J-A29011-21

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

ANDREW DAVID MILLER 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1346 WDA 2020

Appeal from the PCRA Order Entered December 3, 2020

In the Court of Common Pleas of Venango County Criminal Division at 

No(s): CP-61-CR-0000710-2005

BEFORE: BENDER, P.J.E., BOWES, J., and PELLEGRINI, J.*

MEMORANDUM BY BENDER, P.J.E.: FILED: DECEMBER 22, 2021

Appellant, Andrew David Miller, appeals from the order dismissing his 

petition filed pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. 

§§ 9541-9546. After careful review, we affirm.

During Appellant’s direct appeal, this Court summarized the facts 

adduced at Appellant’s 2006 jury trial as follows:

The victim, B.M., testified that on August 29, 2005, she was 

sleeping on the floor of the living room in the home of Susan 

O’Laughlin [(“O’Laughlin”)], B.M.’s guardian. B.M. testified that

while she was sleeping that night, Appellant, ... O’Laughlin’s livein boyfriend, directly placed his penis in her vaginal orifice, with 

skin-to-skin contact. N.T., 4/13/06, at 119-[]20. B.M. stated that 

she woke up to Appellant’s touch because it hurt. Id. After 

realizing she was awake, Appellant acted like he was sleeping, 

after which B.M. got up and moved onto a couch in the room. Id.

at 121, 123. B.M. also testified that on the next night, August 30, 

2005, Appellant again touched her while she was sleeping, this 

time placing his finger in her vagina. Id. at 130. When B.M.

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* Retired Senior Judge assigned to the Superior Court.
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awoke, Appellant feigned sleep and she again moved onto the 

couch. Id. at 131-32. After the second incident, B.M. informed 

... O’Laughlin about Appellant’s actions, and ... O’Laughlin 

contacted the police. Id. at 132. At the time, B.M. was thirteen 

years old[,] and Appellant was eighteen years of age. Id. at 4, 6.

Commonwealth v. Miller, No. 1509 WDA 2006, unpublished memorandum 

at 1-2 (Pa. Super. filed June 25, 2007). Pertinent to this appeal, O’Laughlin

“testified during the trial that she had no knowledge as to whether [Appellant]

and the victim had any sort of sexual encounter. O’Laughlin also testified that 

she, herself, had been sexually assaulted by [Appellant] on a previous 

occasion.” PCRA Court Opinion (“PCO”), 2/17/21, at 1.

On April 13, 2006, a jury convicted [Appellant] of attempted 

statutory sexual assault,1 aggravated indecent assault of a person 

less than 16 years of age,2 endangering the welfare of children,3

and corruption of minors.4 The [trial c]ourt sentenced [Appellant]

on August 4, 2006[;]1 [Appellant] timely appealed, and the 

Superior Court ultimately affirmed [Appellant]’s conviction.... On 

November 21, 2007, [Appellant] timely filed his ... PCRA Petition[].

On November 27, 2007, the [PCRA c]ourt appointed William J. 

Cisek, Esq. to represent [Appellant]. In the same Order, the 

[c]ourt directed Attorney Cisek to file an amended PCRA petition 

by December 27, 2007[,] or—if transcripts were necessary to 

prepare an amended petition—to file a request for transcripts by 

December 17, 2007.

1 18 Pa.C.S. §§ 901, 3122.1.

2 18 Pa.C.S. § 3125(a)(8).

3 18 Pa.C.S. § 4304(a).

4 18 Pa.C.S. § 6301(a)(1).

On August 1, 2008, the [c]ourt conducted a status conference in 

this matter. In a bench order issued on that date, the [c]ourt 

noted that Attorney Cisek had obtained transcripts on July 31, 

2008, and that he “ha[d] been communicating with his client.” 

The [c]ourt directed the Court Administrator to schedule another 

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1 The court sentenced Appellant to an aggregate term of 144 to 288 months’ 

incarceration, to be followed by 60 months’ probation. 
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status conference four months later, and further indicated that it 

anticipated that Attorney Cisek would file either a request for 

hearing or provide some indication that a [Turner/Finley2] no[-

]merit letter would be forthcoming prior to the next status 

conference.

On December 30, 2008, the [PCRA c]ourt conducted a second 

status conference. Following that conference, the [c]ourt issued 

an order directing Attorney Cisek to file a [Turner/]Finley letter 

within 30 days. This would be the last activity with respect to 

[Appellant]’s PCRA Petition for nearly seven years.

