J-S44042-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : MAURQUIS JAVON THOMPSON : : Appellant : No. 1781 EDA 2022
Appeal from the PCRA Order Entered June 20, 2022 In the Court of Common Pleas of Delaware County Criminal Division at No(s): CP-23-CR-0002230-2012
BEFORE: OLSON, J., NICHOLS, J., and COLINS, J. *
MEMORANDUM BY COLINS, J.: FILED JUNE 26, 2024
Appellant, Maurquis Javon Thompson, appeals from the order of the
Court of Common Pleas of Delaware County that denied his timely first petition
filed under the Post Conviction Relief Act (PCRA). 1 For the reasons set forth
below, we affirm.
On April 12, 2013, Appellant was convicted by a jury of two counts each
of third-degree murder, homicide by vehicle while driving under the influence
(DUI), homicide by vehicle, leaving the scene of an accident involving death,
and causing an accident involving death while not properly licensed, and one
count each of fleeing or attempting to elude a police officer, DUI (marijuana),
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* Retired Senior Judge assigned to the Superior Court.
1 42 Pa.C.S. §§ 9541–9546. J-S44042-23
DUI (metabolite of marijuana), and possession of marijuana. These
convictions arose out of events that occurred on December 9, 2011, when
Appellant drove his car through a red light at a high rate of speed while under
the influence of marijuana, struck and killed two young boys who were
crossing the street, and fled the scene. Commonwealth v. Thompson, 106
A.3d 742, 748, 757 (Pa. Super. 2014).
On July 21, 2013, the trial court sentenced Appellant to concurrent
terms of 20 to 40 years’ imprisonment for one of the third-degree murder
convictions and life imprisonment without parole for the other third-degree
murder conviction pursuant to 42 Pa.C.S. § 9715(a) (providing mandatory life
sentence for the third-degree murder where defendant has a previous
conviction for murder or voluntary manslaughter), and to various terms of
imprisonment for the other convictions to run concurrent with the life
sentence. Thompson, 106 A.3d at 749, 765-66.
Appellant filed a timely direct appeal challenging, inter alia, the
sufficiency of the evidence to support his third-degree murder convictions and
the legality of the life imprisonment sentence. Thompson, 106 A.3d at 749-
50. On December 10, 2014, this Court rejected those challenges and affirmed
Appellant’s convictions and life sentence. Id. at 755-66.2 Appellant filed a
2 The Court vacated Appellant’s judgment of sentence, but only to permit the
trial court to correct clerical errors with respect to some of the sentences for offenses other than third-degree murder to make clear that the sentences (Footnote Continued Next Page)
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petition for allowance of appeal, which the Pennsylvania Supreme Court
denied on March 8, 2016. Commonwealth v. Thompson, 134 A.3d 56 (Pa.
2016). Appellant then filed a petition for certiorari, which the United States
Supreme Court denied on October 3, 2016. Thompson v. Pennsylvania,
580 U.S. 848 (2016).
Following the denial of his petition for certiorari, Appellant filed the
instant first PCRA petition in which he asserted claims of ineffectiveness of
counsel. Pro Se PCRA Petition at 4-8.3 Appellant had been represented by
three different lawyers in this case. Through his preliminary hearing,
Appellant was represented by Michael Malloy, Esquire. PCRA Court Opinion at
3; N.T. PCRA, 11/18/21, at 3-5. Following the preliminary hearing, Appellant
was represented first by an attorney from the public defender’s office, and
were concurrent and not consecutive, and the Court affirmed the judgment of sentence in all other respects. Thompson, 106 A.3d at 766. 3 Appellant filed his PCRA petition on April 18, 2018, more than one year after
his judgment of sentence became final. The PCRA court, however, found after a hearing on the timeliness issue that the PCRA petition was timely because the PCRA counsel that had been hired to represent Appellant had advised Appellant on May 19, 2017, less than one year after Appellant’s judgment of sentence became final, that he had filed a PCRA petition for Appellant, that this PCRA counsel had failed to file the PCRA petition, and that Appellant did not learn until he received the docket in his case, after March 26, 2018, that the PCRA counsel had failed to file the PCRA petition. PCRA Court Order, 8/6/21; PCRA Court Opinion at 11. The Commonwealth does not challenge the PCRA court’s ruling that Appellant’s PCRA petition was timely filed, and the PCRA court’s findings satisfy an exception to the PCRA’s time bar. See Commonwealth v. Peterson, 192 A.3d 1123, 1129-32 (Pa. 2018); Commonwealth v. Bennett, 930 A.2d 1264, 1272-75 (Pa. 2007).
