J-S84022-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

TYRESE FORD

Appellant No. 3840 EDA 2015

Appeal from the PCRA Order Dated December 14, 2015

In the Court of Common Pleas of Philadelphia County

Criminal Division at No(s): CP-51-CR-0006600-2011

BEFORE: OLSON, J., SOLANO, J., and FITZGERALD, J.*

MEMORANDUM BY SOLANO, J.: FILED January 20, 2017

Appellant Tyrese Ford appeals pro se from the order denying his initial 

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

§§ 9541-9546. Appellant claims that his trial counsel was ineffective and 

that his guilty plea was a product of this ineffective assistance of counsel. 

We grant counsel’s petition to withdraw, deny Appellant’s pro se Motion to 

Dismiss with Prejudice, and affirm the denial of Appellant’s PCRA petition.

Appellant was charged with murder1and several weapons offenses in 

connection with the February 19, 2011 shooting of Christopher Spence.

____________________________________________

*

Former Justice specially assigned to the Superior Court.

1

 No degree was specified on the information.
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Appellant’s case was listed for trial on July 9, 2012.2 On that day, 

Appellant’s counsel, Kenneth Young, informed the Court that the 

Commonwealth had recently sent him a letter regarding additional 

discovery. Specifically, the letter stated that Dr. Samuel Gulino, Chief 

Medical Examiner for the City of Philadelphia, would testify at trial in place of 

a Dr. Hunt, who performed the autopsy on Spence and was unavailable. In 

addition, Dr. Gulino would testify that Spence suffered a contact gunshot 

wound, an opinion contrary to the opinion in Dr. Hunt’s autopsy report. The 

letter also informed Appellant that the Commonwealth’s firearms expert 

would testify that the bullet recovered from Spence’s body was consistent 

with ammunition found during a search of Appellant’s home. Finally, the 

Commonwealth provided a previously undisclosed statement by 

Commonwealth witness Dana McClamy, in which McClamy identified 

Appellant as the shooter. Appellant presented a motion in limine to exclude 

this new evidence. The court denied Appellant’s motion in limine, but 

agreed to continue the case. PCRA Ct. Op., 12/14/15, at 1-2.

Also at the July 9, 2012 hearing, Appellant rejected an offer from the 

Commonwealth to plead guilty to third-degree murder and weapons offenses 

____________________________________________

2 As the PCRA court noted, “[t]he Notes of Testimony and court file for this 

hearing indicate that it was held on July 8, 2012, though the docket 

indicates that it was held on July 9, 2012.” PCRA Ct. Op., 12/14/15, at 1 

n.1. That discrepancy is not material to the disposition of this appeal.
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in exchange for a recommendation of a 25 to 50-year sentence. N.T., 

7/9/12, at 26-28. 

Finally, at the July 9, 2012 hearing, the trial court denied Appellant’s 

motion to suppress ammunition found during a search of his home. That 

motion was based on alleged deficiencies in the search warrant affidavit. 

N.T., 7/9/12, at 63-75.

At the next listing of Appellant’s case, on December 10, 2012, 

Appellant entered into a negotiated guilty plea to one count of third-degree 

murder (18 Pa.C.S. § 2502) and one count of possession of a firearm 

without a license (18 Pa.C.S. § 6106). In exchange for his plea, the 

Commonwealth agreed to withdraw the remaining charges against Appellant, 

and to recommend an aggregate sentence of eighteen to forty years’ 

incarceration. At the plea hearing, the Commonwealth proffered the 

following factual basis for the plea, to which Appellant agreed:

On February 19, 2011, Latoya Lofton and Christopher Spence 

were present at the T&T Bar and Lounge at Hawthorne and 

Margaret Streets in Philadelphia. Lofton stood next to 

[Appellant] at the bar for approximately seven minutes. At 

some point that evening, [Appellant] and Spence had a verbal 

argument concerning whether Spence was inappropriately 

touching Dana McClamy, another young woman at the bar. 

During the course of the argument, [Appellant] said, “I don’t 

fight like that” and showed the butt of a handgun that was 

secured in his waistband. Both Lofton and Spence saw the 

weapon. Loften attempted to intervene, between [Appellant] 

and Spence, but Spence reached around her and punched 

[Appellant] once in the face. [Appellant] recoiled from the 

punch, drew the firearm, and shot Spence once in the chest. 

