Com. v. Fennell, R. ( 2016 )


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  • J-S78005-16
    NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
    COMMONWEALTH OF PENNSYLVANIA,                     IN THE SUPERIOR COURT OF
    PENNSYLVANIA
    Appellee
    v.
    ROBERT FENNELL,
    Appellant                 No. 1280 WDA 2015
    Appeal from the PCRA Order Entered July 21, 2015
    In the Court of Common Pleas of Cambria County
    Criminal Division at No(s): CP-11-CR-0001935-2009
    COMMONWEALTH OF PENNSYLVANIA,                     IN THE SUPERIOR COURT OF
    PENNSYLVANIA
    Appellee
    v.
    ROBERT FENNELL,
    Appellant                 No. 1379 WDA 2015
    Appeal from the PCRA Order Entered July 27, 2015
    In the Court of Common Pleas of Cambria County
    Criminal Division at No(s): CP-11-CR-0001935-2009
    BEFORE: BENDER, P.J.E., OTT, J., and FITZGERALD, J.*
    MEMORANDUM BY BENDER, P.J.E.:                     FILED DECEMBER 02, 2016
    Appellant, Robert Fennell, appeals from the July 27, 2015 order
    denying his petition filed under the Post Conviction Relief Act, 42 Pa.C.S. §§
    ____________________________________________
    *
    Former Justice specially assigned to the Superior Court.
    J-S78005-16
    9541-9546.1      Appellant raises multiple issues, including several claims of
    ineffective assistance of counsel (IAC). After careful review, we affirm the
    order entered at docket 1379 WDA 2015, and quash the appeal docketed at
    1280 WDA 2015.
    This Court previously summarized the facts underlying Appellant’s
    case, as follows:
    On January 24, 2009, Appellant, while a prisoner in the
    State Correctional Institution [(“SCI”)] at Cresson, Pennsylvania,
    punched a Corrections Officer, Russell Bollinger [(“C.O.
    Bollinger”)], in the face. This assault was not only witnessed by
    several people, but also recorded on a security camera
    videotape. At trial, [C.O.] Bollinger testified that he was struck
    in the jaw by Appellant, the force of which caused him to fall
    down onto a nearby metal bench. A “ruckus” ensued, during
    which time Appellant “managed to get an arm round [C.O.
    Bollinger’s] neck to try to choke” him. The melee ended with
    correction officers wrestling Appellant to the floor, and
    restraining him with handcuffs. As a result of this incident,
    [C.O.] Bollinger “tore the muscles in the right side of [his] back.”
    He further testified that as a result of his injuries he could not
    get off his “couch for about three days,” and missed “about two
    weeks” of work.
    ____________________________________________
    1
    Appellant filed two notices of appeal - one from an order purportedly
    entered on July 21, 2015, and one from the PCRA court’s order entered on
    July 27, 2015. Those notices of appeal were docketed at 1280 WDA 2015
    and 1379 WDA 2015, respectively. This Court sua sponte consolidated
    Appellant’s appeals on October 19, 2015. Our review of the certified record
    confirms that the PCRA court did not enter any order on July 21, 2015.
    Rather, the order denying Appellant’s petition was entered on July 27, 2015.
    All of Appellant’s issues relate to the July 27, 2015 order denying his
    petition. Consequently, we quash Appellant’s appeal docketed at 1280 WDA
    2015, and our disposition herein relates only to his appeal docketed at 1379
    WDA 2015.
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    J-S78005-16
    At trial, Appellant offered a somewhat hybrid defense,
    alternately claiming that he was either justified or under duress
    when he assaulted [C.O.] Bollinger. He asserted that he had
    previously been a target of retaliatory conduct from corrections
    officers, during which time they had abused him, and that that
    conduct precipitated his striking of [C.O.] Bollinger.
    Commonwealth           v.    Fennell,      No.   186   WDA   2011,   unpublished
    memorandum at 1-2 (filed March 19, 2012) (citations to the record
    omitted).
