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

v.
EDWIN MARQUEZ

Appellant : : : : : : : : : IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 3568 EDA 2019 Appeal from the PCRA Order Entered December 3, 2019 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP

- 51

- CR

- 0904661

- 2005

BEFORE: NICHOLS, J., McCAFFERY, J., and FORD ELLIOTT, P.J.E. MEMORANDUM BY NICHOLS, J.: F iled: October 1, 2020 Appellant Edwin Marquez 1 appeals from the order dismissing his timely first petition under the Post Conviction Relief Act (PCRA). 2 On appeal, Appellant claims that trial counsel was ineffective for failing to cha llenge the weight of the evidence issue after his trial and in his direct appeal. We affirm. The PCRA court set forth the relevant facts of this appeal as follows: On May 22, 2005, Appellant and his brother, Carlos Jiminez [ ( Codefendant ) ], arrived home after going to a nearby store and found three men inside their shared residence. A struggle ensued during which one of the three intruders had a handgun taken from him by [ Codefendant ], who did not tell police about having taken the firearm. The intrude rs then fled. Two days later, Carlos Alicea [(the victim)] was at bus stop located at 5th and Cambria Streets waiting for a bus with some family

_________________ __________ ______ ____ _______ 1 It appears that Appellant’s full name is Edwin Marquez Jimenez. See N.T. Trial , 11/2/06, at 64.

2 42 Pa.C.S. §§ 9541

- 9456.J

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members when Appellant walked by in the company of another male. Appellant was talking on a cell phone and wa s overheard saying, “He is here, he is in the store[,]” all the while imploring the person to whom he was speaking to hurry up and get there. Apparently, Appellant believed that [the victim] was one of the men who had entered his home two days prior there to. When the phone call ended, Appellant followed [the victim] into a store and grabbed and punched him after which he and [the victim] began struggling. Eventually, both men made their way outside where Appellant gained control of [the victim]. Immedia tely thereafter, [ Codefendant ], who had just driven to the area, quickly ran up to [the victim] and Appellant. When he reached them, [ Codefendant ] shot [the victim] in the chest from close range with the gun confiscated from one of the intruders two days earlier. When he was shot, [the victim] was firmly in Appellant’s grasp and completely under his control. After [ Codefendant ] shot [the victim], Appellant let [the victim] go at which time [Codefendant ] fired a second shot at [the victim], who fell to t he ground. [ Codefendant ] then walked over to [the victim] and fired a third shot at him. [ 3 ] Both Appellant and [ Codefendant ] fled the scene and eventually went to Florida where they were arrested in June of 200 [5]. [The victim] was taken to a nearby ho spital where he was pronounced dead shortly after arrival. An autopsy of his body revealed that he died as a result of two gunshot wounds to his torso that caused damage to his he a rt, lungs, and liver. PCRA Ct. Op., 12/10/19, at 2

- 3. On November 6, 2006 , a jury found Appellant guilty of third

- degree murder and criminal conspiracy. On January 18, 2007, the trial court sentenced Appellant to seventeen

- and

- a - half to thirty

- five years ’ imprisonment for murder and a concurrent term of ten to twenty years ’
im prisonment for conspiracy. Trial counsel did not file a post

- sentence motion

_________________ __________ ______ ____ _______ 3 At some point during the incident, Codefendant also apparently shot Appellant through the wrist or hand. N.T. Trial , 11/2/06, at 91

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on Appellant’s behalf or otherwise preserve a challenge to the weight of the evidence, but filed a direct appeal to this Court challenging , in relevant part, the sufficiency of t he evidence. 4 On August 31, 2009, an en banc panel of this Court rejected Appellant’s sufficiency claims and affirmed the judgment of sentence. 5 Commonwealth v. Marquez , 980 A.2d 145 (Pa. Super. 2009) ( en banc ). On December 29, 2009, our Supreme Court de nied Appellant’s petition for allowance of appeal. Commonwealth v. Marquez , 987 A.2d 160 (Pa. 2009). On August 17, 2011, Appellant filed his first PCRA petition pro se . See
Pro S e Pet. for PCRA Relief, 8/17/11. The PCRA court appointed David S. Rudenstein, E sq. , as counsel for Appellant. On October 23, 2017, Attorney

_________________ __________ ______ ____ _______ 4 Lee Mandell, Esq. (trial counsel) represented Appellant at trial and in the direct appeal.

