J. A30042/17

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA :

:

IN THE SUPERIOR COURT OF

PENNSYLVANIA

v. :

:

KEVIN LAWRENCE AUSTIN, II, : No. 1625 WDA 2016

:

 Appellant :

Appeal from the PCRA Order, September 26, 2016,

in the Court of Common Pleas of Clarion County

Criminal Division at No. CP-16-CR-0000125-2013

BEFORE: BOWES, J., STABILE, J., AND FORD ELLIOTT, P.J.E.

MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED JANUARY 18, 2018

Kevin Lawrence Austin, II, appeals pro se from the September 26, 

2016 order dismissing his petition filed pursuant to the Post Conviction Relief 

Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546, without a hearing. After careful 

review, we affirm.

The relevant facts of this case were set forth by a prior panel of this 

court on direct appeal and need not be reiterated here. See 

Commonwealth v. Austin, 122 A.3d 1122 (Pa.Super. 2015) (unpublished 

memorandum at *1, citing trial court opinion, 9/8/14 at 1-2), appeal 

denied, 130 A.3d 1285 (Pa. 2015). In sum, appellant was charged with 

attempted criminal homicide and related offenses in connection with his 

involvement in a drive-by shooting that resulted in serious injury to one of 

the victims. On December 11, 2013, a jury found appellant guilty of two 
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counts of aggravated assault, four counts of recklessly endangering another 

person, and one count each of simple assault, carrying a firearm without a 

license, and persons not to possess a firearm.1 On February 26, 2014, the 

trial court sentenced appellant to an aggregate term of 14 to 28 years’ 

imprisonment.2 On June 3, 2015, a panel of this court affirmed appellant’s 

judgment of sentence, and our supreme court denied his petition for 

allowance of appeal on December 8, 2015. See id.3 Appellant did not file a 

petition for writ of certiorari with the United States Supreme Court.

On May 18, 2016, appellant filed a timely pro se PCRA petition and 

Sara J. Seidle-Patton, Esq. (hereinafter, “PCRA counsel”), was appointed to 

represent him on May 24, 2016. On August 24, 2016, PCRA counsel filed a 

no-merit letter and request to withdraw in accordance with Commonwealth 

v. Turner, 544 A.2d 927 (Pa. 1988), and Commonwealth v. Finley, 550 

A.2d 213 (Pa.Super. 1988) (en banc). On August 29, 2016, the PCRA court 

provided appellant with notice of its intention to dismiss his petition without 

a hearing, pursuant to Pa.R.Crim.P. 907(1). Appellant did not respond to 

the PCRA court’s Rule 907 notice. That same day, the PCRA court granted 

PCRA counsel permission to withdraw. 

 

1 18 Pa.C.S.A. §§ 2702(a)(1) and (a)(4), 2705, 2701(a)(2), 6106, and

6105.1, respectively.

2 Appellant was represented at his jury trial and sentencing by Michael E. 

Waltman, Esq. (hereinafter, “trial counsel”).

3 Appellant was represented on direct appeal by Stanley T. Booker, Esq.

(hereinafter, “direct appeal counsel”).
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On September 26, 2016, the PCRA court formally dismissed appellant’s 

petition without a hearing. This timely pro se appeal followed on October 

21, 2016. On October 24, 2016, the PCRA court ordered appellant to file a 

concise statement of errors complained of on appeal, in accordance with 

Pa.R.A.P. 1925(b), within 21 days. Appellant filed his pro se Rule 1925(b) 

statement on November 18, 2016, four days past the deadline. Thereafter, 

on January 13, 2017, the PCRA court filed a two-page Rule 1925(a) opinion 

indicating that appellant’s appeal should be dismissed. (See PCRA court 

opinion, 1/13/17 at 1-2.)

Preliminarily, we must address whether appellant’s untimely 

Rule 1925(b) statement can be excused by the prisoner mailbox rule. Under 

the prisoner mailbox rule, “a pro se prisoner’s document is deemed filed on 

the date he delivers it to prison authorities for mailing.” Commonwealth v. 

Chambers, 35 A.3d 34, 38 (Pa.Super. 2011) (citation omitted), appeal 

denied, 46 A.3d 715 (Pa. 2012). Generally, “any reasonably verifiable 

evidence of the date that the prisoner deposits” the document with prison 

authorities is acceptable to satisfy this rule, including a certificate of mailing, 

cash slip from prison authorities, or evidence of internal operating 

procedures of the prison mail system. See Commonwealth v. Jones, 700 

A.2d 423, 426 (Pa. 1997).