Spence was taken to Frankford Hospital, where he was 

pronounced dead from a single gunshot wound to the chest. 
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Following the shooting, [Appellant] returned home to his 

brother, to whom [Appellant] stated he had been in a fight over 

a girl and had ended up shooting a boy at the T&T Lounge. 

Ballistic examination of the bullet used to shoot Spence was 

consistent with ammunition recovered from [Appellant’s] 

residence upon [Appellant’s] arrest.

PCRA Ct. Op. at 3 (citing N.T., 12/10/12, at 11-21); N.T., 12/10/12, at 22. 

During the plea colloquy, Appellant stated that apart from the 

Commonwealth’s promises to withdraw certain charges and recommend an 

aggregate sentence of 18 to 40 years, no one promised him anything or 

threatened him in any way to induce him to plead guilty. N.T., 12/10/12, at 

23. The trial court immediately imposed the negotiated sentence of 18 to 40 

years’ incarceration. Appellant did not file a direct appeal. 

On November 21, 2013, Appellant filed a pro se PCRA petition. 

Attorney Daniel Silverman was subsequently appointed to represent him. 

On July 24, 2014, Attorney Silverman filed a no-merit letter pursuant to 

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

Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc). 

However, on November 20, 2014, Silverman filed an Amended PCRA 

Petition, claiming that trial counsel “rendered ineffective assistance in 

affirmatively misleading petitioner to believe that he would be eligible for 

‘pre-release’ after serving nine years of his 18-year minimum when that was 

not true.” Amended Petition at 10. According to the amended petition, 

Appellant “relied on this erroneous advice in deciding to plead guilty,” and 

would have chosen to go to trial but for counsel’s advice. Id. Appellant 
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attached an affidavit to his PCRA petition in which he stated that if his 

counsel had informed him that he would be required to serve eighteen years 

before he could be released, he “never would have taken the deal.” 

Amended PCRA Petition, Ex. B.

The PCRA court held an evidentiary hearing on April 17, 2015, and 

later summarized the proceedings at that hearing as follows:

[Appellant] presented testimony from Kenneth Young, Lamar 

Larke, and Lisa Robinson. The Commonwealth did not present

any additional testimony.

Mr. Young testified that he was prepared to take [Appellant]’s 

matter to trial prior to receiving the additional unfavorable 

discovery that he received a few days prior to July 9, 2012, and 

losing a motion to exclude this evidence. Young testified that 

following the receipt of this additional evidence . . . but prior to 

the Court's resolution of [Appellant]’s motions to exclude this 

evidence, the Commonwealth presented [Appellant] with an offer 

of 25 to 50 years[’] incarceration, which [Appellant] rejected. 

Young further testified that, following the rejection of this first 

offer, the Commonwealth presented a modified offer of 18 to 40 

years[’] incarceration. Young testified that he first approached 

[Appellant] with the 18 to 40 year offer in the courthouse on 

December 10, 2012, in the presence of [Appellant]’s mother and 

aunt. Young further testified that, when meeting with [Appellant] 

and his family, Young informed [Appellant] that he could apply 

for prerelease after nine years, but that it would “virtually [be] 

like a one in a million chance.” Additionally, Young stated that he 

informed [Appellant] that [Appellant] would be “a very good 

candidate for his minimum parole [at 18 years]....” Young 

testified that he informed [Appellant] that he would be younger 

than Young was at the time of sentencing when released from 

custody. Young also testified that, when discussing prerelease, 

he informed [Appellant] that “it’s really hard. I don’t know, 

maybe I heard of one person in my career get out on 

prerelease.” Young additionally testified that he informed 

[Appellant] and his family that the majority of inmates serve 

80% of their maximum sentence, but that [Appellant] would be 

a good candidate for release at his 18-year minimum due to his 
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young age and lack of a prior record. Young testified that he 

never told [Appellant] that he would be released after serving 

nine years of his sentence. Finally, Young testified that he 

learned at some later point that Pennsylvania had abolished the 

prerelease program on July 5, 2012.

Lamar Larke, [Appellant]’s uncle, testified that after consulting 

with Young he understood that [Appellant] would plead guilty 

and receive a sentence of 18 to 40 years[’] incarceration. Larke 

further testified that it was his understanding that [Appellant] 

“would be able to come home or he’d be eligible to come home” 

after eleven years, with good behavior. Larke modified this 

testimony slightly under cross-examination to state that it was 

his understanding that [Appellant] would come home after 

eleven years, or possibly thirteen years, but definitely not that 

[Appellant] would have to serve the entirety of his eighteen year 

minimum. Larke also testified that this discussion with Young 

occurred on a date other than when [Appellant] pled guilty. 