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then, from September 21, 2012 on, by Earl Raynor, Esquire, who represented
Appellant on pre-trial motions, at trial, and on direct appeal. N.T. PCRA,
11/18/21, at 8, 17-19, 34, 36, 45-47. In July 2019, Attorney Malloy entered
his appearance as PCRA counsel for Appellant and thereafter filed amended
PCRA petitions alleging that Attorney Raynor was ineffective in advising
Appellant that he could not be convicted of third-degree murder and in failing
to advise Appellant that he could be sentenced to life imprisonment and
alleging that Appellant proceeded to trial, rather than pleading guilty, as a
result of that advice. Amended PCRA Petition ¶¶10-16; Second Amended
PCRA Petition ¶¶30-33.
On November 18, 2021, the PCRA court held a hearing on this claim for
PCRA relief. Five witnesses testified at this hearing, Appellant, Attorney
Raynor, and three attorneys who had worked on the case in the Delaware
County District Attorney’s office, Daniel J. McDevitt, Elise Bradley, and
Geoffrey Payne.
Appellant and Attorney Raynor both testified that Attorney Raynor sent
Appellant a letter on January 14, 2013, slightly less than three months before
Appellant’s trial, stating the following:
I would like to update you on where we are with your case. I have reveiwed [sic] all of the evidence in your ease including the Medical Examiner’s reports, statement from Officer Michael Fiocca, eyewitness statements, and the transcripts from the preliminary hearing. After reviewing the evidence, I believe the trial will turn out in your favor.
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The evidence in your case does not sustain the charge of Third Degree Murder. After we present our case, the jury will see that the charge is bogus and meritless. If for any reason the jury decides to return a verdict of guilty on the murder charge, I will make an oral motion to the Judge at the sentencing hearing. The Judge will then be compelled to uphold the Constitution and dismiss the murder charge due to lack of evidence.
I assure you that you will not have any penalty imposed upon you for the charge of Third Degree Murder. There is no legal basis for this charge in your case. This is a case of Homicide by Vehicle, at the most.
Appellant’s PCRA Ex. 1; N.T. PCRA, 11/18/21, at 9-12, 28-31. Appellant and
Attorney Raynor both testified that this was the advice that Attorney Raynor
gave him concerning what could happen at trial, although Attorney Raynor
testified that he advised Appellant that he could be convicted of homicide by
vehicle while DUI, not merely homicide by vehicle. N.T. PCRA, 11/18/21, at
10-12, 29-31.
Appellant testified that he believed based on Attorney Raynor’s advice
that he was not at risk of being convicted of and sentenced for third-degree
murder and proceeded to trial based on that belief. N.T. PCRA, 11/18/21, at
13-14. Appellant also testified that Attorney Raynor never advised him that
he could be sentenced to life in prison if he was convicted of the third-degree
murder charges, and Attorney Raynor testified that he did not believe that life
imprisonment was a possible penalty if Appellant was convicted of third-
degree murder and never advised Appellant of the possibility of a life sentence.
Id. at 13, 31-34, 44-45. Appellant, however, admitted that before trial, he
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knew from another source that he was subject to a life sentence if he was
convicted of the third-degree murder charges. Id. at 23-25.
Appellant admitted that the Commonwealth had offered him a plea deal
of 15 to 30 years’ imprisonment prior to the preliminary hearing, before he
was represented by Attorney Raynor, and that he rejected that plea offer.
N.T. PCRA, 11/18/21, at 15-16. Attorney Raynor testified that during trial, he
discussed with the prosecutor, assistant district attorney (ADA) Payne,
whether a 20-to 40-year plea offer was possible and that ADA Payne told him
that it was too late and that ADA Payne and ADA Bradley both told him that
there would be no plea deal because Appellant had rejected the plea offer
before the preliminary hearing. Id. at 40-42.