Here, appellant’s Rule 1925(b) statement was due on November 14, 

2016, 21 days after entry of the PCRA court’s October 24, 2016 order. The 
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clerk of courts received appellant’s Rule 1925(b) statement, on November 

18, 2016, but the record does not contain a certificate of mailing indicating 

when it was deposited with prison authorities. Nonetheless, we conclude 

that appellant’s Rule 1925(b) statement, which was dated November 13, 

2016, presumably would have been deposited with prison authorities or 

placed in the prison mailbox by the following day, making it timely filed. 

Accordingly, we deem appellant’s Rule 1925(b) to be timely. 

Appellant raises the following seven issues for our review:

I. WHETHER [THE PCRA] COURT ERRED AS A 

MATTER OF LAW IN DETERMINING THAT 

APPELLANT WAIVED HIS CLAIM [THAT] THE 

PROSECUTOR ENGAGED IN MISCONDUCT IN 

FAILING TO PROVIDE EXCULPATORY 

EVIDENCE IN THE FORM OF MALCOLM 

HAILSTOCK, WHO ADMITTED HIS BRINGING 

THE WEAPON IN QUESTION TO THE CRIME 

SCENE OF THE SHOOTING?

II. WHETHER [THE PCRA] COURT ERRED AS A 

MATTER OF LAW IN REFUSING TO GRANT 

APPELLANT RELIEF AND/OR OTHERWISE 

HOLDING EVIDENTIARY HEARING ON 

APPELLANT’S CLAIM OF BEING DENIED 

EFFECTIVE ASSISTANCE OF COUNSEL WHERE 

[TRIAL COUNSEL] ERRONEOUSLY ADVISED 

HIM TO REJECT TWO PLEA OFFERS BY THE 

COMMONWEALTH?

III. WHETHER [THE PCRA] COURT ERRED IN 

ALLOWING [PCRA COUNSEL] TO FILE 

NO-MERIT LETTER AND IN GRANTING THE 

SAME AS TO THE ISSUE OF TRIAL COUNSEL’S 

[] FAILING TO INTERVIEW, INVESTIGATE OR 

PRESENT TESTIMONY OF KIARONNA LITES TO 

IMPEACH THE [COMMONWEALTH’S] 
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ASSERTION OF FACTS INCULPATING 

APPELLANT AT TRIAL?

IV. WHETHER [THE PCRA] COURT ERRED IN 

ALLOWING [PCRA COUNSEL] TO FILE A 

NO-MERIT LEITER AND IN GRANTING THE 

SAME AS TO THE ISSUE OF [TRIAL 

COUNSEL’S] FAILURE TO CHALLENGE JUROR 

#37 FOR CAUSE?

V. WHETHER [THE PCRA] COURT ERRED AS A 

MATTER OF LAW IN GRANTING [PCRA 

COUNSEL’S] NO[-]MERIT LETTER DISMISSING 

THE ISSUE OF [TRIAL COUNSEL’S] FAILURE TO 

CHALLENGE THE ARRAY OF POTENTIAL 

JURORS AFTER JUROR #73 MADE A CLEARLY 

AUDIBLE STATEMENT, “HE’S GUILTY, HE’S 

GUILTY,” IN FRONT OF ALL PROSPECTIVE 

JURORS DURING SELECTION, TAINTING ALL 

PROSPECTIVE JURORS APPELLANT WAS TO 

SELECT FROM FOR HIS JURY TRIAL?

VI. WHETHER [THE PCRA] COURT ERRED IN 

ALLOWING [PCRA COUNSEL] TO FILE A 

NO-MERIT LETTER AND ADOPTING THE SAME 

IN FAILING TO CONDUCT HEARING ON THE 

CLAIM OF TRIAL COURT’S DENIAL OF [TRIAL 

COUNSEL’S] CHALLENGE TO THE LACK OF 

AFRICAN-AMERICANS COMPRISING THE JURY 

PANEL, AND, IN [DIRECT APPEAL COUNSEL’S]

FAILURE TO RAISE THIS CLAIM ON DIRECT 

APPEAL?

VII. WHETHER. [THE PCRA] COURT ERRED AS A 

MATTER OF LAW IN ADOPTING [PCRA 

COUNSEL’S] NO-MERIT LETTER AND HOLDING 

THAT [DIRECT APPEAL COUNSEL] WAS NOT 

INEFFECTIVE AT [THE] DIRECT APPELLATE 

STAGE IN FAILING TO RAISE ISSUES ONE, 

FOUR, FIVE AND SIX IN THE HEREIN BRIEF, 

ASSERTING THESE CLAIMS LACKED MERIT?
J. A30042/17

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Appellant’s brief at iv-iii.

