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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
ROBERT JOHN PRETTI
Appellant No. 3390 EDA 2014
Appeal from the PCRA Order October 27, 2014
In the Court of Common Pleas of Delaware County
Criminal Division at No(s): CP-23-CR-0001851-2005;
CP-23-CR-0004226-2005
BEFORE: GANTMAN, P.J., PANELLA, J., and OLSON, J.
MEMORANDUM BY GANTMAN, P.J.: FILED SEPTEMBER 30, 2015
Appellant, Robert John Pretti, appeals from the order entered in the
Delaware County Court of Common Pleas, which denied his first petition
brought pursuant to the Post Conviction Relief Act (“PCRA”).1 We affirm.
In its opinion, the PCRA court fully and correctly sets forth the relevant
facts of this case as follows:
On January 30, 2005, at approximately 6:43 p.m.,
Pennsylvania State Trooper Louis Vitali was on patrol in
Concord Township, Delaware County[,] Pennsylvania,
when he observed a black male running across U.S. Route
1 in what appeared to be a distressed manner. The black
male ran directly in front of the Trooper’s patrol car and
proceeded running in the direction of the Concordville Inn
Restaurant. Trooper Vitali attempted to locate the black
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1
42 Pa.C.S.A. §§ 9541-9546.
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male, but was unsuccessful in this regard. At 7:10 [p.m.],
members of the Pennsylvania State Police were dispatched
to the Whitehall Apartment Complex to answer a call
regarding an unresponsive person. Upon their arrival, they
discovered a black male, later identified as Eric Oswald
LaRoche, lying at the bottom of the steps in the front
hallway entrance, face down in a small pool of blood, with
a gunshot wound to the chest. Subsequently, a paramedic
called to the scene pronounced the victim dead.
While investigating the shooting, members of the
Pennsylvania State Police Department conducted an
investigation and observed a small hole in the middle of
the door of Apartment 2A, which appeared to have been
made by a small caliber bullet. The State Troopers
knocked on the door, but no one responded. The State
Troopers gained access to the apartment to check on the
safety and welfare of the occupants of the apartment, if
any. Upon entry to the apartment, the State Troopers
located in a closet, a .22 caliber rifle case and a box of .22
caliber ammunition. After securing the apartment, a
Search Warrant was obtained and during the subsequent
search, the State Troopers discovered a spent .22 caliber
rifle shell casing, as well as cocaine, bagging material, a
scale and other paraphernalia used in connection with the
sale of illegal narcotics.
Several days later, the State Troopers received a
telephone call from Robert Keller, Esquire, indicating that
he represented Appellant and further indicating that
Appellant wanted to turn himself in and make a statement.
Appellant did in fact turn himself in and after being read
his Miranda Warnings, he made a statement admitting
that he resided in apartment 2A and that on January 30,
2005, he heard persons trying to gain entry through his
front door. Consequently, he obtained his rifle and blindly
shot through the front door.
(PCRA Court’s Opinion, filed January 28, 2015, at 1-2). Appellant was
charged with murder, possession with intent to distribute (“PWID”), and
related offenses. Appellant filed an omnibus pretrial motion, which the court
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denied following a hearing. Thereafter, on April 26, 2007, Appellant filed a
petition to dismiss the charges due to a violation of Pa.R.Crim.P. 600. The
court conducted a hearing, and denied Appellant’s petition on May 17, 2007.
On February 29, 2008, a jury convicted Appellant of third-degree
murder and PWID. The court sentenced Appellant on May 27, 2008, to
fifteen (15) to thirty (30) years’ imprisonment for murder, and a consecutive
eight (8) to twenty (20) years’ imprisonment for PWID. Appellant timely
filed a post-sentence motion, which the court denied. This Court affirmed
Appellant’s judgment of sentence on October 8, 2009, and our Supreme
Court denied allowance of appeal on May 18, 2010. See Commonwealth
v. Pretti, 987 A.2d 822 (Pa.Super. 2009), appeal denied, 606 Pa. 663, 995
A.2d 353 (2010).