    Based on these facts, Appellant was convicted, following a nonjury
    trial, of two counts of aggravated assault, and one count each of simple
    assault, assault by a prisoner, resisting arrest, and recklessly endangering
    another person.      On August 10, 2010, he was sentenced to an aggregate
    term of 10 to 20 years’ incarceration. Appellant filed a timely direct appeal,
    and we affirmed his convictions. See Fennell, supra.2 Appellant did not
    file a petition for allowance of appeal with our Supreme Court. However, he
    later sought reinstatement of his right to do so in a timely-filed PCRA
    petition, which the PCRA court granted. Id. Appellant then filed a nunc pro
    ____________________________________________
    2
    We did, however, vacate Appellant’s sentence for simple assault,
    concluding that that offense merged, for sentencing purposes, with
    Appellant’s conviction of aggravated assault on C.O. Bollinger. See Fennell,
    No. 186 WDA 2011, unpublished memorandum at 12. We also vacated the
    sentence imposed by the court for Appellant’s second count of aggravated
    assault, concluding that the trial court had improperly “imposed separate
    sentences upon Appellant for the same conduct based upon the conclusions
    that [he] violated two separate subsections of the aggravated assault
    statute[,] … which constitutes an illegal sentence.” Id. at 12-13. Our
    decision to vacate Appellant’s sentences for simple assault and one count of
    aggravated assault did not alter his aggregate term of 10 to 20 years’
    imprisonment; thus, we did not remand for resentencing. Id. at 14 n.7.
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    tunc petition for allowance of appeal, and the Supreme Court ultimately
    denied that petition. Commonwealth v. Fennell, 
    72 A.3d 600
     (Pa. 2013).
    On May 9, 2014, Appellant filed the pro se PCRA petition that underlies
    the present appeal. Counsel was appointed, and an amended petition was
    filed in August of 2014 presenting, inter alia, multiple IAC claims. A PCRA
    hearing was conducted on May 20, 2015. Appellant was the only witness to
    testify at that proceeding.   On July 27, 2015, the PCRA court entered an
    order denying Appellant’s petition, concluding that he “failed to satisfy his
    burden of demonstrating ineffectiveness because he failed to produce
    evidence that counsel’s chosen course of action lacked a reasonable basis
    designed to effectuate [Appellant’s] interests.” PCRA Court Order, 7/27/15,
    at 1-2 (citation omitted).
    Appellant filed a timely notice of appeal, and also timely complied with
    the PCRA court’s order to file a Pa.R.A.P. 1925(b) concise statement of
    errors complained of on appeal. Herein, Appellant raises the following seven
    questions for our review:
    A. Whether the PCRA [c]ourt erred and abused its discretion by
    failing to find Appellant’s constitutional rights were violated by
    his arrest through summons?
    B. Whether the PCRA [c]ourt erred and abused its discretion by
    failing to find [that] Appellant’s trial counsel was ineffective for
    failing to call witnesses on his behalf?
    C. Whether the PCRA [c]ourt erred and abused its discretion by
    failing to find [that] Appellant’s trial counsel was ineffective for
    failing to properly investigate the abuse perpetrated upon
    Appellant by the correctional officers at SCI Cresson?
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    D. Whether the PCRA [c]ourt erred and abused its discretion by
    failing to find [that] Appellant’s trial counsel [was] ineffective for
    failing to move the court to limit the introduction of surveillance
    video against Appellant?
    E. Whether the PCRA [c]ourt erred and abused its discretion by
    failing to find [that] Appellant’s trial counsel failed to properly
    impeach [C.O.] Bollinger regarding his interaction with Appellant
    in the months before the incident?
    F. Whether the PCRA [c]ourt erred and abused its discretion by
    failing to find [that] Appellant’s trial counsel was ineffective for
    failing to remove himself from Appellant’s case, as he had a
    personal relationship with the alleged victim?
    G. Whether the PCRA [c]ourt erred and abused its discretion by
    failing to grant Appellant’s request for discovery contained within
    his [a]mended [PCRA] [p]etition…?
    Appellant’s Brief at 4-5.
    To begin, our standard of review regarding an order denying post-
    conviction relief under the PCRA is whether the determination of the court is
    supported   by   the   evidence   of   record   and   is   free   of   legal   error.
    Commonwealth v. Ragan, 
    923 A.2d 1169
    , 1170 (Pa. 2007).                   The PCRA
    court’s findings will not be disturbed unless there is no support for the
    findings in the certified record. Commonwealth v. Carr, 
    768 A.2d 1164
    ,
    1166 (Pa. Super. 2001).
