J-S36033-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

JAMES CALVIN HAMLETT, JR. 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 177 WDA 2022

Appeal from the PCRA Order Entered January 12, 2022

In the Court of Common Pleas of Allegheny County 

Criminal Division at No(s): CP-02-CR-0014824-2015

BEFORE: STABILE, J., KING, J., and COLINS, J.

MEMORANDUM BY COLINS, J.: FILED: FEBRUARY 7, 2023

James Calvin Hamlett, Jr., appeals from the order dismissing, without a 

hearing, his first and timely petition filed pursuant to the Post Conviction Relief 

Act (PCRA). See 42 Pa.C.S.A. §§ 9541-9546. On appeal, Hamlett contends 

that his trial counsel engaged in two discrete instances of ineffective 

assistance of counsel. Thereafter, Hamlett asserts, as a discovery claim, that 

the PCRA court erred by not ordering the Commonwealth to produce his cell 

phone, which was, and continues to be, apparently held by law enforcement.

As it allegedly contains GPS-tracking information, possibly leading to 

exculpatory evidence, Hamlett seeks this cell phone for inspection and/or 

forensic examination. After a thorough review of the record, we find no validity 

to any of Hamlett’s averments and affirm.

____________________________________________

 Retired Senior Judge assigned to the Superior Court.
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By way of background, Hamlett,

who was sixty-one years old at the time of the crimes, met [the 

victim] when he gave her a ride in his jitney[, an unlicensed taxi]. 

Over time, [Hamlett] became friends with [the victim] and her 

family. On September 16, 2015, [Hamlett] took [the victim], then 

thirteen years old, to a Pittsburgh Pirates game. After the game, 

[Hamlett] took [the victim] to a restaurant, and, at approximately 

midnight, the two left for [the victim’s] home.

Instead of driving [the victim] home, [Hamlett] drove to 

several neighborhoods while the two chatted. At some point, [the 

victim] fell asleep, and woke up after 2:00 a.m. [The victim] 

panicked and asked if her mom knew where she was. [Hamlett] 

reassured [the victim] that he had spoken to her mother, and was 

taking [the victim] to the home of [Hamlett’s] daughter. 

Eventually, [Hamlett] declared that he had changed his mind and 

that he would take [the victim] home.

[Hamlett] drove back to [the victim’s] neighborhood, but 

took the vehicle to an alley with woods on one side and an 

abandoned house on the other. [The victim] was scared and 

opened the door to leave, but [Hamlett] promised that he would 

take her home. [The victim] closed the door, and [Hamlett] 

grabbed her jacket, causing [the victim] to try and leave through 

the passenger door. [The victim] screamed for help, but [Hamlett] 

grabbed her hooded sweatshirt and hair and told her to “shut the 

f*** up or I will knock you the f*** out.” N.T. Vol. I, 6/24-28/16, 

at 53. [Hamlett] allowed her to go outside to use the bathroom, 

and dragged her back to the vehicle in a headlock. At some point 

during these events, [Hamlett] placed something sharp against 

her neck which caused pain.

Back inside the vehicle, [Hamlett] told [the victim] to take 

off her clothes. [Hamlett] inserted his finger into her vagina and 

kissed her breasts. He pulled his pants down and appeared to 

pleasure himself. Eventually, [Hamlett] told [the victim] that he 

loved her too much and could not “do this.” He told her to put her 

clothes on, then drove her home. 

[The victim] immediately told her mother, who called the 

police. [The victim] went to a hospital, where a rape kit was 

performed. Photographs were taken, one of which depicted a fresh 
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mark where [Hamlett] had pushed the object into her neck. 

Due to the foregoing, [Hamlett] was charged with unlawful 

restraint of a minor, two counts of aggravated indecent assault, 

simple assault, indecent assault, attempted rape, terroristic 

threats, and kidnapping of a minor. The jury convicted [Hamlett] 

at all counts. [Hamlett] was thereafter sentenced to three 

mandatory minimum sentences of life imprisonment, which

applied due to his two prior convictions for sexual crimes.

Commonwealth v. Hamlett, 1172 WDA 2016 at *1-3 (Pa. Super., filed Sept. 

11, 2018) (unpublished memorandum) (some alterations).

In his direct appeal before this Court, Hamlett challenged the sufficiency 

of the evidence related to one of his aggravated indecent assault convictions, 

see 18 Pa.C.S.A. § 3125(a)(2), as well as the sufficiency of evidence utilized 

against him in proving unlawful restraint. Hamlett also contested the 

admission, at trial, of the victim’s forensic interview as a prior-consistent 

statement and, too, the legality of his three mandatory life sentences. 

