J-A05045-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

GEORGE GILLARD 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 170 EDA 2022

Appeal from the PCRA Order Entered December 9, 2021

In the Court of Common Pleas of Philadelphia County

Criminal Division at CP-51-CR-0010234-2010

BEFORE: LAZARUS, J., KUNSELMAN, J., and MURRAY, J.

MEMORANDUM BY MURRAY, J.: FILED APRIL 21, 2023

George Gillard (Appellant) appeals from the order dismissing his first 

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

§§ 9541–9546. We affirm.

On May 13, 2013, Appellant entered a negotiated guilty plea to one 

count each of aggravated assault, conspiracy, and possession of an instrument 

of crime (PIC).1 See Commonwealth v. Gillard, 612 EDA 2018, at *1 (Pa. 

Super. Aug. 15, 2019) (unpublished memorandum). The trial court imposed 

the negotiated sentence of 111⁄2 ─ 23 months of incarceration, followed by 7 

years of probation. Id.; see also N.T., 10/7/16, at 5; N.T., 1/5/17, at 13-

15.

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1 18 Pa.C.S.A. §§ 2702(a), 903, and 907(a).
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Approximately two years later, Appellant was on probation when police 

arrested him in Delaware County and charged him with four counts of 

possessing heroin with intent to deliver (PWID).

2

 Gillard, supra at *1-2. On 

June 30, 2015, Appellant pled guilty to the PWID charges, and the trial court 

sentenced him to 18 – 36 months of incarceration, followed by one year of 

probation. Id.

The trial court in the instant case held a violation of probation (VOP) 

hearing on October 7, 2016. The trial court found Appellant violated the terms 

of probation. Following receipt of a pre-sentence investigation report (PSI), 

the trial court re-sentenced Appellant, on January 5, 2017, to an aggregate 6 

— 14 years of incarceration. Id.; see also N.T., 1/5/17, at 11. Appellant 

filed a motion for reconsideration, which the trial court denied.

On April 25, 2017, Appellant pro se filed an untimely notice of appeal, 

which this Court quashed. Id. On December 4, 2017, Appellant filed a 

counseled PCRA petition seeking reinstatement of his right to appeal nunc pro 

tunc. Id. The PCRA court granted the petition and Appellant appealed to this 

Court. Appellant claimed his aggregate 6 — 14 year sentence was excessive, 

and that he was prejudiced by the trial court’s “untimely revocation of 

probation and sentencing.” Id. at *5. This Court found no merit to the claims, 

and affirmed the judgment of sentence.

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2 35 P.S. § 780-1130(a)(30).
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Appellant pro se filed a PCRA petition on January 29, 2020. The PCRA 

court appointed counsel, who filed an amended petition on August 25, 2020. 

On December 12, 2020, PCRA counsel withdrew, and Appellant’s current 

counsel entered his appearance. Counsel filed a supplemental PCRA petition 

on April 21, 2021. On October 14, 2021, the PCRA court issued Pa.R.Crim.P. 

907 notice of intent to dismiss the petition without a hearing. Appellant did 

not file a response. The PCRA court dismissed the petition on December 9, 

2021. This timely appeal followed.3 

Appellant presents four issues for review:

1. [Whether the PCRA court erred in not f]inding ... Appellant’s 

counsel ... ineffective for not presenting that the [VOP] hearing 

was untimely; and, therefore, revocation unwarranted[?]

2. [Whether the PCRA court erred in not f]inding that counsel was 

ineffective at the time of sentencing for [Appellant’s VOP?]

3. [Whether the PCRA court erred in not f]inding that [appellate] 

counsel was ineffective for failing to comply with Pa.R.A.P. 

2119(f), and failing to correct or request correction, reargument or reconsideration when this Honorable Court stated 

Appellant had been incarcerated throughout the pendency of 

the proceedings[?]