5 Specifically, in reviewing Appellant’s sufficiency claim , this Court concluded : “From the Commonwealth’s evidence, the jury could infer that [App ellant] acted with malice by seeking out the [victim] , calling someone to let them know that ‘he is here,’ and holding the [victim] in a headlock until after [Codefendant] shot him.” Marquez , 980 A.2d at 149. This Court further stated that “ [t]he web of circumstantial evidence, taken as a whole, points to the existence of a criminal conspiracy carried out by the two brothers.” Id. at 150. Judge Klein and Judge Cleland filed separate concurring and dissenting opinions. See id. at 151 (Klein , J. concurring and dissenting) (stating that while “the record established that some type of conspiracy did exist[,] . . . it [was] pure conjecture to conclude that [Appellant] and [Codefendant] shared any intent other than to assault the victim”) ; id. at 154

- 55 (Cleland, J. concurring and dissenting).J

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Rudenstein filed a motion to withdraw and a Turner / Finley 6 letter asserting that Appellant’s petition was untimely filed and presented no issues of arguable merit . On February 6, 2018, the PCRA court granted Attorney Rude nstein’s motion to withdraw, but dismissed Appellant’s PCRA petition on the merits. 7 Appellant appealed the dismissal of his PCRA petition to this Court. Upon review, this Court concluded that the PCRA court “should not have permitted counsel to withdraw . . . .” Commonwealth v. Marquez , 790 EDA 2018, 2019 WL 1896548 , * 2 (Pa. Super. filed Apr. 29, 2019) (unpublished mem.). Accordingly, this Court vacated the denial of Appellant’s PCRA petition, remanded the matter to the PCRA court, and directed that new counsel be appointed for Appellant. Id.

_________________ __________ ______ ____ _______ 6 Commonwealth v. Turner , 544 A.2d 927 (Pa. 1988) ; Commonwealth v. Finley , 550 A.2d 213 (Pa. Super. 1988) ( en banc ).

7 Appellant, in his initial pro se PCRA petition, acknowledged that he did not file his petition within the one

- year PCRA deadline

. Pro S e Pet. for PCRA Relief at 3

- 5

. However, Appellant attached to his pro se petition his correspondence with the trial court regarding his appeal. Additi onally, Appellant attached a letter from trial counsel stating that counsel forgot to inform Appellant of our Supreme Court’s denial of his petition for allowance of appeal. In its opinion, the PCRA court noted that “[a]lthough Appellant did not timely file his PCRA petition, the record clearly shows that direct appeal counsel failed to inform of him of the denial of his petition for allowance of appeal. Upon being informed of his denial, he filed his pro se PCRA petition within sixty days of learning of the denial thereby making the filing timely because he acted with due diligence.” PCRA Ct. Op., 3/28/18, at 2 n.2 (citation omitted).J

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On remand, the PCRA court appointed new PCRA counsel, and counsel filed the instant amended petition on May 21, 2019. See Am. Pet. f or PCRA Relief, 5/21/19. This petition claimed that trial counsel was ineffective for failing to challenge the weight of the evidence. Id. Specifically, Appellant asserted that the trial evidence failed to establish an agreement between Appellant and Codefendant to shoot the victim. Id. at 9. The PCRA court found that Appellant’s amended petition lacked merit and on October 16, 2019, issue d a Pa.R.Crim.P. 907 notice of intent to dismiss the petition without a hearing. See Notice Pursuant to Pa. Rule of Crim. P. 907, 10/16/19. Appellant did not respond. On December 3, 2019, the PCRA court dismissed Appellant’s amended petition without a hearing. That same day, Appellant filed a n otice of appeal. The PCRA court did not order the filing of a Pa.R.A.P. 1925(b) statement , but issued a Rule 1925(a) opinion on December 10, 2019. See PCRA Ct. Op., 12/10/19. On appeal, Appellant raises one i ssue for our review: Did the PCRA court err in dismissing Appellant’s PCRA [p]etition without a hearing when trial / direct appeal counsel was ineffective for failing to preserve a weight of the evidence issue as to all convictions and Appellant suffered prejudice because there was nothing tying Appellant to a conspiracy with [ Codefendant ] to shoot [the victim]? Appellant’s Brief at 4. Appellant asserts that trial counsel’s failure to preserve a weight of the evidence argument deprived the trial court o f its gatekeeping role whenJ