On December 28, 2015, the Clerk accepted for filing a letter from 

[Appellant], dated December 21, 2015. In his letter, [Appellant]

stated that he had been serving his sentence in Michigan[] during 

2010 and 2011 as a result of prison overcrowding[] and had never 

received notice of any disposition of his PCRA Petition. On or 

shortly before January 19, 2016, the [PCRA c]ourt received and 

reviewed [Appellant]’s letter. On January 19, 2016, the [c]ourt 

issued an order observing that Attorney Cisek remained counsel 

of record and that nothing had been filed relative to the PCRA 

Petition since its December 30, 2008 order, and directing Attorney 

Cisek to review [Appellant]’s letter and promptly file whatever 

pleading he considered appropriate.

Following the [PCRA c]ourt’s January 19, 2016 order, [Appellant]

sent another letter, filed January 28, 2016. In his letter, 

[Appellant] stated as follows: “By court order dated Jan. 19, 2016,

I just found out, upon my inquiry into the court, that my original 

[PCRA petition] ([timely] filed in 2008[]) is still open, 7 yrs. later, 

due to a lack of due [diligence] and ineffectiveness on my ... 

appointed counsel, William Cisek.” Thereafter, [Appellant] filed 

another letter and a pro se amended PCRA Petition on February 4, 

2016. [Appellant] filed an additional letter on July 21, 2016, 

inquiring about the cost of obtaining transcripts.

On September 6, 2017, Attorney Matthew C. Parson entered his 

appearance in the matter. Attorney Parson’s entry of appearance 

also indicated that Attorney Cisek wished to be removed from this 

case, and was signed by Attorney Cisek. On June 14, 2019, 

Attorney Parson filed a motion for hearing. The [PCRA c]ourt 

scheduled a hearing for February 3, 2020. On January 16, 2020,

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2 See Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and see

Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988).
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Attorney Parson filed an amended affidavit from ... O’Laughlin, 

stating that the prosecutor, James Carbone [(“Carbone”)], had 

appeared at her home on the day of trial, that she was very ill on 

that day, ... that the prosecutor had pressured her to testify that 

[Appellant] had an inappropriate relationship with the victim[,]

and that [Appellant] had been sexually abusive toward O’Laughlin. 

On February 3, 2020, Attorney Parson filed a Motion to Amend 

PCRA Petition, to narrow the matter to three issues: (1) trial 

counsel was ineffective for failing to file an appeal,5 (2) trial

counsel was ineffective for failing to call witnesses to testify, and 

(3) that ... Carbone had coerced testimony from O’Laughlin.

5 This issue was ultimately withdrawn at the September 18, 

2020 hearing, as trial counsel did pursue a direct appeal.

...

On September 18, 2020, the [PCRA c]ourt conducted a hearing, 

with [Appellant] present via video conference. [Appellant] was 

unable to secure the appearance of the two additional witnesses

that he wished to present -- Attorney Johnston, [his] trial counsel, 

and O’Laughlin. [Appellant] testified regarding trial counsel’s 

failure to call two witnesses, indicating that they had been present 

with [Appellant] at the time of his arrest and could testify as to 

the events of that day; there is no indication that the witnesses 

had any testimony bearing directly upon the sexual assault that 

formed the basis of [Appellant]’s conviction. [Appellant]

speculated that their testimony would relate to the circumstances 

of his arrest, and would potentially have demonstrated that other 

individuals may have used his arrest as an excuse to steal his 

money and drugs. When questioned as to how the testimony of 

these two witnesses would have helped him at trial, he indicated 

that he did not know. When asked, [Appellant] indicated that his 

memory of the events had faded due to the passage of 

approximately 13 years since the time of trial. Attorney Parson 

also inquired about the delay in the PCRA proceedings. 

[Appellant] testified that he received “maybe one letter” from 

Attorney Cisek and that he never spoke directly with

Attorney Cisek. After [Appellant] returned from his placement in 

Michigan, he wrote Attorney Cisek “a few times,” but never 

received a response. [Appellant] testified that his family 

contacted Attorney Cisek, and that he “said he was going to do 

some things, but he never did nothing.” Near the close of the 

hearing, Attorney Parson moved to amend the PCRA Petition to 

add a claim of prejudice due to the passage of time. As 
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[Appellant] was unable to secure the appearance of his two 

witnesses, the [c]ourt granted a final continuance to allow 

[Appellant] time to obtain testimony from Attorney Johnston and 

O’Laughlin.