4. [Whether the PCRA court erred in n]ot holding an evidentiary 

hearing before dismissing Appellant’s PCRA claims[?]

Appellant’s Brief at 5.4 

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3 Appellant and the PCRA court have complied with Pa.R.A.P. 1925.

4

In his third issue, Appellant repeats his first and second issues as to appellate 

rather than VOP counsel. See Appellant’s Brief at 16-23. We address

Appellant’s claims of counsels’ ineffectiveness together.
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We review the PCRA court’s denial of relief by “examining whether the 

PCRA court’s findings of fact are supported by the record, and whether its 

conclusions of law are free from legal error.” Commonwealth v. Busanet, 

54 A.3d 35, 45 (Pa. 2012). “Our scope of review is limited to the findings of 

the PCRA court and the evidence of record, viewed in the light most favorable 

to the party who prevailed in the PCRA court proceeding.” Id.

[T]he PCRA court has the discretion to dismiss a petition without 

a hearing when the court is satisfied “that there are no genuine 

issues concerning any material fact, the defendant is not entitled 

to post-conviction collateral relief, and no legitimate purpose 

would be served by any further proceedings.” Pa.R.Crim.P. 

909(B)(2). “[T]o 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 him to relief, or that the court otherwise 

abused its discretion in denying a hearing.” Commonwealth v. 

D’Amato, 856 A.2d 806, 820 (Pa. 2004).

Commonwealth v. Hanible, 30 A.3d 426, 452 (Pa. 2011).

Appellant claims that VOP and appellate counsel were ineffective. The 

Pennsylvania Supreme Court explained:

It is well-settled that counsel is presumed to have been effective 

and that the petitioner bears the burden of proving counsel’s 

alleged ineffectiveness. Commonwealth v. Cooper, 941 A.2d 

655, 664 (Pa. 2007). To overcome this presumption, a petitioner 

must establish that: (1) the underlying substantive claim has 

arguable merit; (2) counsel did not have a reasonable basis for 

his or her act or omission; and (3) the petitioner suffered 

prejudice as a result of counsel’s deficient performance, “that is, 

a reasonable probability that but for counsel’s act or omission, the 

outcome of the proceeding would have been different.” Id. A 

PCRA petitioner must address each of these prongs on appeal. 

See Commonwealth v. Natividad, 938 A.2d 310, 322 (Pa. 

2007) (explaining that “appellants continue to bear the burden of 

pleading and proving each of the Pierce elements on appeal to 
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this Court”). A petitioner’s failure to satisfy any prong of this test 

is fatal to the claim. Cooper, 941 A.2d at 664.

Commonwealth v. Wholaver, 177 A.3d 136, 144 (Pa. 2018) (citations 

modified). “Counsel cannot be found ineffective for failing to pursue a 

baseless or meritless claim.” Commonwealth v. Taylor, 933 A.2d 1035, 

1042 (Pa. Super. 2007) (citation omitted). With respect to ineffective 

assistance of appellate counsel, “the petitioner must show that there is a 

reasonable probability that the outcome of the direct appeal proceeding would 

have been different but for counsel’s deficient performance.” 

Commonwealth v. Blakeney, 108 A.3d 739, 750 (Pa. 2014). 

Appellant first asserts VOP counsel was ineffective for “failing to litigate” 

the claim that his VOP hearing was untimely. Appellant’s Brief at 16-17. He 

also asserts appellate counsel was ineffective for failing to “request correction, 

re-argument or reconsideration by the Superior Court” of our determination 

that Appellant was incarcerated during the delay and did not suffer “prejudice

due to the delay in proceedings.” Id. at 22-23.

The record confirms VOP counsel did not raise the timeliness issue at 

the VOP hearing. N.T., 10/7/16, at 1-9. However, appellate counsel raised 

the issue on appeal. We stated:

Appellant contends that Appellant suffered prejudice due to the 

trial court’s untimely revocation of probation and sentencing. 

