate sentence of life imprisonment without the possibility of parole, followed by seven to fourteen years in prison.Commonwealth v. Reynolds, 1130 WDA 2020, 2021 WL 3673807, at *1 (Pa. Super. filed Aug. 19, 2021) (unpublished mem.) (citation omitted and formatting altered), appeal denied, 272 A.3d 950 (Pa. 2022).
We add that Alison M. Scarpitti, Esq. (trial counsel) represented Appellant at trial. Appellant filed timely post-sentence motions, which the trial court denied. Appellant then filed a timely notice of appeal. This Court dismissed that appeal because trial counsel failed to file an appellate brief on Appellant's behalf. See Order, 418 WDA 2019, 1/16/20.
On September 3, 2020, Appellant filed a timely pro se PCRA petition. The PCRA court reinstated Appellant's appellate rights nunc pro tunc and appointed Keith H. Clelland, Esq. (appellate counsel) to represent Appellant on September 28, 2020. See PCRA Ct. Mem. & Order, 9/28/20, at 3. On direct appeal, Appellant argued, among others, that the trial court erred by denying Appellant's motion in limine to exclude Jones' identification of Appellant as his assailant. See Reynolds, 2021 WL 3673807, at *2. A prior panel of this Court concluded that Appellant had waived his challenge to the admission of the identification because Appellant failed to develop his claim in his appellate brief with citations to the record and affirmed the judgment of sentence. See id. at *5. Our Supreme Court denied Appellant's petition for allowance of appeal on April 20, 2021.
On June 1, 2022, Appellant timely filed his first pro se PCRA petition, and the PCRA court appointed William J. Hathaway, Esq. as PCRA counsel. PCRA counsel filed an amended petition on Appellant's behalf. Therein, Appellant claimed that trial counsel was ineffective because she failed to file motions to suppress, failed to request that the trial court sever Appellant's trial from Taisha Santiago's, improperly stipulated to the authenticity of digital evidence extracted from cell phones at trial, and failed to object to a jury instruction. See Am. PCRA Pet., 11/15/22, at 3-10 (unpaginated). Appellant also argued that appellate counsel was ineffective for failing to adequately develop a claim on appeal, resulting in this Court deeming that issue to be waived. See id. at 10-12 (unpaginated).
A PCRA petition filed after an appellant's direct appeal rights have been reinstated nunc pro tunc is considered a first PCRA petition for timeliness purposes. See Commonwealth v. Turner, 73 A.3d 1283, 1286 (Pa. Super. 2013) (explaining "when a PCRA petitioner's direct appeal rights are reinstated nunc pro tunc in his first PCRA petition, a subsequent PCRA petition will be considered a first PCRA petition for timeliness purposes" (citations and footnote omitted)).
On July 11, 2023, the PCRA court issued a Pa.R.Crim.P. 907 notice of intent to dismiss Appellant's PCRA petition without a hearing (PCRA Ct. Rule 907 Notice). Appellant did not file a response. On August 2, 2023, the PCRA court dismissed Appellant's PCRA petition.
Appellant filed a timely notice of appeal and a court-ordered Pa.R.A.P. 1925(b) statement. The PCRA court issued a Rule 1925(a) opinion adopting its July 11, 2023 Rule 907 notice. See PCRA Ct. Op., 9/14/23, at 1-2.
On appeal, Appellant raises the following issues:
1. Whether the [PCRA court] committed legal error and abused its discretion in failing to grant PCRA relief in that [] Appellant was afforded ineffective assistance of trial counsel for failure to file a suppression motion as to the unconstitutional and extralegal traffic stop?
2. Whether the [PCRA court] committed legal error and abused its discretion in failing to grant PCRA relief in that [] Appellant was afforded ineffective assistance of counsel in failing to seek to suppress the identification of him by the victim, Rashad Jones, which was suspect given the suggestive and leading nature of the identification process engaged in by the police?
3. Whether the [PCRA court] committed legal error and abused its discretion in failing to grant PCRA relief in that [] Appellant was afforded ineffective assistance of counsel in that [trial] counsel failed to seek a severance of the trial from the co-defendant, Taisha Santiago?
4. Whether the [PCRA court] committed legal error and abused its discretion in failing to grant PCRA relief predicated on a finding that [trial] counsel erred and committed ineffective assistance of counsel in stipulating to the authenticity of the cellphone extraction reports, which were derived from the cellphones secured during the course of the extralegal stop and seizure pertaining to the traffic stop?