On November 30, 2020, the [PCRA c]ourt conducted an additional 

evidentiary hearing and received testimony from Attorney 

Johnston and ... O’Laughlin. Attorney Johnston did not recall 

[Appellant] at all and did not remember representing him. 

O’Laughlin’s testimony was largely consistent with the substance

of her affidavit. She testified in further detail about the day that 

... Carbone picked her up from her residence and took her to testify 

at [Appellant]’s trial, including Carbone’s request that she testify 

that [Appellant] had sexually abused the victim. While O’Laughlin 

could not recall all the details of her testimony from 2007, she did 

recall that she testified that she had no knowledge as to whether 

[Appellant] had any sexual contact with the victim. Regarding 

O’Laughlin’s trial testimony of [Appellant]’s assault against her, 

O’Laughlin said she could not recall testifying[] that [Appellant]

had touched her while she was asleep, against her consent.

O’Laughlin stated that she and [Appellant] were dating at the 

time. When asked whether Carbone told her [to] testify that 

[Appellant] had assaulted her, she replied that Carbone inquired 

about the relationship between her and [Appellant], and that he 

did so in a “forward” manner, but that she could not recall whether 

he told her to testify to that effect.

PCO at 2-6 (some brackets in original).

Following the November 30, 2020 hearing, the PCRA court denied 

Appellant’s long-delayed PCRA petition. Appellant filed a timely notice of 

appeal, and a timely, court-ordered Pa.R.A.P. 1925(b) statement. The PCRA 

court issued its Rule 1925(a) opinion on February 17, 2021. Appellant now 

presents the following questions for our review:

1. Whether the [PCRA] court erred as a matter of law or 

abused its discretion, when the court denied [Appellant]’s

PCRA petition for a recanting [sic] of the witness[’]s 

testimony[, where she] was coerced into admitting that 

[A]ppellant had assaulted her[?]
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2. Whether the [PCRA] court erred as a matter of law or 

abused its discretion, when the court denied [Appellant]’s 

PCRA petition[,] when [his] due process rights were violated 

under the Un[it]ed States Constitu[t]ion and the

Pennsylvania Constitution when [Appellant’s] first PCRA 

counsel failed to file a [PCRA] petition for more than 10 

years[,] which caused the inability to find witnesses, trial 

counsel had no memory, and the recanting witness had no

memory since the trial was completed over ten years ago[?]

Appellant’s Brief at 5.

Initially, we

review an order dismissing a petition under the PCRA in the light 

most favorable to the prevailing party at the PCRA level. This 

review is limited to the findings of the PCRA court and the evidence 

of record. We will not disturb a PCRA court’s ruling if it is 

supported by evidence of record and is free of legal error. This 

Court may affirm a PCRA court’s decision on any grounds if the 

record supports it. Further, we grant great deference to the 

factual findings of the PCRA court and will not disturb those 

findings unless they have no support in the record. However, we 

afford no such deference to its legal conclusions. Where the 

petitioner raises questions of law, our standard of review is de 

novo and our scope of review plenary.

Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa. Super. 2012) (internal 

citations omitted). 

To be entitled to PCRA relief, a 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. § 9543(a)(2). 

Regarding his first claim, Appellant argues that O’Laughlin has recanted her 

trial testimony, testimony Appellant claims was coerced by Carbone. Thus, 

Appellant ostensibly seeks relief under Section 9543(a)(2)(i) (providing 

eligibility for relief for a “violation of the Constitution of this Commonwealth 
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or the Constitution or laws of the United States 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”), and/or 

under Section 9543(a)(2)(vi) (providing eligibility for relief due to the 

discovery of “exculpatory evidence” unavailable at the time of trial “that has 

subsequently become available and would have changed the outcome of the 

trial if it had been introduced”). Specifically, Appellant argues that he

discovered that Carbone engaged in prosecutorial misconduct by coercing 

O’Laughlin’s trial testimony that she had also been sexually assaulted by 

Appellant. Appellant argues that O’Laughlin’s trial testimony prejudiced him 

because it enabled Carbone to portray Appellant as a serial offender in the 

eyes of the jury. See Appellant’s Brief at 12 (“ADA Carbone d[id] this because 

if he c[ould] prove that the witness was sexually assaulted[,] then of course 

[A]ppellant [must have] sexually assaulted the victim.”). Appellant further 

argues that:

In the present case, [O’Laughlin] has no reason to lie now. She 

has had no contact with [A]ppellant for over 14 years. They are 

no longer in a relationship. The witness and [A]ppellant are not 

planning on reuniting. Her testimony of being pressured by ADA 

Carbone is truthful and well proven by this stage in ADA Carbone’s 

history as a prosecutor.[3] Thus, her testimony that no sexual 

assault occurred between her and [A]ppellant is sufficient to grant 

a new trial.