Appellant timely filed his first PCRA petition pro se on May 18, 2011.
The PCRA court appointed counsel, who filed an application to withdraw and
a “no-merit” letter pursuant to Commonwealth v. Turner, 518 Pa. 491,
544 A.2d 927 (1988) and Commonwealth v. Finley, 550 A.2d 213
(Pa.Super. 1988) (en banc). The PCRA court granted counsel’s application
to withdraw, and issued on September 17, 2014, a notice of intent to
dismiss Appellant’s petition without a hearing pursuant to Pa.R.Crim.P. 907.
Appellant filed a pro se response, which alleged PCRA counsel’s
ineffectiveness. The PCRA court denied Appellant’s petition on October 27,
2014, and Appellant timely filed a notice of appeal. The PCRA court did not
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order Appellant to file a concise statement of errors complained of on appeal
pursuant to Pa.R.A.P. 1925(b), and Appellant filed none.
Appellant raises the following issues for our review:
DID THE PCRA COURT [ERR] IN SUMMARILY DISMISSING
APPELLANT’S PETITION WHEN PCRA COUNSEL FAILED TO
RAISE A MERITORIOUS CLAIM OF TRIAL COUNSEL’S
INEFFECTIVENESS FOR NOT REQUESTING AN
ACCOMPLICE “CORRUPT SOURCE” JURY INSTRUCTION
PERTAINING TO COMMONWEALTH WITNESS BRIAN “LOU”
DRIGGINS?
DID THE PCRA COURT [ERR] IN SUMMARILY DISMISSING
APPELLANT’S PETITION WHEN PCRA COUNSEL FAILED TO
RAISE A MERITORIOUS CLAIM OF TRIAL COUNSEL’S
INEFFECTIVENESS FOR FLIP-FLOPPING ON THE ACTUAL
INNOCENCE DEFENSE DURING CLOSING SUMMATION?
DID THE PCRA COURT [ERR] IN SUMMARILY DISMISSING
APPELLANT’S PETITION WHEN PCRA COUNSEL’S “NO-
MERIT” LETTER DID NOT MEET THE PREREQUISITES OF
TURNER/FINLEY BECAUSE [PCRA] COUNSEL DID NOT
MAKE THE NECESSARY THOROUGH REVIEW OF THE
RELEVANT RECORD PERTAINING TO THE RULE 600
CLAIM?
(Appellant’s Brief at 3).
Our standard of review of the denial of a PCRA petition is limited to
examining whether the evidence of record supports the court’s
determination and whether its decision is free of legal error.
Commonwealth v. Conway, 14 A.3d 101 (Pa.Super. 2011), appeal denied,
612 Pa. 687, 29 A.3d 795 (2011). This Court grants great deference to the
findings of the PCRA court if the record contains any support for those
findings. Commonwealth v. Boyd, 923 A.2d 513 (Pa.Super. 2007), appeal
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denied, 593 Pa. 754, 932 A.2d 74 (2007). We give no such deference,
however, to the court’s legal conclusions. Commonwealth v. Ford, 44
A.3d 1190, 1194 (Pa.Super. 2012). Further, a petitioner is not entitled to a
PCRA hearing as a matter of right; the PCRA court can decline to hold a
hearing if there is no genuine issue concerning any material fact, the
petitioner is not entitled to PCRA relief, and no purpose would be served by
any further proceedings. Commonwealth v. Wah, 42 A.3d 335, 338
(Pa.Super. 2012).
In issues one and two, Appellant argues PCRA counsel was ineffective
for failing to raise claims regarding trial counsel’s ineffectiveness. Appellant
alleges trial counsel was ineffective for failing to request an accomplice jury
instruction after the Commonwealth’s witness, Mr. Driggins, testified he and
the victim went to Appellant’s apartment to buy drugs, and that Mr. Driggins
was waiting outside when Appellant killed the victim. Appellant claims trial
counsel lacked any reasonable basis not to request this instruction following
Appellant’s testimony that Mr. Driggins, and not Appellant, killed the victim
while Mr. Driggins was in Appellant’s apartment. Appellant contends trial
counsel’s ineffectiveness prejudiced Appellant because the jury was not
cautioned against placing too much blame on Appellant. Appellant also
claims trial counsel was ineffective for changing Appellant’s defense strategy
of “actual innocence” when trial counsel argued in closing that Appellant
killed the victim in self-defense. Appellant avers trial counsel lacked a
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reasonable basis to change Appellant’s defense strategy, which sabotaged
Appellant’s “actual innocence” testimony. Appellant alleges he suffered
substantial prejudice because trial counsel’s closing argument of self-defense
conceded that Appellant had committed perjury when he testified that Mr.