    In Appellant’s first issue, he contends that “the procedure used to
    secure his appearance at his preliminary hearing was unlawful.” Appellant’s
    Brief at 10. Specifically, Appellant asserts that because he was charged with
    felony offenses, Pennsylvania Rule of Criminal Procedure 509 required that a
    warrant for his arrest be issued, yet he only “received a summons in the
    mail advising him to report to the preliminary hearing.” Appellant’s Brief at
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    11; see also Pa.R.Crim.P. 509(2)(a) (requiring the issuing authority to issue
    a warrant for arrest when “one or more of the offenses charged is a felony or
    murder”).
    Appellant does not offer any meaningful discussion of how his
    constitutional rights were violated by the issuance of a summons, rather
    than a warrant for his arrest. He also does not explain why this claim could
    not have been raised at the preliminary hearing, before the trial court, or on
    direct appeal. Consequently, we conclude that he has waived his challenge
    to the purported deficiency in how he was summoned to attend the
    preliminary hearing.3       See 42 Pa.C.S. § 9543(a)(3) (stating that, to be
    eligible for PCRA relief, the petitioner must plead and prove “[t]hat the
    allegation of error has not been previously litigated or waived”); 42 Pa.C.S.
    § 9544(b) (stating that “an issue is waived if the petitioner could have raised
    it but failed to do so before trial, at trial, during unitary review, on appeal, or
    in a prior state post[-]conviction proceeding”).
    ____________________________________________
    3
    To the extent Appellant suggests that his trial counsel was ineffective for
    not raising this ostensible deficiency, see Appellant’s Brief at 11, that claim
    was not raised in his Rule 1925(b) statement. Therefore, for that reason, it
    is also waived. See Pa.R.A.P. 1925(b)(4)(vii) (“Issues not included in the
    Statement and/or not raised in accordance with the provisions of this
    paragraph (b)(4) are waived.”).
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    Appellant’s next five issues allege [the] ineffective assistance of his
    trial counsel, Kenneth Sottile, Esq.    We review such claims under the
    following standard:
    [A] PCRA petitioner will be granted relief [on such a claim] only
    when he proves, by a preponderance of the evidence, that his
    conviction or sentence resulted from the “[i]neffective 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.” 42
    Pa.C.S. § 9543(a)(2)(ii). “Counsel is presumed effective, and to
    rebut that presumption, the PCRA petitioner must demonstrate
    that counsel's performance was deficient and that such
    deficiency prejudiced him.” [Commonwealth v.] Colavita, 606
    Pa. [1,] 21, 993 A.2d [874,] 886 [(Pa. 2010)] (citing
    Strickland[ v. Washington, 
    104 S.Ct. 2053
     (1984)]). In
    Pennsylvania, we have refined the Strickland performance and
    prejudice test into a three-part inquiry. See [Commonwealth
    v.] Pierce, [
    515 Pa. 153
    , 
    527 A.2d 973
     (Pa. 1987)]. Thus, to
    prove counsel ineffective, the petitioner must show that: (1) his
    underlying claim is of arguable merit; (2) counsel had no
    reasonable basis for his action or inaction; and (3) the petitioner
    suffered actual prejudice as a result. Commonwealth v. Ali,
    
    608 Pa. 71
    , 86, 
    10 A.3d 282
    , 291 (2010). “If a petitioner fails to
    prove any of these prongs, his claim fails.” Commonwealth v.
    Simpson, [620] Pa. [60, 73], 
    66 A.3d 253
    , 260 (2013) (citation
    omitted).      Generally,   counsel's   assistance    is  deemed
    constitutionally effective if he chose a particular course of
    conduct that had some reasonable basis designed to effectuate
    his client's interests. See Ali, 
    supra.
     Where matters of strategy
    and tactics are concerned, “[a] finding that a chosen strategy
    lacked a reasonable basis is not warranted unless it can be
    concluded that an alternative not chosen offered a potential for
    success substantially greater than the course actually pursued.”
    Colavita, 606 Pa. at 21, 993 A.2d at 887 (quotation and
    quotation marks omitted). To demonstrate prejudice, the
    petitioner must show that “there is a reasonable probability that,
    but for counsel's unprofessional errors, the result of the
    proceedings would have been different.” Commonwealth v.