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3 Appellant is referring to two prior, unrelated cases where this Court granted 

relief premised upon Carbone’s prosecutorial misconduct. See 

Commonwealth v. Culver, 51 A.3d 866 (Pa. Super. 2012), and 

Commonwealth v. Anderson, 38 A.3d 828 (Pa. Super. 2011). 
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Id. at 14.

Our review of the record shows that O’Laughlin testified at Appellant’s 

2006 trial that during her relationship with Appellant, O’Laughlin would 

occasionally “wake up to him trying to have sexual intercourse” with her, and 

that Appellant would “act like he[ was] sleeping” when she woke up. N.T.

Trial, 4/13/06, at 164-65. She stated that this occurred “[m]aybe more than 

ten times.” Id. at 167. In her affidavit dated January 13, 2020 (filed on 

January 16, 2020), O’Laughlin stated that, prior to her trial testimony, 

Carbone told her “to testify that [Appellant] was sexually abusive toward” her. 

Amended Affidavit of Susan O’Laughlan [sic], 1/16/20, at 1. In the affidavit, 

O’Laughlin further stated that Carbone was “coaching” her to “testify in a 

certain way.” Id. 

At the PCRA hearing, O’Laughlin testified during direct examination that 

Carbone picked her up on the day of her trial testimony, despite O’Laughlin’s

feeling ill and despite repeatedly telling him that she did not know anything 

about Appellant’s sexually assaulting the victim. N.T. PCRA Hearing, 

11/30/20, at 5-6. She recalled testifying consistently with her lack of 

knowledge about Appellant’s assault of the victim. Id. at 6-7. She stated 

that she “just told the truth” when testifying at Appellant’s trial. Id. at 7. On 

cross-examination, O’Laughlin specifically denied that any of her trial 

testimony “came out of whatever ... Mr. Carbone wanted” her to say. Id. at 

8. 
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During re-direct examination, O’Laughlin could not recall testifying that 

Appellant had touched her without her consent while she was asleep. Id. at 

9. Notably, O’Laughlin did not repeat the allegation that Carbone had told her 

to testify that Appellant had sexually abused her, as her affidavit had stated.4 

O’Laughlin was only asked whether she recalled making the accusations 

during her trial testimony, and she answered that she did not recall that 

testimony. 

The PCRA court determined that Appellant was not entitled to relief on 

his claim that Carbone had solicited false testimony from O’Laughlin. PCO at 

9. The court reasoned that neither O’Laughlin’s affidavit nor her testimony at 

the PCRA hearing presented exculpatory evidence sufficient to cast doubt on

the outcome of Appellant’s trial, even assuming both that O’Laughlin falsely 

testified at Appellant’s trial, and that Carbone had intentionally solicited that

false testimony.

5

 Id. at 8-9. More specifically, the PCRA found that

[Appellant] has offered no evidence that would undermine the 

reliability of the victim’s testimony, either by suggesting that the 

victim’s testimony was false or by offering some other evidence 

that would be incompatible with [Appellant]’s guilt in this matter. 

While the fact that the prosecutor knowingly procured false 

testimony is generally exculpatory, Commonwealth v. Wallace, 

... 455 A.2d 1187, 1190-91 ([Pa.] 1983), the import of such 

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4 O’Laughlin also did not deny that the sexual assaults had occurred, because 

she was not asked about the truth of her allegation at all. O’Laughlin also did 

not deny that they had occurred in her affidavit.

5 The PCRA court noted that neither assumption was supported by the record, 

and that it merely made those assumptions for purposes of determining 

whether the outcome of Appellant’s trial would have been different if both 

allegations were true. Id. at 8 n.10. 
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evidence relates to whether that witness’s reliability may be 

determinative of guilt or innocence, which is simply not the case 

here.

Id. at 9. 