McDevitt, Delaware County’s deputy district attorney for the trial
division at the time of Appellant’s prosecution, testified that he assigned ADA
Bradley to Appellant’s case and directed her to make a plea offer of 15 to 30
years if Appellant waived the preliminary hearing and to advise Appellant’s
counsel that if this was not accepted, the Commonwealth would add third
degree murder and other charges. N.T. PCRA, 11/18/21, at 51, 55-58.
McDevitt testified that Appellant rejected this plea offer. Id. at 59. McDevitt
testified that no further plea offers were made by the Commonwealth after
that offer was rejected, that any plea offer from Appellant would have to be
approved by him and the district attorney, that no plea offers from counsel for
Appellant ever came to him, and that he would not have accepted a plea offer
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for less than a life sentence after the preliminary hearing. Id. at 59-62.
McDevitt testified that ADA Bradley left the district attorney’s office before
Appellant’s trial and that he assigned ADA Payne to the case and told ADA
Payne that no plea offers were to be made or accepted. Id. at 62-63.
McDevitt admitted, however, that a plea offer of 20 to 40 years before
Appellant’s trial would have been considered and discussed with the district
attorney. Id. at 64.
Bradley testified that she was the prosecutor assigned to Appellant’s
case from December 2011 until she left the district attorney’s office at the end
of 2012, that she conveyed the plea offer of 15 to 30 years if Appellant waived
the preliminary hearing to Appellant’s counsel at the time, Attorney Malloy,
and that Appellant rejected this plea offer. N.T. PCRA, 11/18/21, at 67-74.
Bradley testified that she told Appellant’s public defender and Attorney Raynor
that no further Commonwealth plea offers would be made and that neither
Appellant’s public defender nor Attorney Raynor contacted her to pursue any
plea negotiations. Id. at 78-79.
Payne testified that he was assigned to Appellant’s case when ADA
Bradley left and was the prosecutor at Appellant’s trial. N.T. PCRA, 11/18/21,
at 81-82. Payne testified that he was instructed that no plea offers were to
be made because of the rejection of the earlier plea offer and that he told
Attorney Raynor that no plea offers or deals would be made. Id. at 82-83.
Payne admitted, however, that at the start of trial, the trial court raised the
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issue of whether a plea deal was possible and he told Attorney Raynor that
although the Commonwealth would not make any plea offer, if Appellant made
a plea offer with a sentence of 15 to 30 years or more, he would take it to the
victims’ families and the district attorney to consider. Id. at 86, 88-95. Payne
testified that Attorney Raynor, after speaking with Appellant, made no plea
offer. Id. at 94-95.
On June 20, 2022, the PCRA court entered an order denying Appellant’s
PCRA petition. The PCRA court found that Attorney Raynor advised Appellant
that he could not be convicted of third-degree murder and was not at risk of
receiving a life sentence, but that Appellant’s claim of ineffective assistance of
counsel failed because, inter alia, Appellant did not show that he was
prejudiced by Attorney Raynor’s advice. PCRA Court Opinion at 3-4, 8, 10-
11. Appellant timely appealed and new counsel was appointed to represent
Appellant in this appeal. Following his appointment, Appellant’s PCRA
appellate counsel filed a statement of errors complained of on appeal pursuant
to Pa.R.A.P. 1925(b) in which he asserted both claims that the PCRA court
erred in failing to find ineffective assistance of counsel by Attorney Raynor and
a claim that Attorney Malloy was ineffective in his representation of Appellant
in the PCRA proceedings. Rule 1925(b) Statement.
In this appeal, Appellant argues that the PCRA court erred in rejecting
his claim that Attorney Raynor was ineffective in his advice to Appellant and
that Attorney Malloy was ineffective in his representation of Appellant on the
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PCRA petition because he failed to assert and prove claims of ineffectiveness
with respect to the plea offer that the Commonwealth made when he was
Appellant’s counsel. Our review of an order denying a PCRA petition is limited
to determining whether the record supports the PCRA court’s findings and
whether its decision is free of legal error. Commonwealth v. Mason, 130
A.3d 601, 617 (Pa. 2015); Commonwealth v. Steckley, 128 A.3d 826, 831
(Pa. Super. 2015); Commonwealth v. Allen, 833 A.2d 800, 802 (Pa. Super.
