J-S04037-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
               v.                              :
                                               :
                                               :
    STEPHON BENNETT                            :
                                               :
                      Appellant                :   No. 225 EDA 2016

                 Appeal from the PCRA Order December 17, 2015
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0010928-2008,
                             CP-51-CR-0010987-2008


BEFORE: SHOGAN, OTT and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.:                       FILED FEBRUARY 01, 2017

        Appellant, Stephon Bennett (“Bennett”), appeals pro se from the

December 17, 2015, order entered in the Court of Common Pleas of

Philadelphia County denying his first petition filed under the Post Conviction

Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546, without an evidentiary

hearing. After a careful review, we affirm.

        Bennett and his two co-defendants, Kenny R.R. Shields (“Shields”)1

and Maurice Lewis (“Lewis”), were tried jointly before a jury in connection


____________________________________________



1
  As we noted on direct appeal, Shields is also referred to as “DeShields” in
the certified record.
*
    Former Justice specially assigned to the Superior Court.
J-S04037-16


with the shooting death of Thomas Faison (“the victim”).          This Court

previously summarized on direct appeal the facts underlying the murder as

follows:

            On December 6, 2005, Sabrina Clyburn [(“Clyburn”)]
      overheard Shields, Lewis, and Bennett discussing robbing [the
      victim]. Clyburn saw the three [men] outside of the victim’s
      house wearing masks and gloves. Lewis entered the house
      alone; sounds of an argument and a gunshot were heard;
      Shields and then Bennett ran into the house; and a second
      gunshot went off.

            Lewis, who had been shot, was taken by Shields to a
      nearby apartment building where Shields’ cousin lived.
      Following an emergency call, Lewis was taken to the hospital,
      claiming that he had been shot getting off of a bus.

            A neighbor found the victim dead in his home amidst the
      scene of a struggle. The Assistant Medical Examiner testified
      that the victim sustained one gunshot wound to the chest and
      one to his hand, that death was caused by the gunshot wound to
      the chest, and that the manner of death was homicide.

             In the following days, Shields and Lewis relayed to various
      people the story of how Shields saved Lewis’ life after Lewis was
      shot struggling with the victim. Rasheda DeShields, Shields’
      sister, gave a statement in which she reported that Shields made
      statements to her, inter alia, that Lewis shot the victim in the
      hand and that Shields’ [sic] took Lewis’ weapon to hide it at
      Lewis’ grandmother’s home before the police arrived in response
      to the 911 call that led to Lewis’ being taken to the hospital.
      Arlo Spruell gave a statement that Shields told him that Shields
      and Lewis went to the victim’s house to rob the victim because
      the victim was selling cocaine for someone named Mike, whom
      Shields and Lewis did not like, and they wanted to get Mike’s
      money and cocaine.

            Bennett apparently was more tight-lipped about the events
      of the evening. Angered that Clyburn was including his name in
      her statement to police, Bennett asked his brother to instruct
      Clyburn “to keep [Bennett’s] name out of her mouth because
      she don’t know what she’s talking about if she is saying
      [Bennett] killed [the victim].” N.T., 1/6/2010, at 115.

                                    -2-
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             While the statements to the police were offered into
       evidence, Shields, Lewis, and Bennett exercised their rights not
       to testify at trial. On January 12, 2010, the jury found [all three
       men] guilty of [ ] various crimes.

Commonwealth v. Bennett, 1639 EDA 2010, at 3-4 (Pa.Super. filed

12/6/11) (unpublished memorandum).

       Specifically, with regard to Bennett, the jury convicted him of second-

degree     murder,     robbery,     witness    intimidation,   criminal   solicitation,

conspiracy, and possession of an instrument of crime.2 He was sentenced to

an aggregate of life in prison, and following the denial of his post-sentence

motion, Bennett appealed to this Court.

