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____________________________________ * Retired Senior Judge assigned to the Superior Court. NON - PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA

Appellee

v. TYUAN SIMON Appellant : : : : : : : : : IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 3204 EDA 2017 Appeal from the PCRA Order September 12, 2017 In the Court of Common Pleas of Montgomery County Criminal Division at No(s): CP

- 46

- CR

- 0007840

- 2012

BEFORE: GANTMAN, P.J., OTT, J., and PLATT*, J. MEMORANDUM BY GANTMAN, P.J.: FILED FEBRUARY 26, 2019 Appellant, Tyuan Simon, appeals from the order entered in the
Mo ntgomery County Court of Common Pleas, which denied Appellant’s first petition brought under the Post Conviction Relief Act (“PCRA”). 1 We affirm. The relevant facts and procedural history of this case are as follows. During a grand jury hearing on Jul y 18, 2012, Christopher Carbone testified another prison inmate had told Mr. Carbone that Appellant had hired the inmate to kill Victim. Subsequently, the Commonwealth charged Appellant with first

- degree murder and related offenses arising out of the shoo ting death of Victim. Appellant proceeded to a multi

- day jury trial on June 24, 2013. At trial, Mr. Carbone recanted his grand jury testimony, indicating, inter alia : (i) his attorney had coerced him to testify at the grand jury

1 42 Pa.C.S.A. §§ 9541

- 9546.J

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hearing, because he led M r. Carbone to believe the Commonwealth would pursue a lesser sentence against Mr. Carbone in his pending criminal case if he testified; and (ii) after the grand jury hearing, someone had threatened to harm Mr. Carbone and his family if he testified against Appellant at trial. On June 27, 2013, a jury convicted Appellant of first

- degree murder, solicitation to commit murder, and conspiracy to commit murder. The court sentenced Appellant on September 20, 2013, to life without the opportunity of parole (“LWO P”). This Court affirmed the judgment of sentence on December 12, 2014, and our Supreme Court denied allowance of appeal on May 13, 2015. See Commonwealth v. Simon , 116 A.3d 686 (Pa.Super. 2014) (unpublished memorandum), appeal denied , 632 Pa. 662, 116 A .3d 604 (2015). On May 3, 2016, Appellant timely filed his first and current pro se PCRA petition. Appellant subsequently retained PCRA counsel. Appellant filed an amended PCRA petition on May 4, 2017, and a supplemental PCRA petition on July 25, 2017 , in which Appellant raised claims of ineffective assistance of trial and appellate counsel. On August 7, 2017, the PCRA court issued Rule 907 notice. On August 17, 2017, Appellant filed a “Motion to Continue,” requesting the court to allow Appellant add itional time to obtain an affidavit from Mr. Carbone regarding his trial testimony. The court denied Appellant’s motion on August 18, 2017. The court, however, allowed Appellant to present an after

- discovered evidence claim in his response toJ

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the Rule 90 7 notice and extended the time for filing a Rule 907 notice response. On September 11, 2017, Appellant filed a response to Rule 907 notice. In the September 11 th filing, Appellant alleged Mr. Carbone recanted his trial testimony that he had been threaten ed or coerced to retract his grand jury testimony. Appellant appended to his September 11 th filing an affidavit of Mr. Carbone. On September 13, 2017, the PCRA court dismissed Appellant’s PCRA petition. On September 29, 2017, Appellant timely filed a p ro se notice of appeal and request for counsel. The PCRA court appointed new counsel on October 30, 2017. The PCRA court ordered Appellant on November 2, 2017, to file a concise statement of errors complained of on appeal per Pa.R.A.P. 1925(b); Appellant failed to comply. Nevertheless, the PCRA court issued a Rule 1925(a) opinion on December 1, 2017. On December 8, 2017, counsel sent a letter to the PCRA court explaining he did not file a Rule 1925(b) statement on behalf of Appellant, because counsel be lieved he had a potential conflict of interest in representing Appellant. Despite his perceived conflict of interest, counsel filed in this Court a brief on behalf of Appellant. We returned this matter briefly to the PCRA court with instructions for the court to appoint new counsel for Appellant and order counsel to file a Rule 1925(b) statement. We gave the PCRA court 30 days after receipt of Appellant’s compliant Rule 1925(b) statement to prepare a responsive opinion, pursuant to Rule 1925(a), and tra nsmit the certified record to thisJ