    King, 
    618 Pa. 405
    , 
    57 A.3d 607
    , 613 (2012) (quotation,
    quotation marks, and citation omitted). “‘[A] reasonable
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    probability is a probability that is sufficient to undermine
    confidence in the outcome of the proceeding.’” Ali, 
    608 Pa. at
    86–87, 
    10 A.3d at 291
     (quoting Commonwealth v. Collins,
    
    598 Pa. 397
    , 
    957 A.2d 237
    , 244 (2008) (citing Strickland, 466
    U.S. at 694, 
    104 S.Ct. 2052
    )).
    Commonwealth v. Spotz, 
    84 A.3d 294
    , 311-12 (Pa. 2014).
    In Appellant’s second issue on appeal, he maintains that Attorney
    Sottile acted ineffectively by not calling “Ms. Alderman, [Appellant’s]
    counselor[,]” as a witness at trial. Appellant’s Brief at 12. Appellant claims
    that he told Ms. Alderman about the abuse he suffered at the hands of
    correctional officers and, therefore, “[h]er [testimony] would have been
    instrumental in explaining to the court why [Appellant] felt the need to use
    force in protecting himself against the correctional officers.” 
    Id.
     Appellant
    speculates that “Attorney Sottile took no steps in seeking [this witness] out.”
    
    Id.
       Appellant also stresses that “Attorney Sottile did not subpoena Ms.
    Alderman, and was not present at the evidentiary hearing to explain his
    inaction.” 
    Id.
    Appellant’s argument fails for several reasons. Initially, he did not call
    Ms. Alderman to the stand at the PCRA hearing to verify that she would have
    been willing to testify at his trial, and that her testimony would have
    benefitted his defense. Accordingly, Appellant has not proven that Attorney
    Sottile was ineffective for failing to call her to the stand at trial.     See
    Commonwealth v. Washington, 
    927 A.2d 586
    , 599 (Pa. 2007) (“To
    establish that counsel was ineffective for failing to call a witness, [an]
    [a]ppellant must demonstrate that: (1) the witness existed; (2) the witness
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    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.”) (citation omitted; emphasis added).
    Additionally, Appellant seemingly suggests that Attorney Sottile had a
    duty to attend the PCRA hearing and defend his decision not to call Ms.
    Alderman to the stand. Appellant is incorrect; it is well-established that we
    presume that Attorney Sottile acted effectively, and the burden rests solely
    with Appellant to prove otherwise.      See Washington, 927 A.2d at 599
    (“Failure to call a witness is not per se ineffective assistance of counsel, for
    such a decision implicates matters of trial strategy. It is [the] [a]ppellant’s
    burden to demonstrate that trial counsel had no reasonable basis for
    declining to call [the] … witness.”).      Here, Appellant chose not to call
    Attorney Sottile to the stand at the PCRA hearing.      Nothing in the record
    suggests that Attorney Sottile was unavailable to testify at that proceeding.
    Instead, Appellant’s PCRA counsel stated at the end of the hearing that he
    believed he was “not required to call” Attorney Sottile to prove Appellant’s
    IAC claims.   N.T. PCRA Hearing, 5/20/15, at 58.        PCRA counsel instead
    believed that he could solely rely on Appellant’s testimony to establish
    counsel’s ineffectiveness. Id.
    Unfortunately for Appellant, his testimony alone is insufficient to prove
    that Attorney Sottile’s decision not to call Ms. Alderman to the stand
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    amounted to ineffective representation. As the Commonwealth points out,
    Attorney Sottile “may have believed that [Ms. Alderman’s testimony] would
    ultimately hurt [Appellant’s] case by not supporting his fanciful allegations of
    abuse” by the correctional officers.        Commonwealth’s Brief at 6.     Because
    Appellant failed to call Attorney Sottile to testify at the PCRA hearing, there
    was no evidence regarding why counsel chose not to call Ms. Alderman, nor
    any way to determine if his decision was unreasonable.                Consequently,
    Appellant’s first IAC claim fails.