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considering whether he was entitled to a new trial. Id. at 16. Appellant argues that “[i]t is beyond rational belief that Appellant would somehow mentally agree with his Codefendant brother that Codefendant would shoot [the vi ctim] and Appellant. Appellant stood back and did not continue to restrain [the victim] while Codefendant shot.” Id. at 15. Further, Appellant notes that trial counsel challenged the sufficiency of the evidence in Appellant’s direct appeal and that at l east two judges of this Court believed the evidence was insufficient. 8 Id. at 5, 9, 15

- 16. According to Appellant, h ad the weight claim been preserved, Appellant would have been “ awarded a new trial by the trial court or on appeal. ” Id. at 16. More specifically, Appellant contends that “[t]here was nothing on the initial overheard telephone conversation wherein Appellant told [ Codefendant ] to bring a gun.” Id. at 15. Moreover, Appellant argues that “[w]itnesses testified [at trial] that when [ Codefendant ] arrived, Appellant stood back and did not co ntinue to restrain [the victim] .” Id. at 14. Appellant emphasizes that he “was also shot by [ Codefendant ] during the underlying incident.” Id.
at 15.

_________________ __________ ______ ____ _______ 8 Appellant references the concurring and dissenting opinions filed in this Court’s prior en banc decision affirming the judgment of sentence

. See Appellant’s Brief at 5, 9

. We note, however, that dissenting opini ons are not binding precedent. See Commonwealth v. Davis , 17 A.3d 390, 398 (Pa. Super. 2011) (stating the general rule that a decision lacks precedential value if it does not garner the support of a majority of the sitting judges); see also Conrad v. Dept. of Transportation, Bureau of Driver Licensing , 226 A.3d 1045, 1056 (Pa. Cmwlth . 2020) (stating that “a di ssenting opinion is not binding precedent ”).J

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Appellant further observes that “[ Codefendan t ] was convicted of a specific intent crime, first

- degree [m]u rder, while Appellant was not.” Id. Appellant argues that “[a] jury may render inconsistent [v]erdicts but the trial court should be able to address weight of the evidence issue i[f] a post

sentence [m]otion is filed and this was not done by [trial] counsel.” Id. Appellant insists that he “suffered prejudice because the [r]ecord and conviction are no[t] free from legal error in that Appellant's conviction is based upon speculation only” and constitutes a “miscarriage of justice.” 9 Id. at 16

- 17. Appellant concludes that “[t]here was a nea r presumption of guilt and no one, including Appellant, could foresee the crazed shooting initiated by [ Codefendant ].” Id. at 20. Ultimately, Appellant requests a remand for an evidentiary hearing to determine trial counsel’s ineffectiveness for failing to preserve and raise a weight of the evidence claim. Id. at 8. In the alternative, Appellant asserts that he is entitled to a new trial or an order vacat ing his judgment of sentence. Id. The Commonwealth responds that the “evidence plainly demonstrat ed that [Appellant] and [Codefendant] hunted the victim down in an act of revenge, and that [Appellant] both called [Codefendant] to the scene and held the victim in place for [Codefendant] to walk up to the victim a nd shoot him from close range.” Commonw ealth’s Brief at 10. The Commonwealth argues

_________________ __________ ______ ____ _______ 9 According to Appellant, “[i]f the shooting did not occur in a deprived part of Philadelphia, no one would presume that an individual would show up given the underlying facts and start shooting.” Appellant’s Brief at 16 (citations omitted).J

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that Appellant’s underlying weight of the evidence claim was meritless because “ [t] he jury was free to credit the Commonwealth’s evidence, which was based on several eyewitnesses, that [Appellant] was a direct and a ctive participant in the murder .” Id. The Commonwealth asserts “[t]here simply was no substantial countervailing evidence to his knowing and direct participation in the murder” and concludes “[t]he jury’s verdict was well supported by the evidence.” Id. at 18

- 19. Further , the Commonwealth no tes that there was no prejudice “as the PCRA court, which also had been the trial court, found [] it would have denied the proffered motion.” Id. at 11. The Commonwealth also asserts that there was no conflict between Codefendant’s conviction for first