2003).
To be entitled to relief on a claim of ineffective assistance of counsel,
the defendant must prove: (1) that the underlying legal claim is of arguable
merit; (2) that counsel’s action or inaction had no reasonable basis; and (3)
that he suffered prejudice as a result of counsel’s action or inaction. Mason,
130 A.3d at 618; Commonwealth v. Grayson, 212 A.3d 1047, 1054 (Pa.
Super. 2019); Steckley, 128 A.3d at 831. The defendant must satisfy all three
prongs of this test to obtain relief under the PCRA. Mason, 130 A.3d at 618;
Commonwealth v. Johnson, 179 A.3d 1153, 1158 (Pa. Super. 2018);
Steckley, 128 A.3d at 831.
A defendant is entitled to competent advice of counsel with respect to
the plea bargaining process. Lafler v. Cooper, 566 U.S. 156, 162 (2012);
Grayson, 212 A.3d at 1054. The requirements of an ineffective assistance of
counsel claim in this situation are satisfied where the defendant shows both
that his counsel failed to provide competent advice concerning his sentence
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exposure or the crimes of which he could be convicted at trial and that there
is a reasonable probability that he would been able to enter and would have
entered a negotiated plea with a lesser sentence if he had been competently
advised. Lafler, 566 U.S. at 161-70, 174 (ineffective assistance of counsel in
rejection of plea offer shown where counsel erroneously advised defendant
that he could not be convicted of the most serious offense with which he was
charged); Steckley, 128 A.3d at 830, 832-36 (ineffective assistance of
counsel shown where defendant who rejected plea offer was incorrectly
advised concerning his sentence that he could receive if convicted).
Here, the evidence at the PCRA hearing that the PCRA court found
credible shows that Appellant did not receive competent advice from Attorney
Raynor concerning the offenses of which he could be convicted or the sentence
that he could receive if he went to trial rather than entering a negotiated guilty
plea. Attorney Raynor testified that he advised Appellant that he could not be
convicted of third-degree murder because the deaths were the result of a DUI
accident and Appellant was intoxicated. N.T. PCRA, 11/18/21, at 28-31.
Attorney Raynor testified that he did not advise Appellant that he would be
subject to a life sentence if convicted of both third-degree murder counts
because he believed that the life sentence for third-degree murder applied
only where the defendant had previously been convicted of third-degree
murder before committing a second third-degree murder. Id. at 31-33, 44.
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The PCRA court found Attorney Raynor’s testimony credible. PCRA Court
Opinion at 8.
Attorney Raynor’s legal conclusions on which he based his advice and
actions were contrary to established precedent. Precedential decisions of this
Court pre-dating Attorney Raynor’s representation of Appellant had held that
a death caused by a DUI motor vehicle accident can constitute third-degree
murder. Commonwealth v. Dunphy, 20 A.3d 1215, 1219-20 (Pa. Super.
2011); Allen, 833 A.2d at 801, 804. This Court had also held in a binding,
precedential decision before Attorney Raynor’s representation of Appellant
that the mandatory life sentence for “any person convicted of murder of the
third degree in this Commonwealth who has previously been convicted at any
time of murder or voluntary manslaughter” under 42 Pa.C.S. § 9715(a)
applied where the first third-degree murder or voluntary manslaughter
conviction occurred at the same trial as the conviction for which life
imprisonment was imposed. Commonwealth v. Morris, 958 A.2d 569, 578-
82 (Pa. Super. 2008) (en banc).
Although there was no plea offer from the Commonwealth when
Attorney Raynor erroneously advised Appellant, both the testimony at the
PCRA hearing and the trial record showed that Appellant had the opportunity
to seek a plea deal at the start of trial, after Attorney Raynor’s advice, if
Appellant was willing to agree to a sentence of at least 15 to 30 years’
imprisonment. N.T. PCRA, 11/18/21, at 88-95; N.T. Trial, 4/8/13, at 6-12.