We found that, because the Commonwealth did not prove beyond a 

reasonable doubt that the victim was less than thirteen years of age at the 

time of the assault, the evidence was insufficient to convict him of a firstdegree graded felony.

1 However, we also determined that the Commonwealth 

had presented sufficient evidence establishing Hamlett’s guilt, beyond a 

reasonable doubt, as to the lesser-included second-degree felony charge of 

aggravated indecent assault, which was not dependent on that thirteen-years-

____________________________________________

1 See 18 Pa.C.S.A. § 3125(b).
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of-age threshold. After making these findings, we remanded the case for

resentencing solely at that aforementioned aggravated indecent assault

conviction. In all other respects, we affirmed Hamlett’s judgment of sentence, 

finding no validity to his other claims. 

Following a granted petition for allowance of appeal that was filed with

our Supreme Court, wherein that Court ultimately affirmed our disposition of 

his direct appeal, Hamlett was resentenced. Specifically, Hamlett received 

three concurrent life sentences as well as two concurrent ten-year terms of 

probation, to be served consecutive to his life sentences. Hamlett did not file 

a post-sentence motion or notice of appeal after resentencing. 

Hamlett filed the present PCRA petition within one year of his 

resentencing. Ultimately, his petition was dismissed without a hearing. 

Hamlett timely appealed from this dismissal, and the relevant parties have 

complied with their obligations under Pennsylvania Rule of Appellate 

Procedure 1925. As such, this matter is ripe for review.

On appeal, Hamlett asks:

1. Were his post-conviction filings sufficient as to the issue of pretrial preparation to demonstrate that his ineffective assistance 

of counsel claim had arguable merit?

2. Were his post-conviction filings sufficient as to the issue of a 

specific hearsay objection to demonstrate that his ineffective 

assistance of counsel claim had arguable merit?

3. Did the PCRA court err by not ordering the Commonwealth to 

produce his cell phone for inspection and/or forensic 

examination?
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See Appellant’s Brief, at 4.2

Preliminarily, we note our well-settled standard of review in an appeal 

stemming from a PCRA petition’s dismissal: “[w]e review a ruling by the PCRA 

court to determine whether it is supported by the record and is free of legal 

error. Our standard of review of a PCRA court's legal conclusions is de novo.” 

Commonwealth v. Cousar, 154 A.3d 287, 296 (Pa. 2017) (citations 

omitted). “The PCRA court's findings will not be disturbed unless there is no 

support for the findings in the certified record.” Commonwealth v. Bishop, 

266 A.3d 56, 62 (Pa. Super. 2021) (citation omitted).

As Hamlett’s first two issues aver that he received ineffective assistance 

of counsel, we employ the following precepts:

We presume counsel's effectiveness, and an appellant bears the 

burden of proving otherwise. To establish ineffectiveness of 

counsel, a PCRA petitioner must plead and prove: [(1)] his 

underlying legal claim has arguable merit; [(2)] counsel's actions 

lacked any reasonable basis; and [(3)] counsel's actions 

prejudiced him. Failure to satisfy any prong of the ineffectiveness 

test requires dismissal of the claim. Arguable merit exists when 

the factual statements are accurate and could establish cause for 

relief. Whether the facts rise to the level of arguable merit is a 

legal determination.

____________________________________________

2 Hamlett’s statement of questions involved does not separate, nor specifically 

identify, issues one and two, but merely asks whether sufficient facts were 

pled to show arguable merit as to his undefined ineffective assistance of 

counsel contention. See Appellant’s Brief, at 4. Such a description is likely 

violative of Pennsylvania Rule of Appellate Procedure 2116(a), which requires 

a concise statement “expressed in the terms and circumstances of the case[.]” 

Pa.R.A.P. 2116(a). However, because the headings and argument contained 

later in his brief discretely identify his ineffective assistance challenges, we 

will overlook this infirmity as “fairly suggested” by the overarching question

that was originally posed. Id.
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Commonwealth v. Urwin, 219 A.3d 167, 172 (Pa. Super. 2019) (internal 

citations and quotation marks omitted) (brackets and emphasis added). As to 

what constitutes prejudice, our Supreme Court has stated: “a defendant 

raising a claim of ineffective assistance of counsel is required to show actual 

prejudice; that is, that counsel’s ineffectiveness was of such magnitude that 

it could have reasonably had an adverse effect on the outcome of the 

proceedings.” Commonwealth v. Spotz, 84 A.3d 294, 315 (Pa. 2014) 

(citations, brackets, and internal quotation marks omitted). 