    The same is true for Appellant’s next claim of ineffectiveness, in which
    he argues that Attorney Sottile failed to properly investigate the abuse that
    Appellant claims he suffered at the hands of correctional officers at SCI
    Cresson.      Appellant again speculates that Attorney Sottile failed to
    investigate    his   abuse   allegations,    stating   that   “[t]o   [Appellant’s]
    knowledge, Attorney Sottile did not seek out any information regarding the
    abuse….”      Appellant’s Brief at 14 (emphasis added).         Appellant failed to
    present any evidence at the PCRA hearing to support his bald assertion that
    Attorney Sottile failed to sufficiently investigate his claims of abuse. Indeed,
    he even attached to his amended petition a document that proves the
    opposite conclusion. Specifically, Appellant attached a letter drafted by the
    Department of Corrections (DOC) in response to a request from Attorney
    Sottile for various documents, including any records of abuse complaints
    made by Appellant and/or other inmates against correctional officers. See
    Attachments to Appellant’s Amended PCRA Petition/Petition for Discovery,
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    J-S78005-16
    filed 8/13/14.   Therefore, Appellant’s own petition belies his unsupported
    assertion that Attorney Sottile failed to investigate his allegations that he
    was abused by correctional officers.
    In Appellant’s fourth issue, he asserts that Attorney Sottile was
    ineffective because counsel “took no action to limit introduction of the video
    of the incident.” Appellant’s Brief at 15. According to Appellant, the video
    should have been suppressed because “there were elements [of] the
    [incident] that the video did not show, such as the presence of a[ Restrictive
    Housing Unit] team member who was previously present during the prior
    abuse of [Appellant]. [The video] also did not show [Appellant’s] offering to
    ‘lock-in’ in his cell, in an effort to avoid further confrontation with the
    correctional officers.” Id.
    Other than his own self-serving testimony, Appellant proffered no
    evidence to establish that the video admitted by the Commonwealth was
    distorted or manipulated; therefore, he has not proven that Attorney Sottile
    had any basis on which to seek suppression of that video.                See
    Commonwealth v. Jones, 
    942 A.2d 903
    , 909 (Pa. Super. 2008) (“[W]here
    an assertion of ineffective assistance of counsel is based upon the failure to
    pursue a suppression motion, proof of the merit of the underlying
    suppression claim is necessary to establish the merit of the ineffective
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    assistance of counsel claim.”) (internal quotation marks and citation
    omitted).4
    Next, Appellant contends that Attorney Sottile was ineffective because
    he “did not question the victim about any specific prior interaction he had
    had with [Appellant], nor did he inquire about how the victim had treated
    him prior to [the] January 2009 assault.            Attorney Sottile simply accepted
    that the victim asserted [that] he did not recall having contact with
    [Appellant].”     Appellant’s Brief at 16.         Appellant goes on to state: “Not
    having testified at the evidentiary hearing, Attorney Sottile could offer no
    reasonable explanation for not having inquired into the subject more during
    his cross-examination of the victim.” 
    Id.
    Again, Appellant’s decision not to call Attorney Sottile to the stand at
    the PCRA hearing does not now permit him to argue that counsel had no
    reasonable basis for the way in which he cross-examined C.O. Bollinger. In
    any event, Appellant acknowledges that Attorney Sottile asked C.O. Bollinger
    ____________________________________________
    4
    Within this same issue, Appellant also contends that Attorney Sottile acted
    ineffectively because there is no “evidence that he attempted to obtain views
    from other cameras on the block for a more complete version of the
    incident.” Appellant’s Brief at 15 (emphasis added). This specific assertion
    was not raised in, nor suggested by, Appellant’s Rule 1925(b) statement,
    which only declared that “trial counsel [was] ineffective for failing to move
    the court to limit the introduction of surveillance video against [Appellant].”
    Pa.R.A.P. 1925(b) Statement, 9/17/15, at 1 (unnumbered). Therefore, this
    argument is waived. See Pa.R.A.P. 1925(b)(4)(vii).
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    J-S78005-16
    if he had had any prior contact with Appellant, to which the officer stated,
    “No, I can’t remember ever having any kind of interaction with him.” N.T.
    Trial, 6/24/10, at 44. Attorney Sottile then asked the officer if he had ever
    written Appellant up or searched his cell. 
    Id.
     C.O. Bollinger replied that it
    was possible, but again stated that he could not “remember [Appellant] at
    all.” 
    Id.
     Nothing in the record of the trial, nor the evidence presented at
    the PCRA hearing, suggests that C.O. Bollinger would have admitted to
    previously abusing Appellant, if only Attorney Sottile had specifically
    questioned him about that alleged abuse. Thus, Appellant has not proven
    that counsel acted unreasonably by not asking C.O. Bollinger such questions,
    or that he was prejudiced by Attorney Sottile’s failure to do so.