Larke testified that, after having this discussion with Young, he 

and several other members of [Appellant]’s family consulted with 

each other and decided that it would be a good deal. Larke 

stated that Young never informed [Appellant]’s family that 

[Appellant] would face a “one in a million” chance to get out 

prior to his minimum, or that Young ever stated that he only 

knew of one person being granted prerelease.

Lisa Robinson, [Appellant]’s mother, testified that her first 

discussion with Young concerning [Appellant] pleading guilty 

occurred sometime close to the time of [Appellant]’s scheduled 

trial. Robinson testified that Young informed her that the deal 

offered to [Appellant] was “the best offer that he could get him 

and that – and in a certain amount of time he could ask for a 

prerelease.” Robinson further clarified that it was her 

understanding that [Appellant] could ask for prerelease after 

seven years. Robinson testified that she had a meeting with 

Young, as well as two other family members, during which 

Young stated that [Appellant] “could be eligible for prerelease 

out of this 18 to 40 years, that in 11 years he would be eligible 

for prerelease.” Robinson testified that every time Young 

mentioned the 18 to 40 year deal, he would also mention 

prerelease. Robinson further testified that this prerelease would 

be possible due to [Appellant]’s good behavior, should 

[Appellant] apply for prerelease. Like Larke, Robinson testified 

that Young did not discuss the likelihood of prerelease.
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PCRA Ct. Op. at 4-7 (footnote and citations to the record omitted). Both 

parties filed post-hearing briefs.

On December 14, 2015, the PCRA court denied Appellant’s petition. In 

an opinion filed that day, the court explained that the testimony of Young, 

which it found credible, established that Young informed Appellant that he 

could be eligible for prerelease after serving nine years of his sentence. 

PCRA Ct. Op. at 7. The PCRA court concluded that Young’s advice regarding 

prerelease was incorrect because the prerelease program no longer existed 

at the time Appellant entered his plea. Id. The court credited Young’s 

testimony that he told Appellant the following: (1) Appellant’s odds of being 

released pursuant to the prerelease program were “one in a million;” (2) 

Young had only heard of one defendant in his entire (seventeen-year) career 

experience being released on prerelease; and (3) the majority of defendants 

serve approximately 80% of their maximum sentence. Id. The court found 

the testimony of Appellant’s family members, to the extent it contradicted 

Young’s testimony, was not credible. Id. at 8. The court found that until 

December 10, 2012, Appellant intended to proceed to trial, but that his trial 

strategy was “severely compromised” by the additional discovery revealed in 

July of 2012. Id. The court concluded that Appellant failed to prove 

prejudice — that is, that it was reasonably likely that but for Young’s advice, 

he would have chosen not to plead guilty and to proceed to trial, where he 

faced a significant risk of being found guilty of first-degree murder. Id.
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On December 21, 2015, Appellant, through Attorney Silverman, filed a 

timely notice of appeal. On December 31, 2015, Silverman filed a 

Statement of Matters Complained of on Appeal pursuant to Pa.R.A.P. 

1925(b), stating he had concluded that that there were no issues of arguable 

merit to raise on appeal, and he intended to file an Anders3 brief. 

On February 1, 2016, Silverman filed a petition to withdraw. In that 

petition, counsel said he had sent Appellant a copy of his Anders brief. 

Counsel also stated that on January 27, 2016, Appellant notified counsel that 

he wished to proceed pro se. Silverman’s petition to withdraw did not 

include an Anders brief. 

On February 16, 2016, Silverman filed a petition for an extension of 

time in which to file the appellate brief, pending this Court’s ruling on the 

petition to withdraw. Appellant attempted to file a pro se brief while 

counsel’s motion to withdraw was still pending. On February 17, 2016, this 

Court forwarded that brief to Silverman with a letter, pursuant to 

Commonwealth v. Jette, 23 A.3d 1032 (Pa. 2011). On or around 

February 22, 2016, Appellant sent documents to this Court requesting an 

____________________________________________

3 Anders v. California, 386 U.S. 738 (1967). Because this is an appeal 

from an order denying a PCRA petition, the proper filing would have been a 

petition to withdraw pursuant to Commonwealth v Turner, 544 A.2d 927 

(Pa. 1988) and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) 

(en banc). See Commonwealth v. Wrecks, 931 A.2d 717, 721 (Pa. Super. 