(Appellant’s Brief at 11-12.) ...

[Pennsylvania Rule of Criminal Procedure] 708 provides in 

relevant part:
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(B) Whenever a defendant has been sentenced to probation 

or intermediate punishment, or placed on parole, the judge 

shall not revoke such probation, intermediate punishment, 

or parole as allowed by law unless there has been:

(1) a hearing held as speedily as possible at which 

the defendant is present and represented by counsel; 

and

(2) a finding of record that the defendant violated a 

condition of probation, intermediate punishment, or 

parole.

Pa.R.Crim.P. 708(B)(1), (2).

The language “speedily as possible” has been interpreted to 

require a hearing within a reasonable time. 

Commonwealth v. Saunders, [ ] 575 A.2d 936, 938 ([Pa.

Super.] 1990). Rule 708 does not establish a presumptive 

period in which the Commonwealth must revoke probation; 

but instead, the question is whether the delay was 

reasonable under the circumstances of the specific 

case and whether the appellant was prejudiced by the 

delay. Commonwealth v. McCain, [] 467 A.2d 382, 383 

([Pa. Super.] 1983). The relevant period of delay is 

calculated from the date of conviction or entry of guilty plea 

to the date of the violation hearing. Id.

In evaluating the reasonableness of a delay, the court 

examines three factors: the length of the delay; the reasons 

for the delay; and the prejudice resulting to the defendant 

from the delay. Saunders, supra. The court must analyze 

the circumstances surrounding the delay to determine if the 

Commonwealth acted with diligence in scheduling the 

revocation hearing. Commonwealth v. Bischof, [ ] 616 

A.2d 6, 8 ([Pa. Super.] 1992). Prejudice in this context 

compromises the loss of essential witnesses or evidence, the 

absence of which would obfuscate the determination of 

whether probation was violated, or unnecessary restraint of 

personal liberty. Commonwealth v. Marchesano, [ ] 544 

A.2d 1333, 1336 ([Pa.] 1988).

Commonwealth v. Clark, 847 A.2d 122, 123-124 (Pa. Super. 

2004).
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Here, Appellant pled guilty to PWID in Delaware County on 

June 30, 2015. The trial court did not hold Appellant’s VOP 

hearing until October 7, 2016. The record, however, reflects that 

Appellant was incarcerated for the entire period of the delay as a 

result of the PWID conviction. (See Trial Court Opinion, 8/15/18 

at 2.) Moreover, Appellant did not dispute that he violated his 

probation. (Notes of Testimony, 10/7/16 at 6.) Therefore, we 

find that Appellant was not prejudiced due to an inability to 

present witnesses on his behalf, nor did he suffer any prejudice 

due to a loss of personal liberty. See Commonwealth v. 

Christmas, 995 A.2d 1259, 1264 (Pa. Super. 2010), appeal 

denied, 53 A.3d 756 (Pa. 2012).

Commonwealth v. Gillard, supra at *2-3 (emphasis added).

Appellant argues this Court’s disposition was incorrect because 

“Appellant had already served his minimum sentence and been paroled by the 

State of Pennsylvania (for his Delaware County case) prior to the instant 

violation of probation sentencing hearing.” Appellant’s Brief at 16

(emphasis added). He claims both VOP and appellate counsel were ineffective 

for not arguing his timeliness claim on this basis. Id. at 16-17, 22-23. 

As stated above, the “the relevant period of delay is calculated from the 

date of conviction or entry of guilty plea to the date of the violation hearing.” 

Clark, supra at 124 (emphasis added). Appellant was sentenced to 18 — 36 

months of incarceration in Delaware County on June 30, 2015. The VOP 

hearing was October 7, 2016. Regardless of whether Appellant was 

incarcerated during that time, the PCRA court explained:

Only upon the resolution of the Delaware County case and 

[Appellant’s] subsequent incarceration was this court able to 

schedule the VOP hearing. The total delay was 15 months and 7 
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days. [Appellant] has not offered any evidence that this delay 

prejudiced him in his VOP sentencing.