       On direct appeal, Bennett claimed (1) the evidence was insufficient to

support his convictions, (2) the jury’s verdicts were against the weight of the

evidence, (3) the trial court erred in permitting the testimony of Anthony

Sharpe,3 (4) the prosecutor committed misconduct during closing argument,

and (5) the trial court erred in charging the jury with regard to second-

degree murder.       See id. at 5.      Finding the claims to be meritless and/or

waived, we rejected Bennett’s claims and affirmed his judgment of sentence.

See Bennett, supra. Bennett filed a petition for allowance of appeal, which

____________________________________________


2
  18 Pa.C.S.A. §§ 2502(b), 3701(a)(1)(i), 4952(a)(1), 902(a), 903(a)(1),
and 907(a), respectively.
3
  Anthony Sharpe gave a pre-trial statement to the police in which he related
his knowledge of the victim’s murder, and the Commonwealth called him as
a witness during its case-in-chief.



                                           -3-
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our Supreme Court denied on July 2, 2012. Lee Mandell, Esquire,

represented Bennett during trial and on direct appeal.

       On or about March 21, 2013, Bennett filed a timely, pro se PCRA

petition, and Barnaby C. Wittels, Esquire, was appointed to represent him.

On October 20, 2015, Attorney Wittels filed a Turner/Finley4 “no-merit”

letter and petition seeking to withdraw his representation. On November 10,

2015, Bennett filed a response, and on November 17, 2015, the PCRA court

provided Bennett with notice of its intent to dismiss his PCRA petition

without an evidentiary hearing.         By order entered on December 17, 2015,

the PCRA court denied Bennett’s petition,5 and this timely appeal followed.6

       Initially, we note that our standard of review from the denial of post-

conviction relief “is limited to examining whether the PCRA court's

determination is supported by the evidence of record and whether it is free

of legal error.” Commonwealth v. Ousley, 21 A.3d 1238, 1242 (Pa.Super.



____________________________________________


4
  Commonwealth v. Turner, 518 Pa. 491, 544 A.2d 927 (1988), and
Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc).
5
    The certified docket entries reveal that, in a separate order filed on
December 17, 2015, the PCRA court permitted Attorney Wittels to withdraw
his representation.
6
   The PCRA court did not direct Bennett to file a Pa.R.A.P. 1925(b)
statement, and thus, Bennett filed no such statement. However, the PCRA
court filed an opinion on July 15, 2016, explaining the reasons it denied
Bennett’s PCRA petition.



                                           -4-
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2011). This Court “will not disturb findings that are supported by the

record.” Id.

       Moreover, to the extent Bennett challenges the effectiveness of

counsel, we note that when analyzing ineffectiveness claims, we begin with

the presumption that counsel was effective. Commonwealth v. Spotz, 610
Pa. 17, 18 A.3d 244, 259–60 (2011). “[T]he [petitioner] bears the burden

of proving ineffectiveness.” Commonwealth v. Ligons, 601 Pa. 103, 124,

971 A.2d 1125,     1137     (2009)    (citation   omitted).   To   overcome   the

presumption of effectiveness, a PCRA petitioner must demonstrate that: “(1)

the underlying substantive claim has arguable merit; (2) counsel whose

effectiveness is being challenged did not have a reasonable basis for his or

her actions or failure to act; and (3) the petitioner suffered prejudice as a

result of counsel's deficient performance.” Id. (citation omitted). A claim of

ineffectiveness will be denied if the petitioner's evidence fails to meet any of

these prongs. See id.

       Bennett first contends trial counsel was ineffective in failing to object

properly to the Commonwealth’s use of Clyburn’s preliminary hearing

testimony at trial.7      Specifically, he argues that, prior to the preliminary

____________________________________________


7
   Clyburn testified at Bennett’s preliminary hearing on September 2, 2008,
and after the Commonwealth established she was unavailable, her testimony
was subsequently read to the jury during trial. See PCRA Court’s Opinion,
filed 7/15/16, at 10; N.T., 1/5/10, at 125-57. Clyburn testified that, on the
day of the shooting, she was walking to a store when she heard Lewis,
(Footnote Continued Next Page)


                                           -5-
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hearing, the Commonwealth failed to disclose to the defense Officers Philip