2007).
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extension of time in which to file his brief. He stated that he was forced to 

represent himself because his appointed counsel abandoned him and he 

could not afford another lawyer. He also said he wished to proceed pro se

and have his counsel removed because of disagreements concerning his 

appeal. In accordance with Jette, we forwarded those documents to 

Silverman on March 1, 2016. 

By an order entered February 24, 2016, this Court remanded the case 

for a Grazier4 hearing so that the PCRA court could conduct an on-therecord colloquy and determine whether Appellant’s waiver of counsel was 

knowing, intelligent, and voluntary. The PCRA court complied with this 

Court’s directive and held a Grazier hearing on April 15, 2016. Following the 

hearing, the PCRA court determined that Appellant’s waiver of counsel was 

valid.

On April 21, 2016, this Court issued a briefing schedule. On May 10, 

2016, Appellant filed a pro se petition for an extension of time in which to 

file his brief, which we granted. Appellant filed his pro se brief on June 10, 

2016.5 In this pro se appeal, Appellant argues that the PCRA court erred in 

____________________________________________

4 Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).

5 Because Appellant expressed a wish to proceed pro se, and that request 

was ratified at the Grazier hearing, counsel need not file a Turner/Finley 

brief. 
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dismissing his petition after concluding that he failed to establish that he was 

prejudiced by his counsel’s erroneous advice.6 

On July 13, 2016, the Commonwealth requested an extension of time 

in which to file a brief as appellee. We granted that motion and ordered that 

the Commonwealth file its brief on or before September 9, 2016. The 

Commonwealth did not file a brief by that deadline, and it has not filed any 

brief at all. On December 5, 2016, Appellant filed a “Motion to Dismiss with 

Prejudice” that asks that, as a remedy for the Commonwealth’s failure to file 

a brief, we disregard any argument by the Commonwealth and award 

Appellant a new trial. We deny that aspect of the relief sought in Appellant’s 

motion. 

Although we disapprove of the Commonwealth’s failure to file a brief in 

this matter, the remedy for that omission is not the automatic granting of 

the relief sought by Appellant in his appeal. Pennsylvania Rule of Appellate 

Procedure 2188 provides that if an appellant fails to file a timely brief, an 

appellee may move for dismissal of the matter. However, if the appellee

fails to file a timely brief, the consequence is that the appellee will be 

____________________________________________

6

 Appellant did not include a Statement of Questions Involved in his brief, as 

required by Pennsylvania Rules of Appellate Procedure 2111 and 2116. 

However, because that failure does not hamper our review, we will address 

Appellant’s substantive argument. See Savoy v. Savoy, 641 A.2d 596, 598 

(Pa. Super. 1994) (where failure to provide a separate Statement of 

Questions Involved does not impede this Court’s ability to review the issues, 

we may address the merits of the appeal).
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precluded from participating in any oral argument in the case, absent leave 

of Court. This PCRA case is not subject to oral argument, however. See 

Superior Court I.O.P. 36(A), 210 Pa. Code § 65.36(A) (“All post-conviction 

hearing cases shall be submitted on the briefs and record”). We therefore 

deny Appellant’s “Motion to Dismiss with Prejudice” to the extent he seeks to 

be awarded a new trial based upon the Commonwealth’s failure to file a 

brief.7

Turning to the merits of this appeal, we begin by noting our standard 

of review: In reviewing the propriety of an order granting or denying PCRA 

relief, this Court is limited to ascertaining whether the evidence supports the 

determination of the PCRA court and whether the ruling is free of legal error. 

Commonwealth v. Payne, 794 A.2d 902, 905 (Pa. Super.), appeal 

____________________________________________

7 On October 12, 2016, this Court sent Appellant a notice that his appeal 

was “listed for submission on briefs without oral argument before [this 

panel] on October 24, 2016.” In his motion, Appellant states that he 

learned of this letter upon reviewing an “updated docket sheet,” but that he 

never received the letter and requests a copy. We hereby direct the Court’s 

prothonotary to mail a copy of the October 12, 2016 letter to Appellant. 