We agree that Appellant is not entitled to relief on this claim, but for 

reasons that differ from the PCRA court.6 We note that, whether construed 

as a prosecutorial misconduct claim or a newly-discovered evidence claim, 

Appellant must demonstrate that his trial was adversely affected by the 

misconduct and/or the absence of the new evidence to be entitled to relief 

under the PCRA.7

For purposes of the PCRA court’s analysis, it assumed that O’Laughlin’s 

trial testimony was false and had been the product of Carbone’s misconduct. 

However, nothing in the record supports the proposition that O’Laughlin’s trial 

testimony was untruthful in any way, regardless of the propriety of Carbone’s 

conduct. At the PCRA hearing, O’Laughlin stated that she testified truthfully 

at Appellant’s trial, despite any pressure applied by Carbone to do otherwise.

See PCRA Hearing at 5-6. Furthermore, O’Laughlin never refuted her claim 

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6 “To the extent our legal reasoning differs from the [PCRA] court’s, we note 

that as an appellate court, we may affirm on any legal basis supported by the 

certified record.” Commonwealth v. Williams, 125 A.3d 425, 433 (Pa. 

Super. 2015). 

7 To obtain relief under 42 Pa.C.S. § 9543(a)(2)(i), Appellant must show that 

the prosecutorial misconduct “so undermined the truth-determining process 

that no reliable adjudication of guilt or innocence could have taken place.” To 

obtain relief under 42 Pa.C.S. § 9543(a)(2)(vi), Appellant must show that the 

previously unavailable evidence “would have changed the outcome of the trial 

if it had been introduced.” 
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at trial that Appellant had sexually assaulted her when they were dating. 

Indeed, the record fails to demonstrate that O’Laughlin has recanted any 

portion of her trial testimony at all. Consequently, we conclude that Appellant 

has failed to produce evidence undermining the reliability of his conviction as 

is necessary to obtain relief under Section 9543(a)(2)(i), and for the same 

reasons, that he has failed to show that the outcome of his trial would have 

been different with the new evidence as is required for him to obtain relief 

under Section 9543(a)(2)(vi). Accordingly, we conclude that Appellant’s first 

claim lacks merit. 

Next, Appellant contends that his due process rights were violated when 

his prior PCRA counsel abandoned him, effectively leaving his PCRA petition in 

limbo for more than 10 years. With respect to this claim, there is no dispute 

that Attorney Cisek utterly failed to provide Appellant with competent counsel 

after his appointment to steward Appellant’s PCRA petition in 2007. As 

summarized by the PCRA court:

Here, there is little evidence that Attorney Cisek did anything more 

than request transcripts and attend two status conferences over 

the course of approximately 10 years, during which he was 

[Appellant]’s counsel of record. This is true, despite multiple court 

orders directing Attorney Cisek to take action in this matter within 

pr[e]scribed periods. It appears that Attorney Cisek simply 

abandoned [Appellant]’s matter sometime in 2008 or 2009.

PCO at 11. 

Appellant asserted that a due process violation resulted from Attorney 

Cisek’s abandonment in his Rule 1925(b) statement, a claim that he repeats 

in his statement of the question presented. However, Appellant provides no 
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due-process analysis in his brief and, instead, presents Attorney Cisek’s 

abandonment as an ineffective assistance of counsel (IAC) claim. See

Appellant’s Brief at 14-15 (citing the standard for our review of IAC claims). 

Consequently, Appellant has waived his due process claim by failing to 

adequately develop that claim in his brief. See Commonwealth v. 

Freeman, 128 A.3d 1231, 1249 (Pa. Super. 2015) ( “The failure to develop 

an adequate argument in an appellate brief may result in waiver of the claim 

under Pa.R.A.P. 2119. While this Court may overlook minor defects or 

omissions in an appellant’s brief, we will not act as his or her appellate 

counsel.”) (cleaned up). Furthermore, Appellant has waived his IAC claim by 

failing to raise it in his Rule 1925(b) statement. See Commonwealth v. 