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Contrary to the PCRA Court’s conclusion, PCRA Court Opinion at 8-9, the fact
that Appellant maintained that he was not the driver of the car until after trial
had begun did not excuse counsel from providing competent advice
concerning the consequences if his claim that he did not commit the crime
was rejected by the jury. Steckley, 128 A.3d at 834 (counsel’s failure to
advise defendant of mandatory minimum sentence found ineffective even
though defendant maintained his innocence at trial).
The PCRA court, however, did not err in finding that Appellant failed to
show that he was prejudiced by Attorney Raynor’s faulty advice. The PCRA
court found that Appellant was not prejudiced by Attorney Raynor’s failure to
advise him concerning the life sentence for third-degree murder because
Appellant already knew that third-degree murder convictions would result in
a life sentence. PCRA Court Opinion at 10. That finding is supported by the
record, as Appellant admitted at the PCRA hearing that he had been told
before trial that he could spend “the rest of my life in prison” if he was
convicted of third-degree murder. N.T. PCRA, 11/18/21, at 23-25.
Appellant also failed to prove that he suffered prejudice from Attorney
Raynor’s erroneous advice that he could not be convicted of third-degree
murder. To prove prejudice from ineffective assistance of counsel in this
situation, the defendant must show that but for counsel’s deficient advice
there is a reasonable probability that he would have succeeded in entering a
negotiated plea with a lower sentence. Lafler, 566 U.S. at 163-64;
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Commonwealth v. Rizor, 304 A.3d 1034, 1054-60 (Pa. 2023); Steckley,
128 A.3d at 832. This requires proof not only that there was a plea with a
lower sentence that the Commonwealth and the trial court would accept, but
that there was a reasonable probability that the defendant would have agreed
to that plea bargain. Lafler, 566 U.S. at 163-64, 174; Rizor, 304 A.3d at
1057-60; Steckley, 128 A.3d at 832-34. The mere fact that the plea was
objectively obviously beneficial to the defendant is not sufficient to prove this
element of prejudice; rather, the defendant must show that there was a
reasonable probability that he would actually have agreed to the plea bargain.
Rizor, 304 A.3d at 1057-60.
Here, there was no evidence that Appellant was willing to agree to any
plea deal that the Commonwealth would accept. The record was undisputed
that the Commonwealth would not agree to any plea bargain with a sentence
of less than 15 to 30 years’ imprisonment and that Appellant had rejected a
plea deal with a 15-to-30-year sentence before he was represented by
Attorney Raynor and received the deficient advice. N.T. PCRA, 11/18/21, at
15-16, 91-95; N.T. Trial, 4/8/13, at 7-8. Although he testified that he
“proceeded to trial based on” Attorney Raynor’s advice, N.T. PCRA, 11/18/21,
at 14, Appellant did not testify that he would have agreed to a plea with a 15-
to-30-year or greater non-life sentence at any time if Attorney Raynor had
advised him that there was some risk that he would be convicted of third-
degree murder or testify that anything had occurred prior to the start of trial
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that would have made him willing to accept the plea that he had previously
rejected. Indeed, neither Appellant nor Attorney Raynor testified at all
concerning their discussions of whether to offer a plea deal at the start of trial
after the Commonwealth indicated a willingness to consider a plea with a 15-
to-30-year or greater sentence or testified concerning any discussions of any
possible plea at any time.
Because there was no evidence at all that Appellant would have agreed
to a 15-to-30-year or greater sentence if he had been advised that there was
a possibility that he could be convicted of the third-degree murder charges,
Appellant failed to show that there was a reasonable probability that he would
have entered into a negotiated plea but for Attorney Raynor’s advice.
