J-S53034-18

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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

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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 

Montgomery 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 July 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 shooting 

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. 
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hearing, because he led Mr. 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 (“LWOP”). 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2014) (unpublished memorandum), appeal denied, 632 Pa. 662, 116 A.3d 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 additional 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 to 
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the Rule 907 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 11th filing, Appellant alleged Mr. Carbone recanted 

his trial testimony that he had been threatened or coerced to retract his 

grand jury testimony. Appellant appended to his September 11th 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 pro 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 believed 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 transmit the certified record to this 
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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 our review:

WHETHER TRIAL COUNSEL WAS INEFFECTIVE FOR 

FAILING TO OBJECT TO THE PROSECUTION’S USE OF 

UNSUBSTANTIATED CLAIMS OF WITNESS INTIMIDATION 

BY APPELLANT[?]

WHETHER TRIAL COUNSEL WAS INEFFECTIVE FOR 

FAILING TO OBJECT TO OR PLACE ON THE RECORD THAT 

THE COMMONWEALTH USED ITS PEREMPTORY JURY 

STRIKES IN A RACIALLY DISCRIMINATORY MANNER[?]

WHETHER APPELLANT’S [DIRECT APPEAL] COUNSEL WAS 

INEFFECTIVE FOR FAILING TO PROPERLY SPECIFY WHAT 

ELEMENTS OF THE OFFENSE HAD NOT BEEN MET IN THE 

[RULE] 1925(B) STATEMENT OF ERRORS[?]

WHETHER APPELLANT IS ENTITLED TO A NEW TRIAL 

BASED UPON DUE PROCESS VIOLATIONS WHEN AFTER 

DISCOVERED EXCULPATORY EVIDENCE WHICH WAS 

UNAVAILABLE AT THE TIME 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 (2011). This Court grants great deference 

 

2 Appellant also claims the PCRA court should have conducted an evidentiary 

hearing before it dismissed his PCRA petition. (See Rule 1925(b) 

Statement, filed December 20, 2018). 
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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 

deference, 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, 1040 (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, 

the 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, 

applicable 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 rendered 
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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 outbursts; further, trial counsel elicited 

from Mr. Carbone on cross-examination that Mr. Carbone did not believe 

Appellant paid Bruce Woods to kill anyone, which supported Appellant’s 

defense; (4) statements 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. Carbone’s veracity 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. Carbone 

had changed his testimony because he feared retaliation; further, exchange 

between prosecutor and Mr. Carbone at first trial did not prejudice Appellant
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in comparison to likely exchange between Commonwealth and Mr. Carbone

at retrial; (2) in his PCRA petition, 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, evidentiary 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 opinion.

Order affirmed. 

Judge Platt did not participate in the consideration or decision of this 

case.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

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