Hamlett’s first ineffective assistance claim asserts that trial counsel 

never prepared him to testify at trial, which is bolstered through the inclusion 

of an in-text picture from trial counsel’s file, wherein “prep Hamlett 

testimony,” contained within a checklist of other actionable items, is not 

crossed off. Appellant’s Brief, at 18-19 (all other enumerations in that checklist 

were crossed off). Hamlett concedes, however, that there is “no reported case 

where there’s been a determination that counsel rendered ineffective 

assistance for failing to prepare their client to testify[.]” Id., at 19; but see 

Commonwealth v. Drass, 718 A.2d 816, 819 (Pa. Super. 1998) (dismissing 

an inadequate preparation claim, within the context of ineffective assistance, 

on prejudice grounds). 

Despite this acknowledgement, Hamlett believes he presented factual 

averments within his PCRA petition that could establish bases for relief, 

specifically illuminating that “(1) Hamlett corroborated the Commonwealth’s 
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evidence; (2) Hamlett affirmed consciousness of guilt; and (3) Hamlett 

focused attention to imagery of ‘little people’ frequenting the backseat of his 

car in a desperate attempt to normalize the fact of the complainant being in 

the backseat–the alleged place of the assault.” Appellant’s Brief, at 20 (record 

citations and emphases omitted). Hamlett contends that “testimony 

preparation would’ve gone a long way to keep [himself] from digging a deeper 

hole[.]” Id. 

We note that Hamlett’s three examples, listed above, are nothing but

bald and editorialized assertions as to the context of his testimony at trial. In 

his brief, Hamlett, without elaboration or citation to analogous authority,

merely cites to his PCRA petition. It strains credulity that Hamlett’s singular 

sentence dedicated to his apparently deficient testimony is somehow selfproving of prejudice. While, expanding further, the PCRA petition contains at 

least two arguably relevant record citations, see Petition for Post-Conviction 

Relief, 10/17/21, at 12-13, there is still very little development of the ultimate 

points he was tasked with demonstrating, namely prejudice and arguable 

merit. Based on these deficiencies, this ineffective assistance claim could be 

waived. See, e.g., Pa.R.A.P. 2119(a); Commonwealth v. Hardy, 918 A.2d 

766, 771 (Pa. Super. 2007) (requiring an appellant to present sufficiently 

developed arguments, which, too, contain citations to the record and legal 

authorities. If this Court is impeded from conducting meaningful review, 

certain issues may be waived). However, given our conclusion that Hamlett 
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has failed to demonstrate arguable merit to his ineffective assistance 

assertion, we decline to find waiver.

Hamlett fails to discuss the import of the colloquy he gave at trial. That 

colloquy expressly refutes any notion that he did not have sufficient time to 

consult with trial counsel about his rights and ability to provide testimony:

THE COURT: You have met with [counsel] on many occasions, you 

have had the opportunity to ask him questions and discuss with 

him your rights as a [d]efendant in a criminal case, the discovery 

and evidence in this case and the charges that you are facing, the

statutory maximum, all of that; is that correct?

[HAMLETT]: Yes.

THE COURT: And you have also discussed with him your trial 

strategy; is that correct?

[HAMLETT]: Yes.

THE COURT: And he has given you his advice regarding all of these 

matters and you have considered that advice; is that true?

[HAMLETT]: Yes.

THE COURT: Has he discussed with you your right as a 

[d]efendant to remain silent?

[HAMLETT]: Yes.

THE COURT: And you understand that as a [d]efendant the burden 

of proof is on the Commonwealth and you need do nothing. You 

cannot be compelled to testify and you do not have to present a 

defense or testify?

[HAMLETT]: Yes.

THE COURT: You have also discussed with him your absolute right 

to testify if you choose to do so?

[HAMLETT]: Yes.
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THE COURT: And you understood that if you testify that it would 

be under oath and subject to cross-examination as the other 

witnesses have?

[HAMLETT]: Yes.

THE COURT: With regard to your trial strategy in this case, you 

have ample opportunity to discuss that with [counsel] as well and 

he has given you his advice with regard to whether or not he 

believes that you should present a defense or testify; is that 

correct?

[HAMLETT]: Yes.