Appellant’s motion also states that he received a letter from the Court 

regarding a hearing on October 28, 2016, but that he was not later informed 

of the hearing’s outcome. There was no hearing by this Court in this matter 

on October 28, 2016, or on any other date, and the Court issued no letter 

informing Appellant of such a hearing date. To the extent that Appellant 

misconstrues the reference to “October 24, 2016,” in this Court’s 

October 12, 2016 correspondence as notice of an October hearing date, 

Appellant is mistaken. Our letter notified Appellant only that the case was 

being assigned to this panel on October 24, 2016 for the panel to then 

consider and dispose of Appellant’s appeal on the briefs and record. The 

panel has now done so and is deciding the appeal by this memorandum.
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denied, 808 A.2d 571 (Pa. 2002). This Court defers to the findings of the 

PCRA court, which will not be disturbed unless they have no support in the 

certified record. Id. “Further, the PCRA court’s credibility determinations 

are binding on this Court, where there is record support for those 

determinations.” Commonwealth v. Anderson, 995 A.2d 1184, 1189 (Pa. 

Super.), appeal denied, 9 A.3d 626 (Pa. 2010).

To obtain relief under the PCRA premised on a claim that counsel was 

ineffective, a petitioner must demonstrate that: (1) the underlying claim is 

of arguable merit; (2) counsel had no reasonable strategic basis for his or 

her action or inaction; and (3) petitioner was prejudiced by counsel’s act or 

omission. See Commonwealth v. Pierce, 527 A.2d 973, 975 (Pa. 1987). 

In this context, a finding of “prejudice” requires the petitioner to show “there 

is a reasonable probability that, but for the error of counsel, the outcome of 

the proceeding would have been different.” Commonwealth v. Stevens, 

739 A.2d 507, 512 (Pa. 1999). If a petitioner fails to prove by a 

preponderance of the evidence any of the three Pierce requirements, the 

court need not address the remaining requirements. Commonwealth v. 

Fitzgerald, 979 A.2d 908, 911 (Pa. Super. 2009), appeal denied, 990 

A.2d 727 (Pa. 2010).

The right to effective assistance of counsel extends to the plea 

process: 

However, allegations of ineffectiveness in connection with 

the entry of a guilty plea will serve as a basis for relief only 
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if the ineffectiveness caused the defendant to enter an 

involuntary or unknowing plea. Where the defendant 

enters his plea on the advice of counsel, the voluntariness 

of the plea depends on whether counsel’s advice was 

within the range of competence demanded of attorneys in 

criminal cases. 

Commonwealth v. Wah, 42 A.3d 335, 338-39 (Pa. Super. 2012) (citations, 

brackets, and quotation marks omitted). Moreover, to prove prejudice, a 

petitioner “must show that there is a reasonable probability that, but for 

counsel’s errors, he would not have pleaded guilty and would have insisted 

on going to trial.” Hill v. Lockhart, 474 U.S. 52, 59 (1985);

Commonwealth v. Hickman, 799 A.2d 136, 141 (Pa. Super. 2002) 

(applying same test under Pennsylvania law). “The ‘reasonable probability’ 

test is not a stringent one.” Hickman, 799 A.2d at 141 (citing Nix v. 

Whiteside, 475 U.S. 157, 175 (1986)). “[A] reasonable probability is a 

probability sufficient to undermine confidence in the outcome.” Nix, 475 

U.S. at 175 (citation omitted).

In Hill, the defendant alleged that plea counsel erroneously advised 

him that if he pleaded guilty, he would be eligible for parole after serving 

one-third of his sentence, when in fact the defendant would not be eligible 

for parole until he had served one-half of his sentence. Hill, 474 U.S. at 55. 

The Court found it “unnecessary to determine whether there may be 

circumstances under which erroneous advice by counsel as to parole 

eligibility may be deemed constitutionally ineffective assistance of counsel,” 
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because it concluded that Hill had not satisfied the prejudice requirement. 

Id. at 60. The Court explained:

Petitioner did not allege in his habeas petition that, had counsel 

correctly informed him about his parole eligibility date, he would

have pleaded not guilty and insisted on going to trial. He alleged 

no special circumstances that might support the conclusion that 

he placed particular emphasis on his parole eligibility in deciding 

whether or not to plead guilty. Indeed, petitioner’s mistaken 

belief that he would become eligible for parole after serving onethird of his sentence would seem to have affected not only his 

calculation of the time he likely would serve if sentenced 

pursuant to the proposed plea agreement, but also his 

calculation of the time he likely would serve if he went to trial 

and were convicted.

Id.