Compare Rizor, 304 A.3d at 1038-39, 1057-60 (prejudice not shown where
there was no credible testimony from defendant that she would have accepted
the Commonwealth’s plea offer, even though she would have received a
sentence of only 51/2 to 30 years rather than life imprisonment); with Lafler,
566 U.S. at 161, 174 (prejudice shown where record demonstrated that
defendant had expressed willingness to accept a favorable plea bargain before
counsel convinced him that he could not be convicted of the most serious
charge); Steckley, 128 A.3d at 830, 832-34 (prejudice shown where
defendant testified that he would have accepted plea offer of 2 to 6 years if
attorney had advised him that he was subject to mandatory minimum 25-year
sentence and PCRA court found that testimony credible). The PCRA court
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therefore properly denied Appellant’s claim that Attorney Raynor was
ineffective on the ground that Appellant failed to show that he suffered
prejudice.
Appellant did not raise his remaining issue, his claim that Attorney
Malloy was ineffective, in the PCRA court. That does not bar Appellant from
asserting a claim of ineffectiveness of Attorney Malloy as PCRA counsel in this
appeal. Under Commonwealth v. Bradley, 261 A.3d 381 (Pa. 2021), a
defendant may raise claims of ineffective assistance of PCRA counsel for the
first time on appeal from the denial of a timely filed first PCRA petition where
the PCRA counsel in question represented the defendant throughout the
proceedings in the PCRA court. Id. at 401-05. Here, Attorney Malloy
represented Appellant from the filing of the amended PCRA petitions until July
21, 2022, after the appeal from the denial of Appellant’s PCRA petition was
filed, and new PCRA appellate counsel raised the issue of Attorney Malloy’s
ineffectiveness at the first opportunity, in his 1925(b) statement.
Appellant’s claim that Attorney Malloy was ineffective, however, is
barred because Appellant expressly waived the claim that he contends that
Attorney Malloy was ineffective for failing to assert. Relief can be granted
under the PCRA only where “the allegation of error has not been previously
litigated or waived.” 42 Pa.C.S. § 9543(a)(3). This is not a case where PCRA
counsel’s conduct of failing to raise a claim caused a waiver and the defendant
therefore could claim ineffectiveness of PCRA counsel in waiving the claim.
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Rather, Appellant, with knowledge that Attorney Malloy had represented him
at the time of his rejection of the Commonwealth’s plea offer, expressly
waived any claim that Attorney Malloy was ineffective with respect to the plea
offer that the Commonwealth made when he was Appellant’s counsel.
At the beginning of the November 18, 2021 PCRA hearing, the PCRA
court noted that Appellant’s PCRA counsel, Attorney Malloy, had previously
represented Appellant in this case and raised the issue of Attorney Malloy’s
inability to assert claims of his own ineffectiveness. N.T. PCRA, 11/18/21, at
3-4. Appellant acknowledged on the record that Attorney Malloy had
represented him at his preliminary hearing and could not represent him on
claims of ineffectiveness in that representation and stated as follows:
MR. MALLOY: And what the judge is saying that if you’re going to raise any issues of ineffective counsel at the preliminary hearing, I certainly could not represent you at that hearing nor should I go forward in this particular hearing. Do you understand that?
[APPELLANT]: I understand.
MR. MALLOY: So in essence, you would – you’re either waiving or acknowledging that there was no ineffective counsel at the preliminary hearing. Is that correct?
[APPELLANT]: That’s correct.
MR. MALLOY: That you’re only proceeding on the ineffective assistance of counsel at the trial level. Correct?
[APPELLANT]: Correct.
* * *
THE COURT: … And the reason that I wanted to bring it up and not that I thought that that was a claim, but I just want you to
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understand, you would – you might be precluded both by time and waiver if you tried to raise it later. So it’s either now or never is essentially what we’re telling you. So you are satisfied that there was no ineffectiveness in Mr. Malloy’s representation at the preliminary hearing. Is that correct?
Id. at 4-6. Having expressly represented that he did not wish to assert any
claim that Attorney Malloy was ineffective as his pretrial counsel, he cannot
now contend that Attorney Malloy was ineffective for failing to assert such a
claim.
For the foregoing reasons, we conclude that neither of Appellant’s issues
merits relief. We therefore affirm the PCRA court’s decision denying
Appellant’s PCRA petition.
Order affirmed.
Judge Nichols joins the memorandum.
Judge Olson concurs in the result.
Date: 6/26/2024
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