5. Whether the [PCRA court] committed legal error and abused its discretion in failing to grant PCRA relief in that [trial] counsel was ineffective in failing to object to the provision of an inapplicable and irrelevant jury instruction on flight or consciousness of guilt given the absence of any factual foundation for that instruction discernible in the trial record?
6. Whether the [PCRA court] committed legal error and abused its discretion in failing to grant PCRA relief related to the averment of ineffective assistance of counsel lying against appellate counsel predicated on the failure of appellate counsel to properly present, preserve and delineate the appellate claim relating to the trial court's adjudication of the motion in limine causing said claim to be deemed waived by the Superior Court?Appellant's Brief at 2-3 (formatting altered).
Suppression
In his first two claims, Appellant argues that trial counsel was ineffective for failing to file motions to suppress. Id. at 6-11. First, Appellant contends that trial counsel failed to file a motion to suppress evidence obtained during a traffic stop of Dade's vehicle while Appellant was a passenger. Id. at 7-10. Appellant claims that the police did not have either reasonable suspicion or probable cause to detain Appellant and Dade, impound Dade's vehicle, and search the vehicle. Id. at 8-10. Appellant observes that the police recovered two cell phones, a black sweatshirt, disposable gloves, and an identification card from the vehicle. Id. at 8-9. The police later extracted data from the cell phones including text messages implicating Appellant in the shootings. Id. Appellant further notes that several items from the vehicle were subjected to DNA testing. Id. at 9. Appellant asserts that all of this evidence was presented at trial. Id. Appellant argues that "[i]f put to the test by the filing of a suppression motion, the Commonwealth would have been compelled to establish some particularized articulable basis to find reasonable suspicion and/or probable cause to initiate, continue and expand the search of the vehicle occupants and the vehicle." Id. Appellant concludes that he "was patently and severely prejudiced by the failure of [trial] counsel to present and preserve a suppression challenge, which would have barred considerable evidence implicating [] Appellant in the instant case." Id. at 10.
Appellant does not specify in his brief whether this identification card belonged to him, Dade, or someone else.
Second, Appellant argues that his trial counsel was ineffective for failing to seek suppression of Jones' identification of Appellant as his assailant on the grounds that the identification was the result of an impermissibly suggestive process. Id. at 10-11. Specifically, Appellant contends that initially Jones could not identify his assailant and the only information Jones provided to the police was that the attacker was bigger than he was. Id. Appellant claims that Jones did not identify Appellant as his assailant until after Jones saw a local news report about Appellant Id. at 11. Appellant also argues that the police engaged in an improperly suggestive identification process by only showing a single photograph of Appellant to Jones. Id.
Appellant also argues that his trial counsel failed to move for the exclusion of Jones' identification of Appellant based on the contradictory statement of David Dalton. See Appellant's Brief at 11. However, Appellant did not include this claim of trial counsel's ineffectiveness in either his Rule 1925(b) statement or in the statement of questions involved in his appellate brief. Therefore, it is waived. See Pa.R.A.P. 1925(b)(4)(vii) (stating that "[i]ssues not included in the Statement and/or not raised in accordance with the provisions of this paragraph (b)(4) are waived"), 2116(a) (stating that "[n]o question will be considered unless it is stated in the statement of questions involved or is fairly suggested thereby").
In reviewing the denial of a PCRA petition, our standard of review
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. The PCRA court's credibility determinations, when supported by the record, are binding on this Court; however, we apply a de novo standard of review to the PCRA court's legal conclusions.Commonwealth v. Sandusky, 203 A.3d 1033, 1043 (Pa. Super. 2019) (citations omitted and formatting altered).
We presume that a defendant's counsel was effective. See Commonwealth v. Turetsky, 925 A.2d 876, 880 (Pa. Super. 2007). This Court has explained that
to establish a claim of ineffective assistance of counsel, a defendant 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. The burden is on the defendant 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.
We have explained that a claim has arguable merit where the factual averments, if accurate, could establish cause for relief. Whether the facts rise to the level of arguable merit is a legal determination.
The test for deciding whether counsel had a reasonable basis for his [or her] action or inaction is whether no competent counsel would have chosen that action or inaction, or, the alternative, not chosen, offered a significantly greater potential chance of success. Counsel's decisions will be considered reasonable if they effectuated his [or her] client's interests. We do not employ a hindsight analysis in comparing trial counsel's actions with other efforts he [or she] may have taken.