- de gree murder and Appellant’s conviction for conspiracy and third

- degree murder. Id. at 18. The Commonwealth argues that Appellant “erroneously conflates the intent necessary to prove conspiracy with the intent necessary to prove murder in the first degree .” Id.
at 17. Specifically, the Commonwealth states that “ [c] onspiracy to commit murder in the third degree is a cognizable crime. It does not require a specific intent to kill.” Id. at 1 7

- 1 8 (citing Commonwealth v. Fisher , 80 A.3d 1186, 1195 (Pa. 2013) ( stating that “one does not conspire to commit a denominated offense, one conspires to engage in certain conduct”). The Commonwealth relies on Fisher for the proposition that “the act sufficient for third degree is still a purposeful one, committed with malice, which results in death.” Id. at 1 8 (quoting Fisher , 80 A.3d at 1191). Further, theJ

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Commonwealth argues that “[e]ven if the jury verdicts were inconsistent” there would be no “grounds to grant a new trial.” Id. at 19. This Court’s standard of review for the dismissal of a PCRA petition “is limited to examining whether the PCRA court’s determination is supported by the evidence of the record and whether it is free of legal error.” Commonwealth v. Ousley , 21 A.3d 1238, 1242 (Pa. Super. 2011) (citation omitted). “The PCRA court’s findings will not be disturbed unless there is no support for the findings in the certified record.” Commonwealth v. Lawson , 90 A.3d 1, 4 (Pa. Super. 2014) (citation s omitted). This Court reviews “the PCRA court’s legal conclusions de novo .” Commonwealth v. Miller , 102 A.3d 988, 992 (Pa. Super. 2014) (citation omitted). We start with the presumption that a PCRA petitioner’s trial counsel was effective. Commonwealth v. Williams , 732 A.2d 1 167, 1177 (Pa. 1999). To establish a claim of ineffective assistance of counsel, a PCRA petitioner “must show, by a preponderance of the evidence, ineffective assistance of counsel which, in the circumstances of the particular case, so undermined the
trut h

- determining process that no reliable adjudication of guilt or innocence could have taken place.” Commonwealth v. Turetsky , 925 A.2d 876, 880 (Pa. Super. 2007) (citation s omitted). The PCRA petitioner carries the burden to prove all three of the followi ng elements: “(1) the underlying claim is of arguable merit; (2) that counsel had no reasonable strategic basis for his or her action or inaction; and (3) but for the errors and omissions of counsel, there is a reasonable probability that theJ

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outcome of th e proceedings could have been different.” Id. (citation s omitted). “A claim of ineffectiveness may be denied by a showing that the petitioner’s evidence fails to meet any of these prongs.” Commonwealth v. Washington , 927 A.2d 586, 594 (Pa. 2007) (citati on s omitted). “The threshold inquiry in ineffectiveness claims is whether the issue/argument/tactic which counsel has foregone and which forms the basis for the assertion of ineffectiveness is of arguable merit

. Counsel cannot be found ineffective for f ailing to pursue a baseless or meritless claim.” Commonwealth v. Smith , 167 A.3d 782, 788 (Pa. Super. 2017) (citations omitted and formatting altered ), appeal denied , 179 A.3d 6 (Pa. 2018). “[B]oilerplate allegations and bald assertions of no reasonable basis and/or ensuing prejudice cannot satisfy a petitioner’s burden to prove that counsel was ineffective.” Commonwealth v. Paddy , 15 A.3d 431, 443 (Pa. 2011). It is well settled “[t]here is no absolute right to an evidentiary hearing on a PCRA petition, and if the PCRA court can determine from the record that no genuine issues of material fact exist, then a hearing is not necessary.” Commonwealth v. Jones , 942 A.2d 903, 906 (Pa. Super. 2008) (citation omitted)

. To obtain reversal of a PCRA court ’ s decision to dismiss a petition without a hearing, an appellant must show that he raised a genuine issue of fact which, if resolved in his favor, would have entitled h im to relief, or that the court otherwise abu sed its discretion in denying a hearing

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Commonwealth v. Hanible , 30 A.3d 426, 452 ( Pa. 2011) (citation omitted and formatting altered)

. This Court has stated that the following principles govern weight of the evidence claims: A claim alleging the verdict was against the weight of the evidence is addressed to the discretion of the trial court. Accordingly, an appellate court reviews the exercise of the trial court’s discretion; it does not answer for itself wh ether the verdict was against the weight of the evidence. It is well settled that the [fact

