MEMORANDUM
KING
J.
Appellant
Thomas Siderio, appeals from the order entered in the
Philadelphia County Court of Common Pleas, which denied his
petition brought under the Post-Conviction Relief Act
("PCRA").[1] We affirm.
The
PCRA court set forth the relevant facts and procedural
history of this case as follows:
At trial, the Commonwealth presented the testimony of
Philadelphia police officers Gabriel Gutner, Lamont Fox
William Bengochea, Gregory Giacomelli, and Daniel Cha,
Philadelphia police detective Thorsten Lucke, Philadelphia
assistant medical examiner Dr. Khalil Wardak, Jalil Caesar,
and Steven Busch. [Appellant] testified on his own behalf.
The evidence established the following.
Shortly after midnight, in the early morning of April 1,
2017, [Appellant] arrived at the Uncut Lounge, a club located
at 3017 N 22nd Street in Philadelphia, in order to meet his
best
friend, Daquan Foster, for a night out. (N.T. 11/27/18 at
84-87; N.T. 11/29/18 at 40, 42-43). [Appellant] arrived with
his cousin, Joseph Hastings, his girlfriend, Yarissa Rivera,
his friend, Brian Johnson, and Johnson's girlfriend.
(N.T. 11/29/18 at 40-43, 55-56). While [Appellant] was
drinking in the club, Johnson approached him and told him
that Foster was in a fight in the back of the club. (N.T.
11/29/18 at 43). [Appellant] attempted to go to the back of
the club to see what was going on, but people were pushing
and shoving and [Appellant] could not find Foster. (N.T.
11/29/18 at 43). As a result, [Appellant] decided to leave
the club, retrieve a gun that he had left in the trunk of his
friend's car, and then return to the club to help Foster.
(N.T. 11/29/18 at 44, 51-52). When he got to the car he also
grabbed a hoody from the car and pulled the hood up over his
head in an effort to conceal his identity. (N.T. 11/29/18 at
50, 72-73). [Appellant] did not have a license to carry the
firearm. (N.T. 11/29/18 at 50).
By the time [Appellant] got back to the club with his gun,
Foster was out of the bar and in the street. (N.T. 11/29/18
at 44-45). When Foster saw [Appellant's] gun, Foster told
[Appellant] that the fight was over, and both started running
from the scene. (N.T. 11/29/18 at 45). At that time, Steven
Busch, a security guard from the club, saw [Appellant] with
the gun, and yelled out, "gun" to his partner,
Mikal Crump. (N.T. 11/28/18 at 148). Both security guards
then began firing at [Appellant]. (N.T. 11/28/18 at 138,
148). One of the bullets they fired at [Appellant] struck and
killed Hastings, who was out on the street following
[Appellant]. (N.T. 11/28/18 at 92-93, 11/27/18 at 142). At
the same time, [Appellant], hearing gunshots, fired his gun,
striking a parked car that contained Joseph Hickson, Jalil
Caesar, and Clinton Cotton. (N.T. 11/28/18 at 39-43, 11/29/18
at 103). As a result, the car window was shot out and Caesar
was shot in the leg. (N.T. 11/28/18 at 41-43). During the
exchange of gunfire, [Appellant] was shot in the back. (N.T.
11/29/18 at 48).
(PCRA Court Opinion, filed 6/21/22, at 3) (quoting Trial
Court Opinion, filed 9/18/19, at 2-3) (record citation
formatting provided).
Procedurally:
On November 30, 2018, following a jury trial before this
[c]ourt, [Appellant] was convicted of one count each of
carrying a firearm without a license (18 Pa.C.S. § 6106)
and carrying a firearm on a public street in Philadelphia (18
Pa.C.S. § 6108). [Appellant] was acquitted of three
counts each of attempted murder (18 Pa.C.S. §§
901(a), 2502) and aggravated assault (18 Pa.C.S. §
2702(a)) regarding … Joseph Hickson, Jalil Caesar, and
Clinton Cotton. He was also acquitted of one count of
possessing an instrument of crime (18 Pa.C.S. § 907). In
addition, the [c]ourt granted [Appellant's] motion for
judgment of acquittal for possession of a firearm by a
prohibited person (18 Pa.C.S. § 6105). (N.T. 11/30/18 at
99). The case was joined for trial with the charges at Docket
Number CP-51-CR-0008741-2017, where [Appellant] was charged
with the murder of … Joseph Hastings (18 Pa.C.S.
§ 2502). [Appellant] was acquitted of all charges
regarding Mr. Hastings.