Prejudice is established if there is a reasonable probability that, but for counsel's errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.
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. Moreover, a failure to satisfy any prong of the ineffectiveness test requires rejection of the claim of ineffectiveness.Sandusky, 203 A.3d at 1043-44 (citations omitted and formatting altered); see also Commonwealth v. Fears, 86 A.3d 795, 804 (Pa. 2014) (reiterating that where a petitioner "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" (citations and quotation marks omitted)).
When claiming that counsel was ineffective for failing to file a suppression motion, "[t]he defendant must establish that there was no reasonable basis for not pursuing the suppression claim and that if the evidence had been suppressed, there is a reasonable probability the verdict would have been more favorable." Commonwealth v. Watley, 153 A.3d 1034, 1044 (Pa. Super. 2016) (citation omitted).
We note that an appellate brief must substantially comply with the briefing requirements set forth in the Pennsylvania Rules of Appellate Procedure. See Pa.R.A.P. 2114-2119 (explaining the specific requirements for each section of an appellate brief).
Further, this Court has explained:
When briefing the various issues that have been preserved, it is an appellant's duty to present arguments that are sufficiently developed for our review. The brief must support the claims with pertinent discussion, with references to the record and with citations to legal authorities. Pa.R.A.P. 2119(a), (b), (c).
Citations to authorities must articulate the principles for which they are cited. Pa.R.A.P. 2119(b). This Court will not act as counsel and will not develop arguments on behalf of an appellant. Moreover, when defects in a brief impede our ability to conduct meaningful appellate review, we may dismiss the appeal entirely or find certain issues to be waived. Pa.R.A.P. 2101.Commonwealth v. Hardy, 918 A.2d 766, 771 (Pa. Super. 2007) (some citations omitted).
Here, the PCRA court concluded that Appellant had not established either that trial counsel lacked a reasonable basis for failing to file a motion to suppress the evidence found in Dade's vehicle or that trial counsel's omission prejudiced Appellant. See PCRA Ct. Rule 907 Notice, 7/11/23, at 8. The PCRA court also concluded that Appellant's claim that trial counsel was ineffective for failing to move for the suppression of Jones' identification evidence lacked arguable merit and the admission of that evidence did not prejudice Appellant. See id. at 8-11.
In his brief, Appellant fails to adequately develop the prejudice prong of the ineffectiveness standard for his claim that trial counsel was ineffective for failing to seek suppression of the evidence recovered from Dade's vehicle. Specifically, Appellant equivocally argues that if trial counsel had filed a motion to suppress, the Commonwealth "would have been compelled to" demonstrate reasonable suspicion for the initial vehicle stop and probable cause for the subsequent search. See Appellant's Brief at 9-10. Further, Appellant has failed to explain why there is a reasonable probability that the exclusion of this evidence would have resulted in a more favorable verdict. See Watley, 153 A.3d at 1044. Therefore, Appellant has failed to establish prejudice. See Sandusky, 203 A.3d at 1044 (explaining that "[p]rejudice is established if there is a reasonable probability that, but for counsel's errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome" (citation omitted)). For these reasons, Appellant is not entitled to relief on this claim. See id. at 1043-44; see also Fears, 86 A.3d at 804 (holding that when a PCRA petitioner "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" (citations and quotation marks omitted)).
Next, Appellant only offers bald assertions that trial counsel was ineffective in failing to seek suppression of Jones' identification of Appellant and fails to cite any relevant authority in support of that claim. Therefore, because Appellant has failed to properly develop this claim for review, we conclude that this issue is waived. See Hardy, 918 A.2d at 771 (stating that an appellant's "brief must support the claims with pertinent discussion, with references to the record and with citations to legal authorities" and "[t]his Court will not act as counsel and will not develop arguments on behalf of an appellant" (citations omitted)). For these reasons Appellant is not entitled to relief on his first two claims.
Severance
In his third issue, Appellant argues that trial counsel was ineffective for failing to file a motion to sever the trials of Appellant and co-defendant Santiago because Appellant and Santiago had antagonistic defenses. Appellant's Brief at 11-13. Specifically, Appellant contends that Santiago attempted to elicit testimony from Dade about Appellant's inculpatory statements to Dade and that Appellant possessed the cell phone used to message Jones, Santiago sought to admit evidence of Appellant's unrelated criminal conduct, and, during closing arguments, Santiago's counsel emphasized the evidence against Appellant. Id. at 12-13. Also, Appellant claims that evidence from Santiago's cell phone and social media about her communications with Jones were only admissible against Santiago. Id. at 13. Appellant concludes that trial counsel could have eliminated the prejudice to Appellant caused by the joint trial by moving to sever Appellant and Santiago's trials. Id.