4

Proper appellate review of a PCRA court’s dismissal of a PCRA petition 

is limited to the examination of “whether the PCRA court’s determination is 

supported by the record and free of legal error.” Commonwealth v. Miller, 

102 A.3d 988, 992 (Pa.Super. 2014) (citation omitted). “The PCRA court’s 

findings will not be disturbed unless there is no support for the findings in 

the certified record.” Commonwealth v. Lawson, 90 A.3d 1, 4 (Pa.Super. 

2014) (citations omitted). “This Court grants great deference to the findings 

of the PCRA court, and we will not disturb those findings merely because the 

record could support a contrary holding.” Commonwealth v. Hickman, 

799 A.2d 136, 140 (Pa.Super. 2002) (citation omitted). In order to be 

eligible for PCRA relief, a defendant must plead and prove by a 

preponderance of the evidence that his conviction or sentence arose from 

one or more of the errors listed at 42 Pa.C.S.A. § 9543(a)(2). Further, 

these issues must be neither previously litigated nor waived. 42 Pa.C.S.A. 

§ 9543(a)(3).

Where the PCRA court has dismissed a petitioner’s petition without an 

evidentiary hearing, as was the case here, we review the PCRA court’s 

decision for an abuse of discretion. See Commonwealth v. Roney, 79 

 

4 We note that the page numbers corresponding to appellant’s “Statement of 

Questions Involved” in his pro se appellate brief appear in descending 

order. Additionally, to the extent some of appellant’s issues are interrelated, 

we will address them simultaneously.
J. A30042/17

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A.3d 595, 604 (Pa. 2013), cert. denied, 135 S.Ct. 56 (2014) (citation 

omitted). Moreover,

the right to an evidentiary hearing on a 

post-conviction petition is not absolute. It is within 

the PCRA court’s discretion to decline to hold a 

hearing if the petitioner’s claim is patently frivolous 

and has no support either in the record or other 

evidence. It is the responsibility of the reviewing 

court on appeal to examine each issue raised in the 

PCRA petition in light of the record certified before it 

in order to determine if the PCRA court erred in its 

determination that there were no genuine issues of 

material fact in controversy and in denying relief 

without conducting an evidentiary hearing.

Commonwealth v. Wah, 42 A.3d 335, 338 (Pa.Super. 2012) (internal 

citations omitted).

Appellant first avers that he is entitled to relief on his underlying claim 

of prosecutorial misconduct and that the PCRA court erred in concluding that 

this claim was waived. (Appellant’s brief at iv, 3-5; Issue I.) We disagree. 

Under the PCRA, “an issue is waived if the petitioner could have raised it but 

failed to do so before trial, at trial, during unitary review, on appeal[,] or in 

a prior state postconviction proceeding.” 42 Pa.C.S.A. § 9544(b). 

Accordingly, appellant is not entitled to relief on this claim. See, e.g.,

Commonwealth v. Ford, 809 A.2d 325, 329 (Pa. 2002) (holding that 

petitioner’s claims of trial court error, constitutional error, and prosecutorial 

misconduct, which could have been raised on direct appeal but were not, 

were waived under the PCRA), cert. denied, 540 U.S. 1150 (2004).
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Appellant next argues that trial counsel rendered ineffective assistance 

by purportedly advising him to reject the Commonwealth’s two plea offers. 

(Appellant’s brief at 5-8; Issue II.) To prevail on a claim of ineffective 

assistance of counsel under the PCRA, a petitioner must plead and prove by 

a preponderance of the evidence that counsel’s ineffectiveness “so 

undermined the truth-determining process that no reliable adjudication of 

guilt or innocence could have taken place.” 42 Pa.C.S.A. § 9543(a)(2)(ii). 

Specifically, a petitioner must establish that “the underlying claim has 

arguable merit; second, that counsel had no reasonable basis for his action 

or inaction; and third, that Appellant was prejudiced.” Commonwealth v. 

Charleston, 94 A.3d 1012, 1020 (Pa.Super. 2014), appeal denied, 104 

A.3d 523 (Pa. 2014) (citation omitted). “[C]ounsel is presumed to be 

effective and the burden of demonstrating ineffectiveness rests on 

appellant.” Commonwealth v. Ousley, 21 A.3d 1238, 1242 (Pa.Super. 

2011), appeal denied, 30 A.3d 487 (Pa. 2011) (citation omitted). 

Additionally, counsel cannot be found ineffective for failing to raise a claim

that is devoid of merit. Commonwealth v. Ligons, 971 A.2d 1125, 1146 

(Pa. 2009).