THE COURT: And you have considered all of that?

[HAMLETT]: Yes.

N.T., 6/24-28/2016, at 154-56. After Hamlett then proceeded to speak with

counsel off the record, the colloquy continued:

THE COURT: ... Hamlett, you have had occasion to talk with 

[counsel] before just now. You have spoken with him several 

times regarding this issue; is that true?

[HAMLETT]: Yes.

THE COURT: And so your last minute discussion with him is just a 

final confirmation of your thought process, but it is not the only 

opportunity that you have had to discuss whether or not you wish 

to testify with your attorney; is that true?

[Hamlett]: Yes. We have talked about it a bunch of times.

THE COURT: So this morning’s decision is not one that you are 

making spur of the moment but one that you have actually 

engaged in long discussions and thoughts over a period of time, 

is that true?

[HAMLETT]: Yes.

THE COURT: And what decision have you made?
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[HAMLETT]: I am going to testify.

THE COURT: You do intend to testify?

[HAMLETT]: Yes.

THE COURT: And you have made this decision having had a full 

opportunity to discuss it with [counsel] and considering his advice, 

but it is your decision and not his; is that true?

[HAMLETT]: Yes.

Id., at 156-57. A few moments later, Hamlett stated on the record that he 

was satisfied with “the services” that his counsel had provided to him and that 

all decisions he was making were through his own volition and after full 

consultation with counsel. Id., at 158-59.

Based on the contents of the colloquy, wherein Hamlett repeatedly 

indicated that he was fully apprised of the dynamics of testifying on his own 

behalf, we are unable to see how his underlying claim has any merit, as any 

departure would be a contradiction of his own words. Moreover, Hamlett fails 

to discuss this colloquy in his brief and has provided no compelling basis to 

deviate from his express satisfaction with his counsel as well as his statements 

demonstrating his complete knowledge of what it would specifically mean to 

testify. In the absence of any reason to deviate from what he stated before 

the court at trial, we find no merit to his ineffective assistance of counsel 

argument in this domain. 

In his second ineffective assistance claim, Hamlett takes issue with one 

of the questions asked by the Commonwealth during his cross-examination, 
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as it “put into the minds of the jury an unsubstantiated fact that Hamlett’s 

wife was surprised of Hamlett’s going to the Pirates game with the [victim].” 

Appellant’s Brief, at 21-22 (citing PCRA petition). Hamlett believes that the 

question implied he was conniving and had improper motives. See id., at 22.

The question, replicated in full: “[s]o if your wife had told the police that 

she was surprised that you had gone to the game with [the victim] would you 

be surprised by that?” N.T., 6/24-28/2016, at 227 (coming immediately after 

being asked and responding “yes” to the question of whether Hamlett told his 

wife that he was going to the baseball game with the victim). When Hamlett 

indicated that he would be surprised by his wife’s statement, this latter, 

leading question that was allegedly hearsay, attacked his character for 

truthfulness, i.e., showing that he had bad character. See Appellant’s Brief, 

at 23 (citing PCRA petition).

Other than providing one citation to authority, which vaguely discusses 

the relevance of character evidence, see id., at 24, it is unclear how Hamlett 

concludes that this previously identified question “was more than just a 

singular, errant admission of hearsay. This was a leading question that painted 

[him] in an unfair light.” Id.

3 Furthermore, Hamlett does not provide any clear 

indicia that there was, in fact, hearsay admitted into the record, therefore 

____________________________________________

3 Hamlett’s argument confusingly blends hearsay concerns with problems 

associated with the admission of character evidence without clearly

distinguishing between the two subjects.
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failing to demonstrate merit to his underlying claim. 

Hearsay is commonly understood to be an out-of-court statement 

offered by a party “to prove the truth of the matter asserted in the statement.” 

Pa.R.E. 801(c). Hearsay may be admissible if such a statement is made 

pursuant to one of its exceptions. See Pa.R.E. 802. Hamlett has utterly failed 

to show both what the out-of-court statement, in fact, is and, too, that such 

a statement was being used to demonstrate the truth of the matter it asserted.

Without any clear indication that counsel was required to object and that such 

an objection would have likely been meritorious, there is no validity to 

Hamlett’s claim that he was provided with ineffective assistance of counsel. 

To the extent Hamlett argues that the Commonwealth’s question improperly 

delved into issues related to character evidence, Hamlett does not provide any 

credible proof that the very nature of this singular complained-of question, 

when faced with the overwhelming amount of evidence employed against him 

at trial, reasonably had an adverse effect on the outcome of proceedings. 