It is well settled that "the law favors a joint trial when criminal conspiracy is charged[.]" Commonwealth v. Housman, 986 A.2d 822, 835 (Pa. 2009) (citation omitted). Our Supreme Court has explained:
Where, . . . the crimes charged against each defendant arise out of the same facts and virtually all of the same evidence is applicable to both defendants, this Court, as well as the United States Supreme Court, have indicated a preference to encourage joint trials to conserve resources, promote judicial economy, and enhance fairness to the defendants:
It would impair both the efficiency and the fairness of the criminal justice system to require . . . that prosecutors bring separate proceedings, presenting the same evidence again and again, requiring victims and witnesses to repeat the inconvenience (and sometimes trauma) of testifying, and randomly favoring the last tried defendants who have the advantage of knowing the prosecution's case beforehand. Joint trials generally serve the interests of justice by avoiding inconsistent verdicts and enabling more accurate assessment of relative culpability.
Given this preference, the burden is on defendants to show a real potential for prejudice rather than mere speculation. Separate trials of co-defendants should be granted only where the defenses of each are antagonistic to the point where such individual differences are irreconcilable and a joint trial would result in prejudice.Commonwealth v. Rainey, 928 A.2d 215, 231-32 (Pa. 2007) (citations and quotations marks omitted).
In determining whether prejudice suffered by a defendant is sufficient to warrant severance, this Court has identified three factors:
(1) Whether the number of defendants or the complexity of the evidence as to the several defendants is such that the trier of fact probably will be unable to distinguish the evidence and apply the law intelligently as to the charges against each defendant; (2) Whether evidence not admissible against all the defendants probably will be considered against a defendant notwithstanding admonitory instructions; and (3) Whether there are antagonistic defenses.Commonwealth v. Brookins, 10 A.3d 1251, 1256 (Pa. Super. 2010) (citation omitted); see also Rainey, 928 A.2d at 232 (recognizing that although antagonistic defenses are a factor in determining prejudice, "the fact that defendants have conflicting versions of what took place, or the extent to which they participated in it, is a reason for rather than against a joint trial because the truth may be more easily determined if all are tried together" (citations and footnote omitted and formatting altered)); Commonwealth v. Lambert, 603 A.2d 568, 573 (Pa. 1992) (stating that "[m]ere fingerpointing alone-the effort to exculpate oneself by inculpating another-is insufficient to warrant a separate trial").
Here, the PCRA court explained that
the criminal charges against [Appellant] and Santiago arose from the same set of facts which led to the killing of David Tate and the shooting of Jones. Many of the same witnesses would have testified and the evidence was essentially the same. [Appellant] has failed to show the defenses of each were so antagonistic that the differences were irreconcilable. This claim must be dismissed.PCRA Ct. Rule 907 Notice, 7/11/23, at 11.
Based on our review of the record, we agree with the PCRA court's conclusions, which are supported by the record and free from legal error. See Sandusky, 203 A.3d at 1043. Specifically, we agree that because Appellant and Santiago were charged with conspiracy and the charges against them arose from the same facts, a joint trial was preferable. See Housman, 986 A.2d at 835; Rainey, 928 A.2d at 231-32. Additionally, Appellant has failed to establish his and Santiago's defenses were so antagonistic to each other that the differences were irreconcilable. As our Supreme Court has explained, conflicting versions of what occurred and "finger pointing" between co-defendants are not sufficient to warrant separate trials. See Rainey, 928 A.2d at 232; Lambert, 603 A.2d at 573. For these reasons, this ineffectiveness claim lacks arguable merit and Appellant is not entitled to relief on this claim. See Sandusky, 203 A.3d at 1043-44.
Stipulation to Cell Phone Evidence
In his fourth issue, Appellant argues that trial counsel was ineffective for stipulating to the authenticity of evidence extracted from the cell phones recovered from Dade's vehicle. Appellant's Brief at 13-14. Appellant contends that "[t]he only means to preclude this evidence from being admitted . . . was to pursue some form of challenge to the admissibility of this evidence through error or legal challenge arising from any failure to duly authenticate or lay a proper factual foundation through competent evidence and testimony." Id. at 14. Appellant claims that trial counsel was ineffective for stipulating to the authenticity of that evidence instead of "compelling the Commonwealth to go through the exacting process of authentication and laying a proper evidentiary foundation" for the admission of cell phone evidence. Id.