- finder] is free to believe all, part, or none of the evidence and to determine the credibility of the witnesses, and a new trial based on a weight of the evidence claim is only warranted where the [fact

- finder’s] verdict is so contrary to the evidence that it shocks one’s sense of justice. In determining whether this standard has been met, appellate review is limited to whether the trial judge’s discretion was prop erly exercised, and relief will only be granted where the facts and inferences of record disclose a palpable abuse of discretion.
Commonwealth v. Landis , 89 A.3d 694, 699 (Pa. Super. 2014) (citation omitted). Further, this Court has held that [a] new tria l should not be granted because of a mere conflict in the testimony or because the judge on the same facts would have arrived at a different conclusion. Rather, the role of the trial court is to determine that notwithstanding all the evidence, certain fac ts are so clearly of greater weight that to ignore them, or to give them equal weight with all the facts, is to deny justice. A motion for a new trial on the grounds that the verdict is contrary to the weight of the evidence concedes that there is suffici ent evidence to sustain the verdict; thus the trial court is under no obligation to view the evidence in the light most favorable to the verdict winner.
Id. (citation omitted).J

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A challenge to the weight of the evidence must be preserved in the trial court. Pa.R.Crim.P. 607 (A) . However, the failure to file a post

- sentence motion alone does not give rise to a presumption of prejudice. See Commonwealth v. Reaves , 923 A.2d 1119, 1131

- 32 (Pa. 2007). A petitioner must establish a reasonable probability that filing a post

- sentence motion would have led to a different outcome. See id. at 1131. Instantly, the PCRA court , which also presided over Appellant’s trial, concluded that “[r]elief was properly denied with respect to this claim because the evidenc e did not shock the conscience.” PCRA Ct. Op. at 6. The PCRA court explained its decision as follows: First, two witnesses testified that when his [ Codefendant ] arrived, Appellant had the victim in a headlock and that when the fatal shots were fired, Appellant still had hold of the victim

. [ Codefendant ] confirmed that when he shot the victim, Appellant ha d the victim in his grasp . In fact, Appellant suffered a gunshot wound to his arm during the incident thereby contradicting Appellant’s claim that he had stepped away from the victim when his brother approached and killed the victim. In addition, because Appellant

. . . called [ Codefendant ] imploring him to get to that location as fast as he could, the jury could reasonably find that Appellant and [ Codefendant ] shared the goal of making the victim pay for the break

- in. Although there was no evidence that Appellant told his brother to bring a gun, the jury could reasonably infer that Appellant knew that it was likely that [ Codefendant ] would bring a gun with him. Even if that was not the case, Appellant saw [ Codefendant ] arrive and approach the victim while visibly possessing a gun. As noted above, Appellant con tinued to restrain the victim as [ Codefendant ] approached with the gun visible in his hand. By not letting the victim go, Appellant manifested that he too had the intent to harm the victim.

. . . [T] he jury clearly understood that both crimes required dif ferent mental states by convicting Appellant only of third degree murderJ

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because the record failed to establish that Appellant shared the specific intent to kill the victim with [ Codefendant ]

. Id. at 7

- 8. Following our review, we agree with the PCRA court’ s conclusion that Appellant ’s weight of the evidence claim would not have warranted a new trial. We note that criminal conspiracy requires the Commonwealth to prove that

“ the defendant (1) entered into an agreement to commit or aid in an unlawful act with another person or persons, (2) with a shared criminal intent, and (3) an overt act done in furtherance of the conspiracy.” Commonwealth v. Brinker , 882 A.2d 1008, 1017 (P a. Super. 2005) (citation omitted). The conspiratorial agreement “can be inferred from a variety of circumstances including, but not limited to, the relation between the parties, knowledge of and participation in the crime, and the circumstances and condu ct of the parties surrounding the criminal episode.” Id. (citation omitted). Moreover, “[w]here the existence of a conspiracy is established, the law imposes upon a conspirator full responsibility for the natural and probable consequences of acts commit ted by his fellow conspirator or conspirators if such acts are done in pursuance of the common design or purpose of the conspiracy.” Fisher , 80 A.3d at 1192 (citation omitted)

. As our Supreme Court noted in Fisher , it is a conspiracy “to commit a bearing , which being carried out with the mental state of malice, [that] supports a charge of third degree murder