    In Appellant’s fifth issue, he contends that Attorney Sottile was
    ineffective for not withdrawing when counsel had “an actual - rather than
    mere[ly] potential - conflict of interest.” Appellant’s Brief at 16. According
    to Appellant, Attorney Sottile sent him a letter prior to trial informing
    Appellant that counsel had a “personal relationship” with the victim. Id. at
    17.    Appellant claims that he “voiced his concern about the conflict, but
    Attorney Sottile ignored his complaint.”       Id. (citing N.T. PCRA Hearing at
    39).   Appellant avers that “Attorney Sottile should have withdrawn after
    discovering he knew the victim.” Id.
    Initially, Appellant overstates that Attorney Sottile’s letter indicated he
    had a ‘personal relationship’ with C.O. Bollinger.        In the letter, counsel
    stated:
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    The last thing I wanted to bring up is that in reviewing the
    file I recalled that C.O. Bollinger used to be a section boss at a
    coalmine [sic] where I was the mine payroll clerk. I know him
    as one of the bosses, occasionally spoke to him at the mine but
    never socialized with him or saw him outside the mine. That
    was over 25 years ago and I did not see him since then. I don’t
    believe it is a problem but I felt it appropriate to point it out to
    you to see if you would have a problem or concern about it.
    See N.T. PCRA Hearing at Exhibit No. 1 (attached to transcript).
    We disagree with Appellant that this letter demonstrates an ‘actual
    conflict’ in Attorney Sottile’s representation of him. Attorney Sottile stated
    that he worked for the same company as C.O. Bollinger 25 years earlier, and
    that he ‘occasionally’ spoke to the officer, but did not socialize with him
    outside of work.   This does not support Appellant’s claim that a ‘personal
    relationship’ existed between C.O. Bollinger and Attorney Sottile at the point
    when they worked together, let alone 25 years later when Attorney Sottile
    represented Appellant. Thus, Appellant has not demonstrated that counsel
    “actively represented conflicting interests….”    Commonwealth v. Collins,
    
    957 A.2d 237
    , 251 (Pa. 2008) (“To show an actual conflict of interest, the
    appellant   must   demonstrate    that:   (1)   counsel   “actively   represented
    conflicting interests”; and (2) those conflicting interests “adversely affected
    his lawyer's performance.”) (citation omitted).
    Additionally, Appellant also cannot show that Attorney Sottile’s
    performance was “adversely affected” by this perceived conflict of interest.
    
    Id.
     Appellant states that, “Attorney Sottile failed to properly cross-examine
    [C.O. Bollinger] at trial; his personal relationship with the victim may have
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    played a role in this failure.” Appellant’s Brief at 17. Appellant’s speculation
    about Attorney Sottile’s motives in cross-examining C.O. Bollinger fails to
    meet his burden of proving he was prejudiced by the purported conflict of
    interest between the officer and counsel.      Thus, Attorney Sottile was not
    ineffective for not withdrawing from representing Appellant due to this
    alleged conflict of interest.
    In Appellant’s final issue on appeal, he avers that the PCRA court erred
    by denying his petition for discovery.
    In PCRA proceedings, discovery is only permitted upon
    leave of court after a showing of exceptional circumstances. 42
    Pa.C.S.A. § 9545(d)(2); Pa.R.Crim.P. 902(E)(1). The PCRA and
    the criminal rules do not define the term “exceptional
    circumstances.” Rather, it is for the trial court, in its discretion,
    to determine whether a case is exceptional and discovery is
    therefore warranted. Commonwealth v. Dickerson, 
    900 A.2d 407
    , 412 (Pa. Super. 2006).
    We will not disturb a court's determination regarding the
    existence of exceptional circumstances unless the court abused
    its discretion. Commonwealth v. Lark, 
    560 Pa. 487
    , 
    746 A.2d 585
    , 591 (2000). An abuse of discretion is not a mere error in
    judgment. Commonwealth v. Riley, 
    19 A.3d 1146
    , 1149 (Pa.
    Super. 2011). Instead, it is a decision based on bias, ill will,
    partiality,    prejudice,   manifest     unreasonableness,     or
    misapplication of law. 
    Id.
     Moreover, we recall that the appellant
    has the duty to convince us an abuse occurred. Commonwealth
    v. Bennett, 
    19 A.3d 541
    , 543 (Pa. Super. 2011).