Here, the PCRA court concluded that this claim lacked arguable merit. See PCRA Ct. Rule 907 Notice, 7/11/23, at 11-12.
In his brief, Appellant fails to cite any authority in support of this ineffectiveness claim. Notably, Appellant does not discuss any of the Rules of Evidence governing authentication of evidence. This failure, by itself, is grounds for this Court to find waiver. See Hardy, 918 A.2d at 771. Further, Appellant's claim that trial counsel's alleged error relieved the Commonwealth of the requirement to lay an evidentiary foundation is merely a bald assertion of prejudice. Appellant has not explained why there is a reasonable probability that if trial counsel had not stipulated to this evidence, it would not have been admitted. See Sandusky, 203 A.3d at 1044. Because Appellant has failed to develop his argument for the arguable merit and prejudice prongs of the ineffectiveness standard, Appellant is not entitled to relief on this claim. See id. at 1043-44; see also Fears, 86 A.3d at 804.
Jury Instruction
In his fifth issue, Appellant argues that trial counsel was ineffective for failing to object to a jury instruction that flight can be considered as evidence of Appellant's consciousness of guilt. Appellant's Brief at 14-15. Specifically, Appellant contends that there was no evidence in the record indicating that he was aware that law enforcement was seeking him and that he fled and/or concealed himself. Id. at 15. Appellant claims that he "did not have the time nor did he display any intentions to form any plan of flight or concealment from the authorities." Id.
Here, the PCRA court concluded that the record belied Appellant's assertions in that he fled from Jones' residence after shooting and injuring Jones and killing Tate; therefore, this claim lacked arguable merit and Appellant failed to establish prejudice. See PCRA Ct. Rule 907 Notice, 7/11/23, at 12.
Further, in his brief, Appellant fails to discuss either the reasonable basis or the prejudice prongs of the ineffectiveness standard with respect to this claim; therefore, this claim is waived for lack of development. See Fears, 86 A.3d at 804; Hardy, 918 A.2d at 771.
Direct Appeal
In his final issue, Appellant argues that appellate counsel was ineffective because he submitted a defective appellate brief. Appellant's Brief at 15-18. Appellant notes that a prior panel of this Court found that Appellant had waived appellate review of his claim that the trial court erred by denying his motion in limine to exclude identification evidence because Appellant's appellate brief did not support his argument with citations to the record. Id. at 15-16. Appellant contends that if appellate counsel "had provided the requisite specific and developed argument on direct appeal including the requisite references to the trial record . . . it is probable that the Court would have concluded that the trial court erred" in admitting Jones' testimony identifying Appellant. Id. at 17. Appellant claims that Jones admitted at trial that he was not able to identify Appellant as one of his assailants prior to seeing media coverage of the shooting. Id. (citing N.T. Trial, 6/18/18, at 111-13).
"To establish Strickland/Pierce prejudice in the appellate representation context, the petitioner must show that there is a reasonable probability that the outcome of the direct appeal proceeding would have been different but for counsel's deficient performance." Commonwealth v. Blakeney, 108 A.3d 739, 750 (Pa. 2014) (per curiam).
Strickland v. Washington, 466 U.S. 668, 687 (1984); Commonwealth v. Pierce, 527 A.2d 973, 975-77 (Pa. 1987); see also Sandusky, 203 A.3d at 1043-44 (the same).
Here the PCRA court concluded that this claim lacked arguable merit and Appellant could not establish prejudice because there was ample evidence of Appellant's guilt. See PCRA Ct. Rule 907 Notice, 7/11/23, at 12.
In his brief, Appellant fails to cite any authority in support of this ineffectiveness claim. Appellant does not discuss any case law regarding overly suggestive identification practices or identifications that have been tainted by media coverage. Therefore, Appellant has waived this claim. See Fears, 86 A.3d at 804; Hardy, 918 A.2d at 771.
For these reasons, we conclude that Appellant is not entitled to relief and affirm the PCRA court's order.
Order affirmed. Jurisdiction relinquished.
Judge Dubow joins the memorandum.
Judge Kunselman concurs in the result.
Judgment Entered.