Sprague’s and Scott Pollack’s written investigation interview records in which

they set forth statements made to them by Clyburn.8 Bennett contends the

officers’ written investigation interview records contained vital impeachment

evidence which should have been available to the defense in order to test

Clyburn’s veracity at the preliminary hearing.    Accordingly, he argues trial

counsel should have argued at trial that Bennett did not have a full and fair
                       _______________________
(Footnote Continued)

Shields, and Bennett discussing robbing the victim. N.T., 1/5/10, at 126-32.
Clyburn testified she had known Bennett “[a]ll [her] life.” See id. at 127.
Clyburn indicated she went to the store and, as she was walking back
towards the victim’s house, she saw all three men, who were now wearing
masks and latex gloves, standing outside of the victim’s house. See id. at
130-32. She saw Lewis enter the house alone, heard an argument, and then
heard a gunshot coming from inside of the house. See id. She then saw
Shields and Bennett run into the house, after which she heard another
gunshot. See id. 130-33. She further indicated that, after she testified at
Lewis’ and Shields’ preliminary hearings, but before she testified at Bennett’s
preliminary hearing, Bennett’s brother threatened to hurt her if she testified
again. See id. at 138.
8
  In the officers’ investigation interview records, they indicated that they
were on duty together on June 10, 2006, and responded to a call for a
disturbance at approximately 11:46 p.m. See Bennett’s Response, filed
11/10/15, Exhibits A-1 and A-2. Upon arrival, Clyburn told them she had
been assaulted by at least two males, and during the discussion, Clyburn
told them she had information about a murder case. See id. Specifically,
the officers indicated Clyburn told them she was outside of the victim’s
house, saw three males go into the house, and heard gunshots. See id. She
said the males were known to her as “Foo-Foo,” “Stephan,” and “Dion.” See
id. She indicated “Foo-Foo” was an alias for Shields. See id.
      Although the officers’ written investigation interview records were not
provided to defense counsel prior to the preliminary hearing, there is no
dispute the records were provided to defense counsel prior to trial. PCRA
Court’s Opinion, filed 7/15/16, at 14-15.




                                            -6-
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opportunity to cross-examine Clyburn at the preliminary hearing, thus

rendering her preliminary hearing testimony inadmissible at trial under

Commonwealth v. Bazemore, 531 Pa. 582, 614 A.2d 684 (1992).                 We

find no relief is due on this claim.

       Under both the Pennsylvania and United States Constitutions, a

criminal defendant has a right to confront and cross-examine the witnesses

against him.      Commonwealth v. McCrae, 574 Pa. 594, 832 A.2d 1026

(2003). Our rules provide, however, that an unavailable witness’9 prior

recorded testimony from a preliminary hearing is admissible at trial and will

not offend the right of confrontation, provided the defendant had counsel

and a full opportunity to cross-examine the witness at the prior proceeding.

See Pa.R.E. 804; Commonwealth v. Mitchell, 2016 WL 7163810

(Pa.Super. filed 12/8/16).        With regard to the “full opportunity to cross-

examine the witness at the prior proceeding,” our Supreme Court has held

that, “[w]hether prior testimony was given at trial or at any other

proceeding where, as here, admission of that prior testimony is being sought

as substantive evidence against the accused, we conclude that the standard

to be applied is that of full and fair opportunity to cross-examine.”

Bazemore, 531 Pa. at 587-88, 614 A.2d at 687 (emphasis in original).
____________________________________________


9
  Bennett specifically argues that he is not challenging the PCRA court’s
conclusion that Clyburn was unavailable for trial or that trial counsel
sufficiently objected to the introduction of Clyburn’s preliminary hearing
testimony on this basis. See Bennett’s Brief at 4-5.



                                           -7-
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      In Bazemore, our Supreme Court found the appellant’s right to

confrontation was violated because “he was denied a full and fair opportunity

to cross-examine [a witness] at the preliminary hearing so as to preclude

the use of that testimony at trial.”       Id. at 588, 614 A.2d at 687.