Driggins had killed the victim. Appellant maintains PCRA counsel’s failure to
raise these claims in an amended PCRA petition constituted ineffective
assistance, and counsels’ actions adversely affected the outcome of the
proceedings. Appellant concludes we should vacate the PCRA court’s order,
and remand for a PCRA hearing with new counsel. We disagree.
The law presumes counsel has rendered effective assistance.
Commonwealth v. Williams, 597 Pa. 109, 950 A.2d 294 (2008). When
asserting a claim of ineffective assistance of counsel, the petitioner is
required to demonstrate that: (1) the underlying claim is of arguable merit;
(2) counsel had no reasonable strategic basis for his action or inaction; and,
(3) but for the errors and omissions of counsel, there is a reasonable
probability that the outcome of the proceedings would have been different.
Commonwealth v. Kimball, 555 Pa. 299, 724 A.2d 326 (1999). The
failure to satisfy any prong of the test for ineffectiveness will cause the claim
to fail. Williams, supra.
“The threshold inquiry in ineffectiveness claims is whether the
issue/argument/tactic which counsel has foregone and which forms the basis
for the assertion of ineffectiveness is of arguable merit….” Commonwealth
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v. Pierce, 537 Pa. 514, 524, 645 A.2d 189, 194 (1994). “Counsel cannot
be found ineffective for failing to pursue a baseless or meritless claim.”
Commonwealth v. Poplawski, 852 A.2d 323, 327 (Pa.Super. 2004).
Once this threshold is met we apply the ‘reasonable basis’
test to determine whether counsel’s chosen course was
designed to effectuate his client’s interests. If we conclude
that the particular course chosen by counsel had some
reasonable basis, our inquiry ceases and counsel’s
assistance is deemed effective.
Pierce, supra at 524, 645 A.2d at 194-95 (internal citations omitted).
Prejudice is established when [an appellant] demonstrates
that counsel’s chosen course of action had an adverse
effect on the outcome of the proceedings. The [appellant]
must show that there is a reasonable probability that, but
for counsel’s unprofessional errors, the result of the
proceeding would have been different. A reasonable
probability is a probability sufficient to undermine
confidence in the outcome. In [Kimball, supra], we held
that a “criminal [appellant] alleging prejudice must show
that counsel’s errors were so serious as to deprive the
defendant of a fair trial, a trial whose result is reliable.”
Commonwealth v. Chambers, 570 Pa. 3, 21-22, 807 A.2d 872, 883
(2002) (some internal citations and quotation marks omitted).
Instantly, Appellant’s claims regarding PCRA and trial counsels’
ineffectiveness lack merit. Appellant argues counsels’ ineffectiveness had an
adverse impact on the outcome of the proceedings. Nevertheless, Appellant
has not demonstrated that, but for trial and PCRA counsels’ alleged
ineffectiveness, there is a reasonable probability that the result of
Appellant’s proceedings would have been different. See Chambers, supra.
Appellant has failed to prove counsels’ actions or omissions caused Appellant
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any prejudice. See Kimball, supra. Therefore, Appellant’s issues one and
two merit no relief. See Williams, supra.
In his final issue, Appellant argues PCRA counsel’s Turner/Finley “no-
merit” letter was deficient.2 Specifically, Appellant contends PCRA counsel
conducted an inadequate review of Appellant’s Rule 600 claim by failing to
request a transcript from the Rule 600 hearing. Appellant maintains PCRA
counsel’s representation was deficient because he was obligated to examine
all relevant records pertaining to Appellant’s Rule 600 issue before
submitting a Turner/Finley “no-merit” letter. Appellant concludes we
should vacate and remand for a hearing with new counsel. We disagree.