In Hickman, this Court held that a PCRA petitioner was entitled to 

relief where his “plea counsel gave [him] reason to believe he would be 

released from prison in two years and be eligible for parole six months later, 

when, in fact, [he] was statutorily ineligible for release into the boot camp 

program and could not receive parole until he had served four years[’] 

imprisonment.” Hickman, 799 A.2d at 141. At the PCRA hearing, both 

Hickman and his plea counsel testified that but for counsel’s erroneous 

advice regarding boot camp, Hickman would have pleaded “not guilty” and 

opted to go to trial. Id. The PCRA court found that testimony credible. Id. 

This Court noted that the circumstances of Hickman’s case were consistent 

with his claim, explaining, “it is not unlikely that he would have otherwise 

tested the case against him at trial since the risk of a guilty verdict carried 

but an additional year on his maximum sentence.” Id. at 141-42. Under 
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those circumstances, we held that Hickman had proved his plea counsel was 

ineffective and must receive the opportunity to withdraw his guilty plea. Id.

at 141-43. 

In this case, Appellant claims that his plea counsel provided ineffective 

assistance by erroneously advising him that he would be eligible for prerelease when, in fact, that program had been abolished. He argues that, in 

accordance with Hickman, his claim has arguable merit and his counsel had 

no reasonable basis for his error. Appellant further asserts that because he 

relied on his counsel’s representations regarding pre-release, his plea was 

not knowing and voluntary. He states, “[t]here is no evidence in this record 

to suggest that petitioner was anything but eager to have his day in court.” 

Appellant’s Brief at 11. He notes that he rejected two prior plea offers, one 

for 25 to 50 years’ incarceration and one for 20 to 40 years’ incarceration. 

Id. at 11-12. Contending that the evidence against him “was at least 

equally consistent with verdicts of third degree murder and voluntary 

manslaughter,” he concludes that, “[o]bjectively, a decision to proceed to 

trial was a perfectly rational choice.” Id. at 12. 

Contrary to Appellant’s argument, however, the PCRA court found that 

Appellant failed to prove that he would have gone to trial if he had received 

correct advice about the pre-release program. We are required to defer to 

the PCRA court’s findings on this issue if they are supported by the evidence 
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of record, Payne, 794 A.2d at 905, and, after a careful review of the record, 

we conclude that the PCRA court’s findings do indeed have record support.

The PCRA court believed Young’s testimony that Young told Appellant 

that there was only a “one in a million chance” of obtaining pre-release and 

that most defendants serve about 80% of their maximum sentences. PCRA 

Ct. Op. at 7. Although Appellant presented witnesses who disputed that 

testimony, we are required to accept the PCRA court’s credibility 

determinations on this issue. Anderson, 995 A.2d at 1189.8 Having 

accepted Young’s testimony, the PCRA court then concluded that Appellant 

failed to prove a reasonable probability that, but for his “one in a million 

chance” of pre-release, he would not have pleaded guilty. PCRA Ct. Op. at 

7-8; see Hill, 474 U.S. at 59. The court noted that Appellant’s defense 

strategy was “severely compromised by the additional admissible evidence 

of a contact gunshot wound, eyewitness testimony[,] and a ballistic match to 

ammunition found in [Appellant]’s residence upon his arrest.” PCRA Ct. Op. 

at 8. The court also noted that if Appellant proceeded to trial, “there was a 

significant risk of being found guilty of first-degree murder and being 

____________________________________________

8 We note that in this case, unlike in Hickman, Appellant did not testify at 

the evidentiary hearing. Although Appellant attached an affidavit to his 

PCRA petition in which he properly alleged prejudice, an affidavit is not a 

substitute for testimony at the evidentiary hearing. See Commonwealth 

v. Dennis, 950 A.2d 945, 964 (Pa. 2008) (where petitioner attached 

affidavits from potential alibi witnesses to his PCRA petition, but did not 

present their testimony at his evidentiary hearing, he failed to carry his 

burden of proof). 
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sentenced to . . . mandatory life in prison without parole.” Id. The court’s 

conclusion was supported by the evidence and not based on an error of law.

Based on the foregoing, we grant counsel’s petition to withdraw and 

affirm the PCRA court’s order denying Appellant post-conviction relief. We 

also deny Appellant’s Motion to Dismiss with Prejudice, and we direct the 

Superior Court Prothonotary to mail Appellant a copy of the October 12, 

2016 submission letter.

Petition to withdraw granted. Motion to Dismiss with Prejudice denied. 

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 1/20/2017