Specifically, in Bazemore, the Supreme Court noted that:

      At the time of the preliminary hearing, defense counsel was not
      aware that [the witness] had given a prior inconsistent
      statement to the police nor was she made aware that the
      Commonwealth was contemplating the filing of criminal
      homicide, conspiracy and aggravated assault charges against
      [the witness], which charges arose out of the same incident
      giving rise to the charges at issue in the hearing. In addition,
      counsel was unaware of [the witness’] prior criminal record.

Id. (emphasis omitted).

      Accordingly, our Supreme Court determined that the appellant in

Bazemore was not given a “full and fair opportunity” to cross-examine the

witness at the preliminary hearing due to the Commonwealth’s failure to

disclose the relevant impeachment evidence prior to the witness’ initial

testimony. Thus, the Supreme Court held that “no indicia of reliability” could

be attributed to the defense’s cross-examination of the witness at the

preliminary hearing such that the testimony of the witness, who had become

unavailable, could not be used as substantive evidence against the appellant

at trial.   Id. at 587, 614 A.2d at 687.    See Commonwealth v. Cruz-

Centeno, 668 A.2d 536, 542-43 (Pa.Super. 1995) (“[W]here the defense, at

the time of the preliminary hearing, was denied access to vital impeachment

evidence, such as prior inconsistent statements of the witness. . .a full and

                                    -8-
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fair opportunity to cross-examine the unavailable witness may be deemed to

have been lacking at the preliminary hearing.”) (citations omitted)).

However, as the PCRA court found in the case sub judice, the constitutional

concerns and implications regarding the use of Clyburn’s preliminary hearing

testimony illustrated in Bazemore are not present in the instant case.

      This Court has clarified that “[m]ere dissimilarities or omissions in

prior statements. . .do not suffice as impeaching evidence; the dissimilarities

or omissions must be substantial enough to cast doubt on a witness’

testimony     to   be      admissible     as   prior     inconsistent     statements.”

Commonwealth v. Luster, 71 A.3d 1029, 1043 (Pa.Super. 2013) (en

banc) (internal quotation marks and quotations omitted).

      Here, even if defense counsel had utilized Officers Sprague’s and

Pollack’s   written     investigation   interview      records   during    the   cross-

examination of Clyburn, the records “would not have casted substantial

doubt on the veracity of [Clyburn’s] [ ] testimony” as it relates to Bennett’s

guilt. Id. In the investigation interview records, the officers’ reports of the

statements made to them by Clyburn are substantially similar to Clyburn’s

preliminary hearing testimony.          In both circumstances, Clyburn provided

similar detailed facts surrounding her observations. As it relates specifically

to Bennett’s participation in the murder, the officers’ interview records




                                         -9-
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confirm that Clyburn named Bennett as a participant,10 and she later

consistently identified Bennett as a participant during her preliminary

hearing testimony.11

       Bennett admits these facts; however, he notes that the officers’

reports indicate Clyburn initially named “Dion” as one of Bennett’s cohorts

but then later named “Lewis” as one of Bennett’s cohorts during her

preliminary    hearing     testimony.     We   disagree   with   Bennett   that   this

dissimilarity in identification as to one of Bennett’s co-defendants sufficed as

vital impeachment evidence “substantial enough to cast doubt on [Clyburn’s]

testimony.” See id.        This is particularly true given the fact Bennett insists

on appeal that he is not alleging Clyburn did not observe both of his co-


____________________________________________


10
  We recognize that Bennett’s first name is “Stephon” and not “Stephan” as
reported in the officers’ written investigation interview records; however,
Bennett has developed no argument regarding this discrepancy. In fact,
Bennett concedes on appeal that, when Clyburn talked to Officers Sprague
and Pollack, she named him as a participant in the murder. See Bennett’s
Brief at 3.
11
   Further, with the exception of “Dion” being named as a participant, the
officers’ reports of Clyburn’s statements are similar to the statements
Clyburn made to detectives at the police station at 1:45 a.m. on June 11,
2006. During the interview with detectives at the police station, Clyburn
identified Bennett, Shields, and Lewis as the three men she saw in
connection with the murder. See Bennett’s Response, filed 11/10/15,
Exhibit A-3. Clyburn’s June 11, 2006, interview with the detectives was
memorialized in an investigation interview record, which defense counsel
had in his possession and utilized during the cross-examination of Clyburn
during the preliminary hearing. N.T., 1/5/10, at 154.