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Court along with all new documents certified as part of that record. We have received the necessary documents as part of the certified record and now proceed with the appeal. Appellant raises the following issues for o ur review: WHETHER TRIAL COUNSE L WAS INEFFECTIVE FO R FAILING TO OBJECT TO THE PROSECUTION’S U SE OF UNSUBSTANTIATED CLAI MS OF WITNESS INTIMI DATION BY APPELLANT[?] WHETHER TRIAL COUNSE L WAS INEFFECTIVE FO R FAILING TO OBJECT TO OR PLACE ON THE REC ORD THAT TH E COMMONWEALTH USED ITS PEREMPTORY JURY STRIKES IN A RACIALL Y DISCRIMINATORY MAN NER[?] WHETHER APPELLANT’S [DIRECT APPEAL] COUN SEL WAS INEFFECTIVE FOR FAIL ING TO PROPERLY SPEC IFY WHAT ELEMENTS OF THE OFFE NSE HAD NOT BEEN MET IN THE [RULE] 1925(B) STATE MEN T OF ERRORS[?] WHETHER APPELLANT IS ENTITLED TO A NEW T RIAL BASED UPON DUE PROCE SS VIOLATIONS WHEN A FTER DISCOVERED EXCULPATO RY EVIDENCE WHICH WA S UNAVAILABLE AT THE T IME OF TRIAL[?] (Appellant’s Brief at 4). 2 Our standard of review of the denial of a PCRA petition is limited to examining whether the evidence of record supports the court’s determination and whether its decision is free of legal error. Commonwealth v. Conway , 14 A.3d 101, 108 (Pa.Super. 2011), appeal denied , 612 Pa. 687, 29 A.3d 795 (2 011). This Court grants great deference

2 Appellant also claims the PCRA court should have conducted an evidentiary hearing before it dismissed his PCRA petiti on. ( See Rule 1925(b) Statement, filed December 20, 2018).J

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to the findings of the PCRA court if the record contains any support for those findings. Commonwealth v. Boyd , 923 A.2d 513, 515 (Pa.Super. 2007), appeal denied , 593 Pa. 754, 932 A.2d 74 (2007). We give no such de ference, however, to the court’s legal conclusions. Commonwealth v. Ford , 44 A.3d 1190, 1194 (Pa.Super. 2012). The PCRA court findings will not be disturbed if the certified record supports the court’s findings. Commonwealth v. Taylor , 933 A.2d 1035, 10 40 (Pa.Super. 2007), appeal denied , 597 Pa. 715, 951 A.2d 1163 (2008). Further, a petitioner is not entitled to a PCRA hearing as a matter of right; the PCRA court can decline to hold a hearing if there is no genuine issue concerning any material fact, th e petitioner is not entitled to PCRA relief, and no purpose would be served by any further proceedings. Commonwealth v. Wah , 42 A.3d 335, 338 (Pa.Super. 2012) ; Pa.R.Crim.P. 907. After a thorough review of the record, the briefs of the parties, applicab le law, and the well

- reasoned opinion of the Honorable Wendy Demchick Alloy, we conclude Appellant’s issues merit no relief. The PCRA court opinion discusses and properly disposes of the questions presented. ( See PCRA Court Opinion, filed January 8, 2019 , at 7

- 35 ) (finding : (3) trial evidence was sufficient to allow jury to convict Appellant of first

- degree murder, conspiracy to commit murder, and solicitation to commit murder; underlying claim that evidence was not sufficient to convict Appellant lacked arguable merit; therefore, Appellant ’s claim direct appeal counsel renderedJ

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ineffective assistance fails; (1) at trial, Commonwealth did not accuse Appellant of witness intimidation; Mr . Carbone repeatedly blurted out that he feared for his life and lives of his family, but his statements were not responsive to any questions Commonwealth posed; exchange between Commonwealth and Mr. Carbone made clear Commonwealth did not intend to or expect Mr. Carbone to testify as he did; Commonwealth noted Mr. Carbone’s demeanor became erratic when Appellant’s brother entered courtroom; Mr. Carbone at no time stated , however, that Appellant or anyone associated with Appellant threatened him or threatened to harm his family; no reasonable pretrial investigation could have enabled trial counsel to anticipate Mr. Carbone’s sudden outburst s ; further, trial counsel elicited from Mr. Carbone on cross

- examination that Mr. Carbone did not believe Appellant paid Bruce Wood s to kill anyone, which supported Appellant’s defense; (4) s tatements in Mr. Carbone’s affidavit are consistent with his trial testimony; moreover, even if Mr. Carbone had recanted his trial testimony , his testimony cannot be expunged from record and would remain relevant and admissible to test Mr. Ca rbone’s veraci ty at new trial; new trial would not rectify alleged harm Mr. Carbone’s testimony caused at first trial; facts before jury at new trial would not be materially different from facts adduced at first trial , and new trial jury would likely also learn Mr. Carb one had changed his testimony because he feared retaliation; further, exchange between p rosecutor and Mr. Carbone at first trial did not prejudice AppellantJ

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in comp arison to likely exchange between Commonwealth and Mr. Carbone
at retrial ; (2) in his PCRA p etition, Appellant failed to plead sufficient facts or point to any direct evidence to prove purposeful discrimination on behalf of Commonwealth in selecting jury; therefore, Appellant’s discriminatory jury selection claim fails ; based on foregoing, eviden tiary hearing was unnecessary, because Appellant’s PCRA petition raised no genuine issues of material fact and hearing would have served no purpose ). The record supports the PCRA court’s rationale. Accordingly, we affirm on the basis of the PCRA court op inion. Order affirmed. Judge Platt did not participate in the consideration or decision of this

case. Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 2/26/19Circulated 02/13/2019 01:52 PM