* * *

Regarding appellate counsel’s failure to correct this [c]ourt 

pertaining to [Appellant’s] incarceration and parole, [Appellant] is 

misguided. This claim arises out of an alleged misunderstanding 

on behalf of this [c]ourt and the Superior Court regarding 

[Appellant’s] parole on his Delaware County case. This [c]ourt

stated that [Appellant] was continuously incarcerated following his 

Delaware County case through the VOP hearing. Amended 

Petition, at 5. [Appellant] claims that he was released on parole 

from his Delaware County case at the time of the initial VOP 

hearing. This is incorrect. The first VOP hearing was held on 

October 7, 2016, when probation was revoked. [Appellant] was 

not released on parole until November 19, 2016, according to his 

Appellate Brief. At that time, he was taken into custody for the 

revocation of his probation. The sentencing hearing was then held 

on January 5, 2017, less than two months following [Appellant’s] 

reincarceration. At the time the Superior Court held that 

[Appellant’s] VOP hearing was timely they were aware of the 

parole and reincarceration.

PCRA Court Opinion, 4/7/22, at 11, 12-13. 

Accordingly, Appellant’s timeliness issue lacks merit. Neither VOP 

counsel nor appellate counsel were ineffective for failing to litigate or seek

reconsideration of this non-meritorious claim. See Taylor, supra.

Next, Appellant argues VOP counsel was ineffective at sentencing for 

failing to present mitigation evidence and call Appellant’s family members to 

speak on his behalf. Appellant’s Brief at 20. Appellant also asserts:

Appellant’s counsel failed to state that Appellant had already been 

granted parole and released from custody for the Delaware County 

Case due to the delay in proceedings. Appellant’s counsel did not 

specify that Appellant had subsequently been taken back into 

custody by Philadelphia Adult Probation & Parole while reporting 
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to the department as required. See Gagnon II Summary dated 

12/1/2016.

Id. 

With respect to appellate counsel, Appellant argues counsel was 

ineffective for failing to comply with Pa.R.A.P. 2119(f) and causing this Court 

to find Appellant waived his discretionary aspects of sentence claim. Id. at 

22.

To succeed on an ineffectiveness claim involving preservation of a

discretionary aspects of sentencing issue, a PCRA petitioner must demonstrate 

that the underlying sentencing issue has merit. See Commonwealth v. 

Jones, 942 A.2d 903, 906 (Pa. Super. 2008) (“[I]f the PCRA court can 

determine from the record that the sentence was not excessive ... then there 

is no underlying merit to the ineffectiveness claim and the claim must fail.”); 

see also Commonwealth v. Reaves, 923 A.2d 1119, 1131-32 (Pa. 2007) 

(claim of ineffectiveness for failure to preserve discretionary sentencing issue 

requires showing of reasonable probability that sentencing court would have 

imposed lesser sentence). “Sentencing is a matter vested in the sound 

discretion of the sentencing judge, and a sentence will not be disturbed on 

appeal absent a manifest abuse of discretion.” Commonwealth v. Barnes, 

167 A.3d 110, 122 n.9 (Pa. Super. 2017) (en banc).

In addition, to prove counsel was ineffective for failing to call a witness, 

a petitioner must demonstrate:
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(1) the witness existed; (2) the witness was available to testify 

for the defense; (3) counsel knew of, or should have known of, 

the existence of the witness; (4) the witness was willing to testify 

for the defense; and (5) the absence of the testimony of the 

witness was so prejudicial as to have denied the defendant a fair 

trial.

Commonwealth v. Brown, 196 A.3d 130, 167 (Pa. 2018).

The record belies Appellant’s claims of VOP counsel’s ineffectiveness for 

failing to present mitigation evidence and call witnesses to speak on 

Appellant’s behalf at sentencing. See generally, N.T., 1/5/17, at 4-18. 