Lord, 719 A.2d 306, 309 (Pa. 1998) (“Any issues not raised in a 1925(b) 

statement will be deemed waived.”).8 

Nevertheless, even had Appellant preserved his IAC claim for our 

review, we would deem it meritless. To establish an IAC claim, a PCRA 

petitioner must “plead and prove, by a preponderance of the evidence, three 

elements: (1) the underlying legal claim has arguable merit; (2) counsel had 

no reasonable basis for his or her action or inaction; and (3) [the a]ppellant 

suffered prejudice because of counsel’s action or inaction.” Commonwealth 

v. Hutchinson, 25 A.3d 277, 285 (Pa. 2011). Here, there is no dispute with 

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8 We note that the PCRA court’s order instructed Appellant that any issue “not 

properly included in the statement” would be deemed waived. Order, 

12/21/20, at 1. 
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respect to the first two elements, given the PCRA court’s conclusion that 

Attorney Cisek abandoned Appellant after he was appointed as PCRA counsel. 

However, to “establish the third prong, [the a]ppellant 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. Instantly, the 

‘proceedings’ in question concerned the adjudication of Appellant’s PCRA 

petition. Fortunately, despite Attorney Cisek’s abandonment, Appellant’s 

PCRA petition, initially filed in 2007, was never denied while Cisek was 

Appellant’s attorney of record. After Appellant brought Attorney Cisek’s 

abandonment to the PCRA court’s attention, the court appointed new counsel, 

who was then permitted to amend Appellant’s still-pending, and still-timely 

PCRA petition. Following those amendments, the PCRA court conducted 

hearings to address Appellant’s claims before it ultimately denied the petition. 

For Appellant to be entitled to relief on his IAC claim, he must show that these

PCRA proceedings would have reached a different outcome but for Attorney 

Cisek’s abandonment.

Appellant argues that Attorney Cisek’s deficient performance directly 

caused the extraordinary delay in the resolution his PCRA petition, which is 

undisputed. That delay, he contends, prejudiced him in two ways. First, he 

claims that because “his trial counsel had no memory” of Appellant, trial 

counsel 

could not provide testimony on whether ... that recantation issue 

mentioned above would have any [e]ffect on the outcome of the 

trial. This is an important issue because the court needs ... 
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evidence that the trial would have resulted in a different outcome. 

The time frame between the filing of this PCRA petition and the 

hearing created an[] issue where the evidence was not available 

when trial counsel cannot even remember the client.

Second, the PCRA court references that [A]ppellant desired two 

witnesses to testify at the PCRA hearing. These witnesses would 

have aided in his trial on character evidence and facts. Current 

counsel could not locate the witnesses. After thirteen years, they 

could not be located or interviewed. Counsel ... and the family of 

[A]ppellant attempted to find these individuals. It is impossible 

to state if their testimony would make a difference[,] but Attorney 

Cisek’s ineffectiveness in proceeding with the PCRA petition 

denied this evidence ever coming to light.

Appellant’s Brief at 15-16.

Appellant’s initial assertion of prejudice is meritless for the same reason 

we rejected his first claim: Appellant did not present recantation testimony 

and, thus, trial counsel’s assessment of the effect that the non-existent 

recantation testimony would have had at trial is irrelevant. Again, O’Laughlin 

specifically denied that her trial testimony was untruthful. Thus, the record 

simply does not support a finding of prejudice on this basis. 

As to Appellant’s second assertion of prejudice, he admits that it is 

“impossible” to ascertain whether the unfound witnesses could have presented 

evidence favorable to him, even as he baldly asserts that the witnesses “would 

have aided in his trial on character evidence and facts.” Id. at 16. This claim 

of prejudice is pure speculation, offering only the vaguest theory of how the 

unfound witnesses might have changed the outcome of the PCRA proceedings. 

“Claims of ineffective assistance of counsel that are based on speculation and 

conjecture do not adequately establish the degree of prejudice necessary; 

namely, that there is a reasonable probability that, but for counsel’s errors, 
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the outcome of the proceeding would have been different.” Commonwealth 

v. Pursell, 724 A.2d 293, 311 (Pa. 1999). 

Accordingly, even had Appellant properly preserved his IAC claim for 

our review, we would deem it meritless because Appellant cannot establish 

that Attorney Cisek’s abandonment resulted in outcome-determinative 

prejudice.

9

 

Order affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/22/2021

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9 Nevertheless, we join the PCRA court in its condemnation of Attorney Cisek’s

dereliction of duty in the stewardship of Appellant’s PCRA petition. See PCO 

at 11 (“While [Appellant] has not demonstrated prejudice due to the 13-year 

delay, the [c]ourt is troubled by the circumstances surrounding the delay. The 

record in this case raises serious concerns regarding [his] performance[,] ... 

[including] a clear lack of respect for the[ Pennsylvania Rules of Professional 

Conduct].”).