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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
GREGORY GRAHAM,
Appellant No. 3527 EDA 2014
Appeal from the PCRA Order of October 8, 2014
In the Court of Common Pleas of Delaware County
Criminal Division at No(s): CP-23-CR-0004271-2010
BEFORE: MUNDY, OLSON and MUSMANNO, JJ.
MEMORANDUM BY OLSON, J.: FILED SEPTEMBER 21, 2015
Appellant, Gregory Graham, appeals from the order entered on
October 8, 2014, dismissing his petition filed pursuant to the Post Conviction
Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. Upon review, we affirm.
We briefly set forth the facts and procedural history of this case as
follows. On September 21, 2009, Isaiah McLendon was shot and killed on
the steps of a house located on North 3rd Street in Darby, PA. An eyewitness
identified Mark Williams as the shooter and Appellant as the getaway driver.
Appellant entered an open guilty plea to third-degree murder and conspiracy
to commit aggravated assault.1 In exchange, Appellant testified against
Mark Williams at Williams’ trial. On March 1, 2011, the trial court sentenced
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1
18 Pa.C.S.A. §§ 2502(c) and 901, respectively.
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Appellant to 10 to 20 years of imprisonment for third-degree murder and a
concurrent term of five to 10 years of imprisonment for conspiracy. On
direct appeal, this Court affirmed Appellant’s judgment of sentence. See
Commonwealth v. Graham, 46 A.3d 810 (Pa. Super. 2011) (unpublished
memorandum).
On February 14, 2013, Appellant filed a pro se PCRA petition. The
PCRA court appointed counsel to represent Appellant. On June 21, 2013,
PCRA counsel filed a “no merit” brief pursuant to Commonwealth v.
Turner, 544 A.2d 927 (Pa. 1988) and Commonwealth v. Finley, 550 A.2d
213 (Pa. Super. 1988) (en banc). On July 5, 2013, Appellant, pro se, sought
to amend his PCRA petition. On July 16, 2013, pursuant to Pa.R.Crim.P.
907, the PCRA court filed a notice of intent to dismiss the PCRA petition
without an evidentiary hearing. On July 30, 2013, Appellant filed pro se
objections to the PCRA court’s Rule 907 notice. On August 22, 2013,
Appellant filed a pro se motion for a hearing pursuant to Commonwealth v.
Grazier, 713 A.2d 81 (Pa. 1998). On September 27, 2013, the PCRA court
entered an order dismissing Appellant’s PCRA petition without an evidentiary
hearing.
A timely pro se appeal followed. In its opinion pursuant to Pa.R.A.P.
1925(a), the PCRA court acknowledged that it did not consider Appellant’s
pro se objections to the Rule 907 notice or his request for a Grazier
hearing, because it did not receive those filings. Thus, the PCRA court
requested we remand the case so it could address Appellant’s pro se
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contentions. The Commonwealth agreed. On July 22, 2014, a panel of this
Court entered a judgment order remanding the case for the PCRA court to
consider Appellant’s pro se PCRA filings.
On October 8, 2014, the PCRA court entered an order, and
accompanying opinion, granting appointed counsel’s motion to withdraw,
denying Appellant’s request for a Grazier hearing, and dismissing
Appellant’s PCRA petition. The PCRA court determined that a Grazier
hearing was not necessary because appointed counsel properly followed the
mandates of Turner/Finley and the PCRA court then permitted counsel to
withdraw. The PCRA court concluded it must hold a Grazier hearing only in
instances when a defendant seeks self-representation where counsel has not
properly withdrawn. In the October 8, 2014 opinion, the PCRA court also
addressed the issues raised in Appellant’s pro se response to the court’s Rule
907 notice. Those issues included claims of ineffective assistance of counsel
pertaining to Appellant’s negotiated guilty plea and credit for time served for
time he spent in jail in Florida, as well as an unspecified violation under
Brady v. Maryland, 373 U.S. 83, 8 (1963). This timely pro se appeal
followed.2
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2
Appellant filed a pro se notice of appeal on November 3, 2014. On
December 31, 2014, the PCRA court entered an order pursuant to Pa.R.A.P.
1925(b) directing Appellant to file a concise statement of errors complained
of on appeal. Appellant complied timely asserting that the PCRA erred as a
matter of law by failing to hold a Grazier hearing. The PCRA court filed an
opinion pursuant to Pa.R.A.P. 1925(a) on January 30, 2015.
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Appellant presents the following pro se issue for our review:
Did the PCRA [c]ourt commit an error of law and/or abuse
its discretion in violating the law of the case doctrine and
stare decisis, by failing to provide [Appellant] with a
Grazier [c]olloquy upon remand as directed by the Superior
Court [o]rder dated July 22, 2014?
Appellant’s Brief at 4.
Appellant claims that this Court’s prior judgment order concluded that
the PCRA court erred by failing to hold a Grazier hearing and remanded the
case for such a proceeding. Id. at 7-8. Thus, Appellant claims that the
PCRA court erred by failing to hold a Grazier hearing. Id. Citing our
Court’s decision in Commonwealth v. Robinson, 970 A.2d 455 (Pa. Super.
2009) (en banc), Appellant contends he was entitled to a Grazier hearing to
determine whether he knowingly waived his right to counsel. Id. at 7.
Appellant also baldly addresses his prior ineffective assistance of counsel
claims pertaining to the entry of his guilty plea and credit for time served in
custody in Florida. Id. at 8.