                                          - 10 -
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defendants (Shields and Lewis) participate in the incident, which led to the

victim’s death. See Bennett’s Brief at 4.

         Moreover, we note that, in Luster, supra, we explained:

          [A] summary of a witness’ statement cannot be used for
         impeachment purposes absent adoption of the statement by the
         witness as his/her own. The rationale for this rule is: [I]t would
         be unfair to allow a witness to be impeached on a police officer’s
         interpretation of what was said rather than the witness’ verbatim
         words.

Id. at 1044 (internal quotation marks and quotations omitted).

         In the case sub judice, the officers’ written investigation interview

records contained summaries of the officers’ recollections of what Clyburn

had told them about the instant murder. There is no indication that Clyburn

herself had signed, adopted, or reviewed the officers’ written investigation

interview records in any manner.       Given the foregoing, we find no merit to

Bennett’s claim that, under the dictates of Bazemore, defense counsel did

not have a “full and fair opportunity” to cross-examine Clyburn during the

preliminary hearing such that her testimony should have been excluded

when she became unavailable for trial. Accordingly, trial counsel cannot be

ineffective in failing to object to the introduction of the testimony on this

basis.




                                       - 11 -
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       In his next claim, Bennett argues that PCRA counsel was ineffective for

failing to raise the previous issue of trial counsel’s ineffectiveness.12

Initially, we note that Bennett is mistaken in his averment that PCRA counsel

did not present this claim in his Turner/Finley no-merit letter.        In any

event, based upon our conclusion that the PCRA court properly found trial

counsel was not ineffective on this basis, we also conclude that PCRA

counsel was not ineffective.         See Commonwealth v. Thomas, 615 Pa.
477, 44 A.3d 12 (2012).

       In his next issue, Bennett argues that trial counsel rendered ineffective

assistance of counsel by failing to object to an instance of prosecutorial

misconduct at trial. Specifically, Bennett contends that Clyburn offered false

testimony during her preliminary hearing testimony, and the prosecutor

committed misconduct by knowingly permitting the false testimony to be

presented at the jury trial when Clyburn became unavailable as a witness.

Bennett contends trial counsel should have objected to the instance of

prosecutorial misconduct, and his failure to do so constitutes ineffectiveness.

       In support of his claim, Bennett cites to the following portion of

Clyburn’s preliminary hearing testimony, which was admitted at trial:

____________________________________________


12
   Bennett preserved this assertion of PCRA counsel’s ineffectiveness in his
response filed in the PCRA court on November 10, 2015. See
Commonwealth v. Henkel, 90 A.3d 16 (Pa.Super. 2014) (en banc)
(indicating claims of PCRA counsel’s ineffectiveness may not be raised for
the first time on appeal).



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             Q: You told us that you gave an interview to the detectives
       on June 11th, and that document is there in front of you,
       marked C-2.13 Do you see that?
             A: Yes.
             Q: It says the interview is dated June 11th, do you see
       that?
             A: Yes.
             Q: Prior to June 11th, did you talk to the police at all
       concerning what happened that night?
             A: Yes.
             Q: When was that?
             A: Say it again.
             Q: When was it before June 11th that you spoke to the
       police about what happened that night?
             A: I didn’t.
             Q: Just so I’m clear then, between December 5, 2005
       when these things happened until June 11th, 2006 when you
       were interviewed, you had no contact with the police; is that
       correct?
             A: Correct.

N.T., 1/5/10, at 154-55 (footnote added) (quotation marks omitted). See

Bennett’s Brief at 19-20.