VOP counsel presented mitigating evidence. Counsel emphasized 

Appellant’s supportive family. Id. at 5. Counsel further highlighted the good 

relationship Appellant had with his probation officer; his minimal criminal 

history; his lack of probation violations other than his Delaware County case; 

his completion of programs while incarcerated; his acceptance of 

responsibility; his youth; his employment history; and his responsibility for 

parenting his young children and co-parenting two stepsons. Id. at 11-13.

As to calling witnesses, the record indicates VOP counsel spoke to 

Appellant’s family prior to sentencing because counsel was aware “there [was] 

one person who wanted to speak.” Id. at 4. Counsel noted Appellant had 14 

family members present at a prior listing of the case, and 6 - 8 family 

members present at sentencing. Id. at 12. Counsel stated that Appellant’s 

“aunt, who is a Philadelphia police officer, did want to speak. Unfortunately, 

she has not yet made it.” Id. Counsel presented Appellant to speak on his 

behalf, after which the trial court asked counsel if she had anything further. 
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Id. at 15. When counsel said she did not, the court asked, “None of the people 

that are here today want to say anything on his behalf?” Id. at 16. Although 

counsel then asked if “anyone else want[ed] to speak?”, there no response. 

Id. Appellant has not demonstrated VOP counsel’s ineffectiveness.

The trial court stated:

I reviewed the presentence report. I reviewed the guilty plea

colloquy .... [Appellant] got an enormous break with his 

negotiated plea. There were other charges, more serious charges,

equally serious charges that were dropped. Hitting someone over 

the head with a baseball or an iron pipe could have been the basis 

for a charge of attempted murder, not just robbery and

aggravated assault. [Appellant] got an enormous break, and 

maybe no one explained to him how fortunate he was. 

Apparently, he didn’t understand because he’s back here having 

committed new crimes. Maybe not violent crimes, but still

committing new crimes. I’m going to impose a sentence within 

the guidelines like he could have gotten initially but did not 

because of the plea.

N.T., 1/5/17, at 16.

The record further shows the trial court considered the evidence and

relevant 42 Pa.C.S.A. § 9721(b) factors in sentencing Appellant in the 

standard range. See id. at 16-17; see also Commonwealth v. Moury, 992 

A.2d 162, 171 (Pa. Super. 2010) (“where a sentence is within the standard 

range of the guidelines, Pennsylvania law views the sentence as appropriate 

under the Sentencing Code,” and holding a sentence was not unreasonable 

where the court had the benefit of a PSI and imposed a standard range 

sentence).
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Also, Appellant was not prejudiced by the waiver of his discretionary 

aspects of sentence claim on appeal, which resulted from appellate counsel’s 

failure to include a Pa.R.A.P. 2119(f) statement in Appellant’s brief. As the 

PCRA court explained:

If appellate counsel had filed the statement as required, the claim 

itself still lacks merit. [Appellant] received 6 to 14 years for a 

crime that this [c]ourt noted “could have been the basis for

attempted murder” and carried a maximum of 20 to 40 years. 

(N.T. 1/5/17, at 16). This [c]ourt further explained the reasoning 

on the record[,] citing the seriousness of the crime[s] and 

[Appellant’s] commission of a new crime. Id. [Appellant] has not 

supported any claim of an abuse of discretion by this [c]ourt and 

therefore the claim lacks merit.

PCRA Court Opinion, 4/7/22, at 12; see also Jones, 942 A.2d at 907-08 

(rejecting claim of ineffectiveness for failure to preserve challenge to 

discretionary aspects of sentence where there was no merit to the claim).

For the above reasons, Appellant’s claims of counsels’ ineffectiveness

lack merit. As such, the PCRA court did not err in dismissing Appellant’s PCRA 

petition without a hearing. Hanible, 30 A.3d at 452.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 4/21/2023