On January 25, 2019, the [c]ourt imposed consecutive
sentences of 3½ to 7 years [of] incarceration for the
carrying a firearm without a license charge and 2½ to
5 years['] incarceration for the carrying a firearm on a
public street in Philadelphia, for an aggregate sentence of 6
to 12 years['] incarceration. [Appellant] filed
post-sentence motions, which the [c]ourt denied on May 20,
2019. [Appellant] was represented at trial and through the
filing of post-sentence motions by David Walker, Esquire.
Gary Server, Esquire, was appointed to represent [Appellant]
on appeal. Mr. Server filed an Anders[2] brief with the
Superior Court, stating that [Appellant's] appeal was
frivolous. On October 19, 2020, the Superior Court affirmed
[Appellant's] judgment of sentence.
On May 11, 2021, [Appellant] filed a pro se [PCRA
petition.] On May 24, 2021, Peter Levin, Esquire, was
appointed to represent [Appellant], and filed an amended
petition on November 20, 2021. The Commonwealth filed a
motion to dismiss the petition on March 4, 2022. On March 23,
2022, the Court issued notice pursuant to Pa.R.Crim.P. 907
("907 Notice") of its intent to dismiss
[Appellant's] petition.
[Appellant] filed a response to the 907 Notice on April 12,
2022, which did not raise any new issues. The [PCRA c]ourt
dismissed the petition on May 6, 2022.
(PCRA Court Opinion at 1-2) (internal footnote omitted;
record citation formatting provided). Appellant filed a
timely notice of appeal on May 12, 2022. That same day, the
PCRA court ordered Appellant to file a concise statement of
errors complained of on appeal per Pa.R.A.P. 1925(b).
Appellant complied and filed his concise statement on June 2,
2022.
Appellant
raises the following issues for our review:
I. Whether the PCRA court was in error in not granting relief
on the following issues:
A. Whether Trial counsel was ineffective for failing to
preserve a claim challenging Appellant's discretionary
sentence?
B. Whether the prosecutor distorted the facts at
Appellant's sentencing?
C. Whether Appellant is entitled to a new trial based upon
after discovered evidence which would likely change the
outcome of his case[?]
II. Whether the PCRA court erred in denying Appellant's
PCRA petition without an evidentiary hearing?
(Appellant's Brief at 7) (questions reordered for
purposes of disposition).
"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. Beatty,
207 A.3d 957, 960-61 (Pa.Super. 2019), appeal
denied, 655 Pa. 482, 218 A.3d 850 (2019). This Court
grants great deference to the factual findings of
the PCRA court if the record contains any support for those
findings. Commonwealth v. Dozier, 208 A.3d 1101,
1103 (Pa.Super. 2019). "[W]e review the court's
legal conclusions de novo." Commonwealth v.
Prater, 256 A.3d 1274, 1282 (Pa.Super. 2021), appeal
denied, __Pa.__, 268 A.3d 386 (2021). Further, "we
must defer to the PCRA court's findings of fact and
credibility determinations, which are supported by the
record." Commonwealth v. Diaz, 183 A.3d 417,
421 (Pa.Super. 2018), aff'd, 657 Pa. 618, 226
A.3d 995 (2020).
In his
first sub-issue, Appellant contends that trial counsel was
ineffective for failing to preserve a claim challenging the
discretionary aspects of Appellant's sentence.
Specifically, Appellant insists that his sentence of
2½ to 5 years' imprisonment for carrying a firearm
in public in Philadelphia was an upward departure from the
sentencing guidelines. Appellant maintains that counsel had
no reasonable justification for failing to preserve the issue
for appeal and, if counsel had preserved it, this Court could
have reviewed the sentence and granted relief. Appellant
concludes that counsel's failure to preserve his
sentencing claim for appeal constitutes ineffective
assistance, and this Court must grant relief. We disagree.
"Counsel
is presumed to have rendered effective assistance."
Commonwealth v. Hopkins, 231 A.3d 855, 871
(Pa.Super. 2020), appeal denied, 663 Pa.
418, 242 A.3d 908 (2020).
[T]o establish a claim of ineffective assistance of counsel,
a defendant must show, by a preponderance of the evidence,
ineffective assistance of counsel which, in the circumstances
of the particular case, so undermined the truth-determining
process that no reliable adjudication of guilt or innocence
could have taken place. The burden is on the defendant to
prove all three of the following prongs: (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 the outcome of the proceedings
would have been different.
Commonwealth v. Sandusky, 203 A.3d 1033, 1043
(Pa.Super. 2019), appeal denied, 654 Pa. 568, 216
A.3d 1029 (2019) (internal citations and quotation marks
omitted). The failure to satisfy any prong of the test for
ineffectiveness will cause the claim to fail.
Commonwealth v. Chmiel, 612 Pa. 333, 30 A.3d 1111
(2011).
"The
threshold inquiry in ineffectiveness claims is whether the
issue/argument/tactic which counsel has foregone and which
forms the basis for the assertion...
