NON-PRECEDENTIAL DECISION — SEE SUPERIOR COURT I.O.P. 65.37
MEMORANDUM BY PANELLA, J.
Appellant, Michael Black, appeals from the order denying his timely petition for relief pursuant to the Post Conviction Relief Act ("PCRA"), 42 Pa.C.S.A. §§ 9541-9546. We affirm.
The relevant facts and procedural history of this case are as follows. In July 2006, Appellant and Christopher Wright were involved in a violent shootout over drug sales. One month later, Appellant waited at a Philadelphia intersection where he shot and killed Wright as Wright was stopped in his car at a red light. Appellant was apprehended in 2011, and charged with murder, firearms not to be carried without a license, carrying firearms on public streets or public property in Philadelphia, possessing instruments of crime, and recklessly endangering another person.
Appellant did not file a direct appeal, but instead filed a timely pro se PCRA petition on February 13, 2015. The PCRA court appointed counsel, who filed an amended petition. The court held a hearing on that petition, which sought reinstatement of Appellant's direct appeal rights nunc pro tunc. The court denied the request for reinstatement of Appellant's direct appeal rights, but permitted counsel to file a supplemental petition. After counsel did so, the court subsequently filed a notice of intent to dismiss the petition without a hearing, pursuant to Pa.R.Crim.P. 907. The court entered a final order on July 7, 2016, dismissing Appellant's petition. This timely appeal followed.
On appeal, Appellant's argument centers on plea counsel's purported ineffectiveness. Appellant asserts he asked counsel to file a notice of appeal, and counsel failed to do so. He claims counsel failed to inform him of Mark Brown's unavailability and the importance of his testimony to the Commonwealth's case, and that this oversight created grounds for appeal. Appellant concludes this Court should remand his case to the PCRA court for a full evidentiary hearing on this issue. We disagree.
When assessing an order dismissing a petition under the PCRA, our Court's standard of review is whether the PCRA court's determination is supported by the evidence of record and is free of legal error.
Counsel is presumed to be effective, and Appellant has the burden of proving otherwise.
Instantly, Appellant contends counsel failed to inform him that Mark Brown had been deported and would be unavailable to testify if Appellant chose to go to trial. Even if we accept Appellant's assertion that counsel failed to discuss the matter with him personally, Appellant was present during a hearing the court held to establish whether Mr. Brown's prior testimony would be admissible at trial. Appellant's contention that the PCRA court "refused to hold a hearing on that issue" is a half-truth at best. While the PCRA court did choose not to hold an evidentiary hearing on Appellant's supplemental PCRA petition, this exact issue was fully litigated prior to Appellant's acceptance of the guilty plea.
Mr. Brown's unavailability was also raised at several other points during Appellant's court proceedings, including at multiple stages during Appellant's plea colloquy and during sentencing. The Commonwealth noted in its recitation of the facts that, if Appellant's case proceeded to trial, it would use Mr. Brown's testimony from the preliminary hearing.
Appellant's issue therefore lacks arguable merit.