J-S19041-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

WASBA A. LELAND 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 519 EDA 2021

Appeal from the PCRA Order Entered November 12, 2020

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

No(s): CP-51-CR-0009567-2015

BEFORE: PANELLA, P.J., OLSON, J., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.: FILED JULY 25, 2022

Wasba A. Leland appeals from the November 12, 2020 order denying 

his petition for relief filed pursuant to the Post-Conviction Relief Act (“PCRA”), 

42 Pa.C.S.A. §§ 9541-9546. After careful review, we affirm.

The relevant facts of this case were summarized in a prior opinion of 

this Court on direct appeal as follows:

On July 19, 2015, Appellant had an altercation with 

Antonio Smith in which Smith was shot in the leg. 

Appellant left the scene before police arrived. The 

following month, a detective on the Fugitive Task 

Force learned that Appellant had been seen at a mall. 

Upon arriving at the mall, the detective saw Appellant 

with his girlfriend, Melissa Williams. Appellant dropped 

the bags he was carrying and fled, but police officers 

apprehended him after a struggle. Williams was also 

taken into custody on an unrelated matter. Inside her 

purse was a handgun that was the source of a bullet 

casing recovered at the location of Smith’s shooting.

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* Former Justice specially assigned to the Superior Court.
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Commonwealth v. Leland, 204 A.3d 461, 462 (Pa.Super. 2019) 

(unpublished memorandum).

On March 7, 2017, Appellant proceeded to a jury trial in connection with 

this incident and was ultimately found guilty of carrying a firearm without a 

license and carrying a firearm on public streets or public property in 

Philadelphia.

1

 Subsequent to the jury trial, Appellant, a convicted felon, was 

also found guilty in a bench trial of persons not to possess, use, manufacture, 

control, sell or transfer firearms.

2

 On May 26, 2017, Appellant was sentenced 

to an aggregate term of 5 to 10 years’ imprisonment, followed by 10 years’ 

probation.3 

On February 12, 2019, a panel of this Court affirmed Appellant’s 

judgment of sentence. See id. Appellant did not file a petition for allowance 

of appeal with our Supreme Court. 

On February 12, 2020, Appellant filed a timely pro se PCRA petition and 

William J. Ciancaglini, Esq. (hereinafter, “PCRA counsel”) was appointed to 

represent him. PCRA counsel filed an amended PCRA petition on Appellant’s 

behalf on July 7, 2020. Thereafter, on October 6, 2020, the PCRA court 

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1 18 Pa.C.S.A. §§ 6106(a)(1) and 6108, respectively. The record reflects that 

the jury found Appellant not guilty of robbery, aggravated assault, and 

possessing instruments of crime.

2 18 Pa.C.S.A. § 6105(a)(1).

3 Appellant was represented at trial by Chris Boltinghouse, Esq. (hereinafter, 

“trial counsel”).
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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. On November 12, 2020, the PCRA court 

dismissed Appellant’s petition without a hearing. 

Appellant filed a pro se notice of appeal on December 16, 2020. On 

October 25, 2021, this Court issued a Rule to Show Cause directing Appellant 

to explain why this appeal should not be quashed as untimely filed. 

Appellant’s counsel filed a response on November 5, 2021. On November 8, 

2021, this Court discharged the Rule to Show Cause and deferred the issue to 

the merits panel.

4

Preliminarily, we must address whether Appellant’s untimely appeal 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 

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4 The PCRA court did not order Appellant to file a concise statement of errors 

complained of on appeal, in accordance with Pa.R.A.P. 1925(b). On April 1, 

2021, the PCRA court filed a one-paragraph “Letter in Lieu of Opinion” 

indicating that it was relying on the reasoning for dismissing Appellant’s PCRA 

petition set forth in footnote 1 of its November 12, 2020 order.
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evidence of internal operating procedures of the prison mail system. See

Commonwealth v. Jones, 700 A.2d 423, 426 (Pa. 1997).