. ” Id. at 1195.J

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Instantly, Appellant ’s weight of the evidence claim relies on (1) the fact that he did not expressly tell Codefendant to bring a gun, (2) conflicting testimony about when Appellant released the victim around the time of the shooting , and (3) the fact that Codefendant also shot Appellant through the
wrist

. However, i n addition to the evidence suggesting that Appellant ca lled Codefendant before attacking the victim, one of the eyewitness es , Anthony
Fox , testified that while Appellant was restraining the victim in a “headlock” or “full nelson,” Codefendant arrived at the scene with a semiautomatic pistol

. See N.T. Trial , 1 1/1/06, at 44

- 47. Specifically, Fox testified that Codefendant

was openly carrying a pistol, loaded the pistol by pulling back the slide, approached to within arm ’s length of the victim, and then fired the first shot into the victim’s chest while standing in front of the victim. See id. According to Fox, Appellant , who Fox described as taller and heavier than the victim, was behind the victim and only released the victim after Codefendant fired the first shot. Id. at 45

- 46.
B ased on our review of the record, we agree with the PCRA court that the jury was entitled to resolve the inconsistencies in the evidence highlighted by Appellant. See Landis , 89 A.3d at 699. We also agree with the PCRA
court that the jury’s findings did not shock one’s sense of j ustice

. See id . A s noted by the PCRA court, there was reasoned bas i s for the jury to conclude that (1) Appellant and Codefendant initially entered into an agreement to attack the victim , (2) A ppellant acted with malice when he continued to restrain the victim as Codefendant approached with the gun and shot theJ

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victim at close range , and (3 ) the victim’s death was a natural and probable
consequence of Appellant’s and Codefendant’s actions taken in pursuance of their criminal agreement

. See Fisher , 8 0 A.3d at 1192, 1195; Brinker , 882 A.2d at 1017

. It was not the role of the trial court, or this Court in a direct appeal, to grant a new trial merely because it would have arrived at a different conclusion. See Landis , 89 A.3d at 699. To the extent Appellant relies on Codefendant’s conviction for first

degree murder as support for his weight claim , we find this argument to be meritless. Specifically , the jury heard evidence that Codefendant possessed the gun and shot the victim at least one time whi le Appellant was restraining the victim. Codefendant ultimately fired multiple shots, and Fox testified that Codefendant fired the final shot after the victim fell to the ground

. See N.T. Trial , 11/1/06, at 48. Based on this record , we find no inconsist ency between Codefendant’s conviction for first

- degree murder and Appellant’s conviction for third

- degree murder as would support Appellant’s request for a new trial.
In sum , we find that the record support s the PCRA court’s conclusion that Appellant’s proposed weight of the evidence claim would not have resulted in a new trial. 10 See Reaves , 923 A.2d at 1131

- 32; Ousley , 21 A.3d

_________________ __________ ______ ____ _______ 10 We a cknowledge that the PCRA court’s opinion refers to Appellant making a phone call after accosting the victim inside the store. See PCRA Ct. Op., 12/10/19, at 7. The record, however, established that Appellant made th e phone call before entering the store. See N.T. Trial , 10/31/06, at 106

- 07 , 147 ; N.T. Trial , 11/1/06, at 15

. Further, we do not agree with the PCRA court’s suggestion that Appellant’s intent to harm the victim alone would haveJ

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at 1242. Therefore, Appellant failed to establish prejud ice resulting from his

c laim that trial counsel was ineffective for preserving a weight of the evidence claim

. See Reaves , 923 A.2d at 1131

- 32; Turetsky , 925 A.2d at 880. Lastly, Appellant has not shown a genuine issue of fact warranting an evidentiary hearing. See Jones , 942 A.2d at 906. Accordingly, for the foregoing reasons, we find no abuse of discretion or error of law in th e PCRA court’s decision to dismiss Appellant’s amended PCRA petition without a hearing , we affirm

. See Ousley , 21 A.3d at 1242; Jones , 942 A.2d at 906. Order affirmed. Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 10/ 1/20

_________________ __________ ______ ____ _______ established his liability for third

- degree murder. See Fisher , 80 A.3d at 1195

. However, for the reasons stated herein, the PCRA court’s statement s regarding the timing of Appellant’s phone call or his intent do not affect the overall soundness of its conclusion tha t Appellant would not have been entitled to a new trial based on his weight claim.