In reviewing the denial of PCRA relief,
we examine whether the PCRA court's determinations are
supported by the record and are free of legal error.
* * *
The PCRA court has the discretion to dismiss a petition
without a hearing when the court is satisfied that there are
no genuine issues concerning any material fact, the
defendant is not entitled to post-conviction collateral relief,
and no legitimate purpose would be served by further
proceedings. To obtain reversal of a PCRA court's decision
to dismiss a petition without a hearing, an appellant must
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show that he raised a genuine issue of fact which, if
resolved in his favor, would have entitled him to relief, or
that the court otherwise abused its discretion in denying a
hearing. [Our Supreme Court has] stress[ed] that an
evidentiary hearing is not meant to function as a fishing
expedition for any possible evidence that may support some
speculative claim of ineffectiveness.
Commonwealth v. Roney, 79 A.3d 595, 603-605 (Pa. 2013) (internal
citations and quotations omitted).
Initially, we note that the prior panel’s judgment order did not
specifically direct the PCRA court to hold a Grazier hearing. Instead, we
remanded the case “for the PCRA court’s consideration of [Appellant’s] pro
se filings” which included “a motion for a Grazier hearing[.]” Judgment
Order, 7/22/2014, at 2.
In Robinson, the case cited by Appellant, an en banc panel of this
Court held “that in any case where a defendant seeks self-representation in
a PCRA proceeding and where counsel has not properly withdrawn, a
hearing must be held.” Robinson, 970 A.2d at 456 (emphasis supplied).
While a PCRA petitioner is entitled to the effective assistance of counsel in
prosecuting a first PCRA petition, no attorney, whether appointed or
privately retained, is required to pursue a meritless PCRA action. Turner,
544 A.2d at 928. “Before an attorney can be permitted to withdraw from
representing a petitioner under the PCRA, Pennsylvania law requires counsel
to file and obtain approval of a ‘no-merit’ letter pursuant to the mandates of
Turner/Finley.” Commonwealth v. Karanicolas, 836 A.2d 940, 947 (Pa.
Super. 2003). “The ‘no-merit’ letter should include a description of the
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nature and extent of the attorney's review, a list of the issues that the PCRA
petitioner wishes to have reviewed, and an explanation of why the issues
lack merit.” Id. Counsel must also notify the appellant that counsel is filing
a petition to withdraw and provide him with a copy of the withdrawal
petition, as well as, inform the appellant of his right to obtain private
counsel, proceed pro se, and/or to file a supplemental brief. See
Commonwealth v. Dukeman, 605 A.2d 418, 420 (Pa. Super. 1992). “The
PCRA petitioner then may proceed pro se, by privately retained counsel, or
not at all.” Id.
Here, upon review of the certified record, appointed counsel followed
the proper procedure for withdrawing under Turner/Finley. On June 21,
2013, appointed counsel filed an application to withdraw along with a no-
merit letter and a copy of a letter advising Appellant that he must proceed
with privately retained counsel or pro se. See generally Application to
Withdraw Appearance, 6/21/2013. On August 22, 2013, Appellant filed a
pro se motion for a Grazier hearing. Motion for Grazier Hearing,
8/22/2013. More specifically, Appellant averred that “irreconcilable
differences” arose between him and counsel because counsel refused to
communicate with Appellant or reasonably investigate his PCRA claims. Id.
at 1, ¶ 6. Appellant requested the right to represent himself. Id. at 1-2, ¶
7. A Grazier hearing would have been required if appointed counsel had
not petitioned to withdraw and remained counsel. Robinson, 970 A.2d at
456. However, when the PCRA court granted appointed counsel’s request to
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withdraw on October 8, 2014, Appellant received the same relief that he
requested through a Grazier hearing – the ability to proceed pro se. Hence,
we agree with the PCRA court that a Grazier hearing was unnecessary. In
fact, the issue is technically moot, because “[a]n issue before a court is
moot if in ruling upon the issue the court cannot enter an order that has any
legal force or effect.” Commonwealth v. Nava, 966 A.2d 630, 632-633
(Pa. Super. 2009) (citations omitted). In this case, the requested relief was
already granted.
Finally, with regard to Appellant’s ineffective assistance of counsel
claims, we find those issues waived. Appellant did not list those issues in his
concise statement of errors complained of on appeal pursuant to Pa.R.A.P.
1925(b). See Commonwealth v. Hansley, 24 A.3d 410, 415 (Pa. Super.
2011) (“issues not raised in a Rule 1925(b) statement will be deemed
waived for review”). Moreover, to prevail on an ineffectiveness claim, an
appellant must establish:
(1) the underlying claim has arguable merit; (2) no
reasonable basis existed for counsel's actions or failure to
act; and (3) appellant suffered prejudice as a result of
counsel's error such that there is a reasonable probability
that the result of the proceeding would have been different
absent such error.
Commonwealth v. Fears, 86 A.3d 795, 804 (Pa. 2014) (brackets omitted).
“When an appellant fails to meaningfully discuss each of the three
ineffectiveness prongs, he is not entitled to relief, and we are constrained to
find such claims waived for lack of development.” Id. (internal quotation
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and citation omitted). Here, Appellant did not set forth the law applicable to
counsel ineffectiveness, let alone discuss each of the prongs. For these
reasons, Appellant waived his ineffective assistance of counsel claims.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/21/2015
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