Instantly, appellant has failed to establish any arguable merit to his

claim that trial counsel rendered ineffective assistance in advising him with 

regard to the Commonwealth’s plea offers, because the record indicates that 

there were no formal plea offers to accept or reject in this matter. As PCRA 
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counsel noted in her August 24, 2016 no-merit letter, the record does not 

contain a criminal conference form indicating that the Commonwealth ever 

made a formal plea offer to appellant, and the Commonwealth withdrew its 

two informal plea offers to appellant prior to his acceptance or rejection. 

(See no-merit letter, 8/24/16 at 7.) Accordingly, appellant’s ineffectiveness 

claim merits no relief.

Appellant’s remaining five claims concern PCRA counsel’s purported 

ineffectiveness in failing to raise various allegations of ineffective assistance 

of counsel on the part of both trial counsel and direct appeal counsel. 

Specifically, appellant alleges that, in lieu of filing a Turner/Finley no-merit 

letter, PCRA counsel should have argued that trial counsel was ineffective for

(a) failing to interview or present the potentially exculpatory testimony of 

Kiaronna Lites at trial (see appellant’s brief at 8-10 (Issue III)); and (b) for 

failing to argue that the prospective jury pool was tainted or challenge it on 

Batson5 grounds. (See id. at 11-15 (Issues IV-VI).) In a one-paragraph 

issue, appellant further argues that direct appeal counsel was ineffective in 

failing to raise or preserve any of the aforementioned issues. (Id. at 15-16, 

Issue VII.) Appellant also contends, albeit parenthetically, that the PCRA 

court erred in failing to conduct a hearing on these claims of ineffectiveness. 

(Id. at 11.) 

 

5 Batson v. Kentucky, 476 U.S. 79 (1986).
J. A30042/17

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Our supreme court has set forth the proper framework for alleging a 

layered ineffective assistance of counsel claim in the context of the PCRA:

Succinctly stated, a petitioner must plead in his 

PCRA petition that his prior counsel, whose alleged 

ineffectiveness is at issue, was ineffective for failing 

to raise the claim that the counsel who preceded him 

was ineffective in taking or omitting some action. In 

addition, a petitioner must present argument, in 

briefs or other court memoranda, on the three 

prongs of the [ineffectiveness] test as to each 

relevant layer of representation. . . . [T]his means 

that the arguable merit prong of the [ineffectiveness] 

test as to the claim that appellate counsel was 

ineffective in not raising trial counsel’s 

ineffectiveness consists of the application of the 

three-prong [ineffectiveness] test to the underlying 

claim of trial counsel’s ineffectiveness. If any one of 

the prongs as to trial counsel’s ineffectiveness is not 

established, then necessarily the claim of appellate 

counsel’s ineffectiveness fails. Only if all three 

prongs as to the claim of trial counsel’s 

ineffectiveness are established, do prongs 2 and 3 of 

the [ineffectiveness] test as to the claim of appellate 

counsel’s ineffectiveness have relevance, requiring a 

determination as to whether appellate counsel had a 

reasonable basis for his course of conduct in failing 

to raise a meritorious claim of trial counsel’s 

ineffectiveness (prong 2) and whether petitioner was 

prejudiced by appellate counsel’s course of conduct 

in not raising the meritorious claim of trial counsel’s 

ineffectiveness (prong 3).

Commonwealth v. Reid, 99 A.3d 470, 482 (Pa. 2014), quoting 

Commonwealth v. McGill, 832 A.2d 1014, 1023 (Pa. 2003).

Our review of appellant’s pro se brief indicates that he has failed to 

properly raise his layered ineffectiveness claims by applying the three-prong 

ineffectiveness test to each level of representation. A determination that 
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trial counsel rendered ineffective assistance is a prerequisite to finding that 

any subsequent counsel was himself ineffective, and as discussed, no such 

findings were demonstrated in this case. See Commonwealth v. Burkett, 

5 A.3d 1260, 1270 (Pa.Super. 2010). Moreover, as noted, “[i]t is within the 

PCRA court’s discretion to decline to hold a hearing if the petitioner’s claim is 

patently frivolous and has no support either in the record or other 

evidence[,]” as is the case here. See Wah, 42 A.3d at 338 (internal 

citations omitted). Additionally, we note that appellant did not file a 

response to PCRA counsel’s no-merit letter and request to withdraw and 

raise claims of PCRA counsel’s purported ineffectiveness. Accordingly, for all 

the foregoing reasons, appellant’s remaining five ineffective assistance of 

counsel claims must fail.

Based on the foregoing, we discern no error on the part of the PCRA 

court in dismissing appellant’s petition without a hearing. Accordingly, we 

affirm the September 26, 2016 order of the PCRA court.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 1/18/2018