       Bennett claims that Clyburn testified falsely since, prior to speaking to

the detectives during the early morning hours of June 11, 2006, she had

contact with Officers Sprague and Pollack during the late evening hours of

June 10, 2006, when she was assaulted. He continues that the prosecutor

knowingly permitted this “false” testimony to be presented to the jury, and

trial counsel was ineffective in failing to object on this basis.



____________________________________________


13
   We note this is the same document that was attached to Bennett’s
Response, filed on November 10, 2015, as Exhibit A-3.



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      Our Supreme Court has stated, “It is. . .an established constitutional

principle that a conviction obtained through the knowing use of materially

false testimony may not stand; a prosecuting attorney has an affirmative

duty to correct the testimony of a witness which he knows to be false.”

Commonwealth v. Carpenter, 472 Pa. 510, 519, 372 A.2d 806, 810

(1977) (citations omitted).

      The prosecution may not knowingly and deliberately
      misrepresent the evidence in order to gain a conviction.
      Nevertheless,    a     claim    of     purposeful    prosecutorial
      misrepresentation will not stand if examination of the record fails
      to reveal any indication of deceptive tactics on the part of the
      prosecution.

Commonwealth v. Ali, 608 Pa. 71, 91, 10 A.3d 282, 294 (2010) (citations

omitted).   “Moreover, when the reliability of a given witness may well be

determinative of guilt or innocence, nondisclosure [on the part of the

Commonwealth] of evidence affecting credibility violates due process.”

Cruz-Centeno, 668 A.2d at 543 (quotations marks and quotation omitted).

      In the case sub judice, assuming, arguendo, Clyburn’s testimony

contained “materially false testimony” regarding her contact with Officers

Sprague and Pollack, there is no indication the prosecutor engaged in any

deceptive tactics or nondisclosure relevant thereto as asserted by Bennett.

The record reveals that, prior to trial, the Commonwealth provided defense

counsel with Officers Sprague’s and Pollack’s written investigation interview

records, wherein the officers set forth the contact and discussion which they

had with Clyburn on June 10, 2006.            Moreover, the Commonwealth

                                    - 14 -
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presented the testimony of Detective Joseph Bamberski, who informed the

jury that police officers brought Clyburn to the homicide division to speak to

him about the instant murder after she was assaulted. N.T., 1/7/10, at 98,

110-11.   Accordingly,     the   Commonwealth      took       steps   to   correct   any

misstatements made by Clyburn as to her contact with police officers prior to

her interview with detectives on June 11, 2006, and thus, there is no

arguable merit to Bennett’s claim of prosecutorial misconduct.                       See

Carpenter, supra.

      Further, we conclude that Bennett has failed to demonstrate any

prejudice resulting from trial counsel’s failure to object in this regard.

Specifically, at trial, Officer Sprague was called as a defense witness, and he

testified in detail to the events surrounding his contact with Clyburn on June

10, 2006. N.T., 1/7/10, at 169-83. In particular, Officer Sprague testified

he responded to the assault of Clyburn, and during his discussion with her,

she informed him that she had information as to the instant murder. See

id.   Officer    Sprague    additionally   testified   that    he     made   a   written

investigative interview record memorializing the statements Clyburn made to

him, and the document was entered into evidence as a defense exhibit. Id.

at 175-82.      Accordingly, Bennett has not demonstrated that he suffered

prejudice as a result of counsel’s failure to object. Ligons, supra.




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       In his next claim, Bennett argues that PCRA counsel was ineffective for

failing to raise the previous issue of trial counsel’s ineffectiveness.14

Initially, we note that Bennett is mistaken in his averment that PCRA counsel

did not present this claim in his Turner/Finley no-merit letter.          In any

event, based upon our conclusion that the PCRA court properly found trial

counsel was not ineffective on this basis, we also conclude that PCRA

counsel was not ineffective. See Thomas, supra.