    Commonwealth v. Frey, 
    41 A.3d 605
    , 611 (Pa. Super. 2012).
    In this case, Appellant claims that the ‘exceptional circumstance’
    warranting discovery is a report issued by the U.S. Department of Justice
    (DOJ), in which the DOJ found that inmates suffering from ‘serious mental
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    illness’ had been mistreated at SCI Cresson, specifically through the
    institution’s use of isolation, excessive force, and other abusive tactics. See
    “Investigation of the State Correctional Institution at Cresson and Notice of
    Expanded Investigation,” 5/31/13 (attached to Appellant’s “Petition for
    Discovery Pursuant to Pa.R.Crim.Pro. 902(E)(1), filed 8/13/14).      Based on
    the DOJ’s report, Appellant requested discovery of various documents,
    including,
    background reports on the correctional officers, the investigative
    reports of the incident, any reports of assaults on staff members
    or other inmates at SCI Cresson in 2009 and 2010, personnel
    files of the correctional officers involved in the incident, shift
    assignment sheets of the officers, pictures of the cell [Appellant]
    was taken to in the restricted housing unit (RHU), and the full
    video of the incident.
    Appellant’s Brief at 18.    According to Appellant, had the court granted
    discovery of these items, he “would have been able to demonstrate the
    abusive nature of the correctional officers involved, thus bolstering his claim
    that he needed to use force to defend himself.” 
    Id.
    After conducting a hearing on Appellant’s petition for discovery, the
    PCRA court ultimately concluded that the DOJ report did not constitute an
    ‘exceptional circumstance’ warranting discovery of the materials requested
    by Appellant. We ascertain no abuse of discretion in that decision. The DOJ
    report relied upon by Appellant was issued over four years after the incident
    underlying his convictions. The report addressed abuse inflicted on inmates
    designated by SCI Cresson officials as suffering from ‘serious mental illness.’
    Appellant has never alleged, nor presented any evidence to prove, that he
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    suffers from a serious mental illness, or that he was designated as such by
    SCI Cresson officials.    Consequently, the PCRA court did not abuse its
    discretion in concluding that the DOJ report did not constitute an
    ‘exceptional circumstance’ warranting discovery in this case.
    In any event, we also point out that even if the PCRA court had
    granted Appellant’s discovery request, any evidence he would have
    unearthed could not possibly support a claim of self-defense.            We have
    reviewed   the   video   recording   of   the   incident   underlying   Appellant’s
    convictions. That video shows two correctional officers approach Appellant
    and exchange words with him, after which the officers walk down a staircase
    and out of the camera’s view. For the next few minutes, Appellant - who is
    6’8” tall and weighs 280 pounds - walks in and out of a cell. Appellant then
    walks down the steps and toward the two officers, who are standing at a
    desk and talking.   Appellant walks up to C.O. Bollinger and punches the
    officer in the face. C.O. Bollinger falls to the ground as two other officers
    converge on Appellant.     Appellant resists the officers’ attempts to subdue
    him, and when C.O. Bollinger then joins in on the struggle, Appellant puts
    him into a headlock. It takes several minutes, and the assistance of multiple
    officers, to finally subdue and handcuff Appellant.
    Based on this video, we fail to see - and Appellant does not explain -
    how evidence that C.O. Bollinger had previously abused him would assist
    Appellant in proving that his attack on C.O. Bollinger was justified in the
    moment in which Appellant struck the unsuspecting officer. See 18 Pa.C.S.
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    J-S78005-16
    § 505(a) (“The use of force upon or toward another person is justifiable
    when the actor believes that such force is immediately necessary for the
    purpose of protecting himself against the use of unlawful force by such other
    person on the present occasion.”).     Consequently, the PCRA court did not
    abuse its discretion in denying Appellant’s request for discovery in order to
    uncover evidence that such abuse occurred.
    In sum, none of Appellant’s seven claims on appeal demonstrates that
    the PCRA court erred or abused its discretion in denying his petition for post-
    conviction relief. Accordingly, we affirm the court’s order.
    Order entered at docket 1379 WDA 2015 affirmed. Appeal docketed at
    1280 WDA 2015 quashed.
    Judge Ott joins this memorandum.
    Justice Fitzgerald concurs in the result.
    Judgment Entered.
    Joseph D. Seletyn, Esq.
    Prothonotary
    Date: 12/2/2016
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