Other than providing an undeveloped argument that this question highlighted 

Hamlett’s character unfairly, we are unable to discern any clear existence, or 

even arguable existence, of prejudice to the extent necessary that would be 

capable of providing him with relief under the PCRA. 

In his final issue, Hamlett believes the PCRA court should have granted 

his discovery request related to his cell phone, which would have then been 

used for forensic examination purposes that could have served to discredit the 
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victim’s testimony. See Appellant’s Brief, at 24-25.4 Specifically, Hamlett 

maintains that the cell phone’s GPS data would have corroborated his route 

of travel on the night of the alleged incident between him and the victim. See 

id., at 25. Hamlett would have then been able to advance an ineffective 

assistance of counsel argument against his trial counsel for failing to 

adequately investigate the cell phone and its potentially exculpatory data. See 

id. 

In his petition, Hamlett moved “for discovery to advance his claim as it 

pertains to lack of investigation surrounding his cell phone. That cell phone is, 

and has been, in the sole possession of the Commonwealth. It has never been 

requested nor turned over to the defense. Hamlett avers it’ll contain 

exculpatory evidence that’ll tend to demonstrate his innocence.” Petition for 

Post-Conviction Relief, dated 10/17/21, at 19. 

Our Rules of Criminal Procedure establish that “no discovery shall be 

permitted at any stage of the proceedings, except upon leave of court after a 

showing of exceptional circumstances.” Pa.R.Crim.P. 902(E)(1). “The PCRA 

____________________________________________

4 The PCRA court found that Hamlett had waived this issue, believing that his 

PCRA petition singularly asserted that his trial counsel had erred by not 

seeking his cell phone prior to or at trial and that there was no indication 

before the PCRA court that he was, now, making a discovery-based request. 

See Trial Court Opinion, 4/20/22, at 5. As the Commonwealth points out, 

Hamlett’s “request for discovery in the conclusion paragraph of his PCRA 

petition is not a [m]otion for [d]iscovery that placed a request before the 

court.” Appellee’s Brief, at 27. Given our ultimate disposition, we need not 

examine whether, in fact, Hamlett filed an adequate discovery motion. 
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and the criminal rules do not define the term ‘exceptional circumstances.’ 

Rather, it is for the trial court, in its discretion, to determine whether a case 

is exceptional and discovery is therefore warranted.” Commonwealth v.

Frey, 41 A.3d 605, 611 (Pa. Super. 2012) (citation omitted). Although “mere 

speculation that exculpatory evidence might exist does not constitute an 

exceptional circumstance,” see id., at 612, Hamlett claims that his phone 

possessed GPS capabilities that would have tended to show his innocence. 

See Appellant’s Brief, at 26-27.

While is appears true that, given the PCRA court’s finding of waiver, it 

“didn’t consider, or weigh ... the [discovery] request in the first instance,” 

Appellant’s Brief, at 27, Hamlett has (1) not shown that remand is necessary

or required; and (2) failed to demonstrate the “extraordinary” nature of his 

request. 

As to the latter issue, Hamlett has not shown that he does not have 

access to his own GPS data or cannot pursue the same without having to rely 

upon the Commonwealth. Moreover, other than stating in passing that such 

data would have corroborated his testimony, Hamlett has not proven that this 

alleged corroboration would have been materially helpful, if not potentially 

exculpating, so as to establish those required exceptional circumstances.

Therefore, we are left with what appears to be a speculative claim, which, 

pursuant to existing precedent, does not create a condition necessitating 

discovery.
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Distilled down, Hamlett concludes that cellular GPS data, if possibly 

beneficial or corroborative of travel-related testimony, inherently constitutes 

an exceptional circumstance that can be sought, via discovery, during PCRA 

proceedings. Much like other places in his brief, however, Hamlett has failed 

to show, with any kind of authority, why a situation such as his constitutes an 

exceptional circumstance demanding further discovery. Furthermore, even 

excepting his lack of included authority, other than vaguely discussing his 

travel in conjunction with his testimony, Hamlett has not revealed why the cell 

phone data would clearly tend to prove his innocence. In the absence of any 

definite showing that exceptional circumstances exist, we find no validity to 

his claim that discovery should have been granted.

With all three of Hamlett’s issues being unmeritorious, we affirm the 

lower court’s dismissal of his PCRA petition.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 2/7/2023