“[T]o succeed on an allegation of…counsel’s ineffectiveness…a post-
conviction petitioner must, at a minimum, present argumentation relative to
each layer of ineffective assistance, on all three prongs of the ineffectiveness
standard….” Commonwealth v. D’Amato, 579 Pa. 490, 500, 856 A.2d
806, 812 (2004) (internal citations omitted). “[A] petitioner does not
preserve a…claim of ineffectiveness merely by focusing his attention on
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2
“[A]n appellate court may [not] sua sponte review the sufficiency of a no-
merit letter when the defendant has not raised such issue….”
Commonwealth v. Pitts, 603 Pa. 1, 9, 981 A.2d 875, 879 (2009)
(determining appellant failed to raise issue of PCRA counsel’s “no-merit”
letter after PCRA court issued Rule 907 notice). In the present case,
Appellant challenged the adequacy of PCRA counsel’s “no-merit” letter in his
response to the PCRA court’s Rule 907 notice. Therefore, our review of
PCRA counsel’s “no-merit” letter does not conflict with our Supreme Court’s
decision in Pitts.
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whether…counsel was ineffective. Rather, the petitioner must also present
argument as to how the second and third prongs of the Pierce test are met
with regard to the…claim.” Commonwealth v. Santiago, 579 Pa. 46, 69,
855 A.2d 682, 696 (2004). “[A]n undeveloped argument, which fails to
meaningfully discuss and apply the standard governing the review of
ineffectiveness claims, simply does not satisfy [the petitioner’s] burden of
establishing that he is entitled to any relief.” Commonwealth v. Bracey,
568 Pa. 264, 273 n.4, 795 A.2d 935, 940 n.4 (2001).
Moreover, “[b]efore 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) (emphasis in original).
[C]ounsel must…submit a “no-merit” letter to the trial
court, or brief on appeal to this Court, detailing the nature
and extent of counsel’s diligent review of the case, listing
the issues which the petitioner wants to have reviewed,
explaining why and how those issues lack merit, and
requesting permission to withdraw.
Commonwealth v. Wrecks, 931 A.2d 717, 721 (Pa.Super. 2007). Counsel
must also send to the petitioner a copy of the “no-merit” letter or brief and
petition to withdraw and advise the petitioner of his right to proceed pro se
or with new counsel. Id. “Substantial compliance with these requirements
will satisfy the criteria.” Karanicolas, supra.
Here, Appellant’s argument essentially alleges PCRA counsel’s
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ineffectiveness for failure to comply with the requirements of
Turner/Finley. Appellant baldly asserts his right to effective assistance of
PCRA counsel. Nevertheless, Appellant does not attempt to apply the 3-part
standard governing the review of ineffectiveness claims. See Kimball,
supra. Thus, Appellant has not established that he is entitled to any relief
on his claims. See Bracey, supra.
Furthermore, PCRA counsel substantially complied with the
requirements of a Turner/Finley “no-merit” letter when he filed the letter
and application to withdraw as counsel with the PCRA court. PCRA counsel
stated he corresponded with Appellant and reviewed Appellant’s file and
available court records. PCRA counsel also listed the ineffective assistance
of counsel claim regarding Rule 600 that Appellant wished to raise, and
explained why the claim merits no relief. PCRA counsel indicated that he
served Appellant with a copy of the “no-merit” letter and application to
withdraw, which notified Appellant of PCRA counsel’s request to withdraw
and provided an explanation of Appellant’s right to proceed pro se or with
private counsel. Thus, PCRA counsel substantially complied with the
Turner/Finley requirements. See Commonwealth v. Widgins, 29 A.3d
816 (Pa.Super. 2011) (holding PCRA counsel substantially complied with
Turner/Finley requirements to withdraw as counsel); Karanicolas, supra.
Accordingly, we affirm.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/30/2015
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