       In his next issue, Bennett contends that trial counsel was ineffective in

failing to investigate Clyburn’s mental health history for impeachment

purposes.      In this regard, Bennett argues that, at his co-defendants’

February 27, 2008, preliminary hearings, Clyburn admitted that she took

medication for depression. Accordingly, Bennett argues trial counsel should

have investigated Clyburn’s mental health history, as well as presented her

history, so that the jury would be able to assess whether her mental illness

affected her ability to accurately observe and recall the events on the day of

the murder.

       Our Supreme Court has held that:

       When a witness suffers from a mental disability relevant to his or
       her ability to accurately observe, recall or report events, the jury
       must be informed of the disability in order to assist it in properly
       assessing the weight and credibility of the witness’s testimony.
____________________________________________


14
   Bennett preserved this assertion of PCRA counsel’s ineffectiveness in his
response filed in the PCRA court on November 10, 2015. See Henkel,
supra.



                                          - 16 -
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      The evidence can be said to affect credibility when it shows that
      the witness’s mental disorganization impaired his or her capacity
      to observe an event at the time of its occurrence, to maintain a
      clear recollection of it, or to communicate the observation
      accurately and truthfully at trial.

Commonwealth v. Davido, 630 Pa. 217, 261, 106 A.3d 611, 637 (2014)

(citations omitted).

      Here, the PCRA court opined:

            [T]he record lacks evidence that would demonstrate that
      [Clyburn’s] mental health issues adversely affected her
      credibility by impacting her ability to observe, recall or report
      what she saw or heard.

            Th[e] court [concludes] that      the witness’ depression, the
      evidence of which was adduced at        the preliminary hearing, was
      not the kind of disability which         would render [ ] Clyburn
      unreliable and interfere with her       ability to observe, recall or
      report events.

PCRA Court’s Opinion, filed 7/15/16, at 18.

      The PCRA court’s determination is supported by the evidence of record

and is free of legal error. Ousley, supra. Bennett has made no showing

that Clyburn’s credibility was affected by her depression or negatively

impacted her abilities to accurately observe, recall, or communicate the facts

to which she testified. Instead, Bennett argues in a cursory and speculative

fashion that Clyburn’s mental health diagnosis had relevant potential

impeachment value and trial counsel should have “explored” the issue. See

Bennett’s Brief at 30.   Accordingly, we agree with the PCRA court that there




                                     - 17 -
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is no arguable merit to the underlying claim such that trial counsel may not

be deemed ineffective on this basis.15

       In his next claim, Bennett argues that PCRA counsel was ineffective

for failing to raise the previous issue of trial counsel’s ineffectiveness.16

Initially, we note that Bennett is mistaken in his averment that PCRA counsel

did not present this claim in his Turner/Finley no-merit letter.      In any

event, based upon our conclusion that the PCRA court properly found trial

counsel was not ineffective on this basis, we also conclude that PCRA

counsel was not ineffective. See Thomas, supra.

       Finally, to the extent Bennett contends the PCRA court erred in

denying his PCRA petition without an evidentiary hearing, we note that a

PCRA petitioner is not automatically entitled to an evidentiary hearing.

Commonwealth v. Wah, 42 A.3d 335, 338 (Pa.Super. 2012). We review

the PCRA court’s decision to deny a petition without an evidentiary hearing

for an abuse of discretion. See Commonwealth v. Reid, 627 Pa. 151, 99

____________________________________________


15
   Moreover, we note that Clyburn testified at Bennett’s co-defendants’
preliminary hearing that she had been diagnosed with depression, and she
took medication prescribed for her depression. See N.T., 1/5/10, at 108-09.
This testimony was revealed to the jury and from that revelation the jury is
assumed to have used their common sense in evaluating any impact her
depression would have upon her credibility.
16
   Bennett preserved this assertion of PCRA counsel’s ineffectiveness in his
response filed in the PCRA court on November 10, 2015. See Henkel,
supra.




                                          - 18 -
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A.3d 470 (2014). In light of the fact Bennett’s claims are patently frivolous,

as discussed supra, we conclude the PCRA court did not err in denying relief

without an evidentiary hearing.

      For all of the foregoing reasons, we affirm.

      Affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/1/2017




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