Here, Appellant’s notice of appeal had to be filed by Monday, December 

14, 2020, because the 30th day of the appeal period fell on a Saturday. See

Pa.R.A.P. 903(a) (notice of appeal shall be filed within 30 days after the entry 

of the order from which the appeal is taken); 1 Pa.C.S.A. § 1908 (whenever 

the last day of the appeal period falls on a weekend or on any legal holiday, 

such day shall be omitted from the computation of time). The clerk of courts 

received Appellant’s notice of appeal on December 16, 2020, but the record 

does not contain a certificate indicating when it was deposited with prison 

authorities. Nonetheless, we conclude that Appellant’s notice of appeal, which 

was dated December 10, 2020, 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 notice of appeal to be timely. 

Appellant raises the following issue for our review:

Did the [PCRA] court err in dismissing Appellant’s 

[PCRA] Petition without holding an evidentiary 

hearing?

Appellant’s brief at 5 (parentheses omitted).

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). “This Court grants 

great deference to the findings of the PCRA court, and we will not disturb those 
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findings merely because the record could support a contrary holding.” 

Commonwealth v. Patterson, 143 A.3d 394, 397 (Pa.Super. 2016) (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). 

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

§ 9543(a)(3). 

This court has long recognized that there is no absolute right to an 

evidentiary hearing. Commonwealth v. Hart, 911 A.2d 939, 941 (Pa.Super. 

2006) (citation omitted). When the PCRA court denies a petition without an 

evidentiary hearing, as is the case here, we “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. Khalifah, 852 A.2d 1238, 1240 

(Pa.Super. 2004). “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.” Commonwealth v. Wah, 42 A.3d 

335, 338 (Pa.Super. 2012) (citations omitted). 

Instantly, Appellant contends that an evidentiary hearing was warranted

in this matter because his trial counsel was ineffective for failing to raise a 

justification/constructive possession defense to the gun possession charges at 

trial. Appellant’s brief at 12. We disagree.
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To prevail on a claim of ineffective assistance of counsel under the PCRA, 

a petitioner must establish the following three factors: “first[,] 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) 

(citation omitted), appeal denied, 104 A.3d 523 (Pa. 2014). 

[A] PCRA petitioner will be granted relief only when he 

proves, by a preponderance of the evidence, that his 

conviction or sentence resulted from the [i]neffective 

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. 

Commonwealth v. Spotz, 84 A.3d 294, 311 (Pa. 2014) (internal quotation 

marks omitted; some brackets in original), citing 42 Pa.C.S.A. 

§ 9543(a)(2)(ii).

“[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) (citation omitted), appeal denied, 30 A.3d 487 

(Pa. 2011). 

Upon review, we find that Appellant’s ineffectiveness claim fails because 

he failed to satisfy the first and second prongs of the aforementioned test; 

namely, that the claim had arguable merit and that trial counsel had no

reasonable strategic basis for his inaction. See Commonwealth v. 

Simpson, 66 A.3d 253, 260 (Pa. 2013). The record reflects that a justification 
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defense to the gun possession charges would have been futile because it was 

inconsistent with Appellant’s sworn testimony at trial that he retrieved the 

firearm from the ground after Smith had already been shot and was fleeing 

down the street; continued to possess the firearm as he walked to 10th and 

Tabor in Philadelphia; and then gave the firearm to his girlfriend to put in her 

purse. See notes of testimony, 3/8/17 at 25-26.

Our Supreme Court has repeatedly recognized that “[t]rial counsel 

cannot be found ineffective for failing to pursue a trial strategy that is in direct 

conflict with his client’s sworn testimony.” Commonwealth v. Laird, 726 

A.2d 346, 354 (Pa. 1999) (citation omitted); see also Commonwealth v. 

Smith, 17 A.3d 873, 902 (Pa. 2011) (stating, “we will not find counsel 

ineffective for failing to present a defense that would have conflicted with [his]

testimony.” (citations omitted)), cert. denied, 567 U.S. 937 (2012). 

Additionally, “[c]ounsel will not be deemed ineffective for failing to raise a 

claim that has no merit.” Commonwealth v. Johnson, 815 A.2d 563, 590 

(Pa. 2002) (citation omitted). 

Based on the foregoing, we find that Appellant’s ineffectiveness claim is 

frivolous and unsupported by the record. See Wah, 42 A.3d at 338. 

Accordingly, we conclude that the PCRA court did not err in dismissing 

Appellant’s petition without conducting an evidentiary hearing and affirm its 

November 12, 2020 order.

Order affirmed.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/25/2022