J-S58019-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
KEVIN MITCHELL, JR.,
Appellant No. 724 MDA 2015
Appeal from the PCRA Order of March 30, 2015
In the Court of Common Pleas of Lebanon County
Criminal Division at No(s): CP-38-CR-0001268-2008
BEFORE: GANTMAN, P.J., OLSON AND PLATT,* JJ.
MEMORANDUM BY OLSON, J.: FILED DECEMBER 04, 2015
Appellant, Kevin Mitchell, Jr., appeals from the order entered on March
30, 2015, dismissing his first petition pursuant to the Post Conviction Relief
Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. Counsel filed a petition to
withdraw from further representation and a brief pursuant to Anders v.
California, 386 U.S. 738 (1967).1 Upon review, we grant counsel’s petition
to withdraw and affirm the dismissal of Appellant’s PCRA petition.
____________________________________________
1
Counsel filed a brief pursuant to Anders, apparently in the mistaken belief
that an Anders brief is required where counsel seeks to withdraw on appeal
from the denial of PCRA relief. A Turner/Finley no-merit letter, however, is
the appropriate filing. See Commonwealth v. Turner, 544 A.2d 927 (Pa.
1988); Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en
banc). However, because an Anders brief provides greater protection to a
defendant, this Court may accept an Anders brief in lieu of a Turner/Finley
letter. Commonwealth v. Widgins, 29 A.3d 816, 817 (Pa. Super. 2011).
* Retired Senior Judge assigned to the Superior Court.
J-S58019-15
On direct appeal, we summarized the facts and history of this case as
follows:
On May 24, 2009, officers from the Lebanon County Police
Department conducted a search of Appellant’s apartment.
Police recovered a nylon bag containing three grams of
crack cocaine, a straw, and a razor blade from inside the
refrigerator. In addition, in various other rooms, police
found two digital scales and an envelope containing a large
quantity of plastic baggies. Appellant admitted to police that
he was unemployed and purchased the crack cocaine with
the intent to sell it.
The Commonwealth charged Appellant with various
narcotics related offenses. The trial court scheduled a jury
trial to begin on September 18, 2009. That day, Appellant
made an oral motion to suppress his statements made to
police. The trial court denied the request as untimely. The
matter proceeded to trial and a jury found Appellant guilty
of the aforementioned crimes. The trial court sentenced
Appellant to an aggregate term of five to 10 years of
imprisonment.
Commonwealth v. Mitchell, 40 A.3d 201 (Pa. Super. 2011) (unpublished
memorandum). We affirmed Appellant’s judgment of sentence on appeal.
Id. Our Supreme Court denied further review. Commonwealth v.
Mitchell, 69 A.3d 601 (Pa. 2013).
On June 6, 2014, Appellant filed a pro se PCRA petition, alleging five
claims of ineffective assistance of trial counsel. The PCRA court appointed
counsel to represent Appellant. The PCRA court held a hearing on March 20,
-2-
J-S58019-15
2015. On March 30, 2015, the PCRA court filed an order and accompanying
opinion denying Appellant relief. This timely appeal resulted.2
On appeal, Appellant’s counsel included the following issue in his brief:
1. Does an examination of the record provide any basis for
any arguments supporting reversal or modification of the
order in question?
Appellant’s Brief at 2.
Prior to reviewing the merits of this appeal, we first decide whether
counsel fulfilled the procedural requirements for withdrawing as counsel.
Commonwealth v. Doty, 48 A.3d 451, 454 (Pa. Super. 2012). As we
have explained:
Counsel petitioning to withdraw from PCRA representation
must proceed ... under Turner, supra and Finley, supra
and must review the case zealously. Turner/Finley
counsel must then 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 petitioner wants to have reviewed,
explaining why and how those issues lack merit, and
requesting permission to withdraw.
Counsel must also send to the petitioner: (1) a copy of the
“no merit” letter/brief; (2) a copy of counsel's petition to
withdraw; and (3) a statement advising petitioner of the
right to proceed pro se or by new counsel.
* * *
____________________________________________
2
Counsel for Appellant filed a notice of appeal on April 21, 2015. On the
same day, counsel also filed a statement of errors complained of on appeal
pursuant to Pa.R.A.P. 1925(c)(4), stating that he intended to file an Anders
brief. On April 30, 2015, the PCRA court filed an order relying upon its April
2, 2015 decision.
-3-
J-S58019-15
Where counsel submits a petition and no-merit letter that ...
satisfy the technical demands of Turner/Finley, the court—
trial court or this Court—must then conduct its own review
of the merits of the case. If the court agrees with counsel
that the claims are without merit, the court will permit
counsel to withdraw and deny relief.
Id.
Here, counsel satisfied all of the above procedural requirements and
Appellant has not responded to counsel’s request to withdraw. Thus, having
concluded that counsel's petition to withdraw is Turner/Finley compliant,
we now undertake our own review of the case to consider whether the PCRA
court erred in dismissing Appellant's petition.
In reviewing the denial of PCRA relief,
we examine whether the PCRA court's determination is
supported by the record and free of legal error. To be
entitled to PCRA relief, an appellant must establish, by a
preponderance of the evidence, that his conviction or
sentence resulted from one or more of the enumerated
errors in 42 Pa.C.S.A. § 9543(a)(2); his claims have not
been previously litigated or waived, id. § 9543(a)(3); and
the failure to litigate the issue prior to or during trial or on
direct appeal could not have been the result of any rational,
strategic, or tactical decision by counsel. Id. § 9543(a)(4).
Commonwealth v. Montalvo, 2015 WL 1888580, at *7 (Pa. 2015)
(quotations, ellipsis and some citations omitted).
Counsel for Appellant identifies three issues for our review.
Specifically, Appellant alleges trial counsel was ineffective for failing to: (1)
meet with Appellant prior to trial, (2) provide Appellant with discovery
-4-
J-S58019-15
materials, and (3) move to suppress certain statements Appellant made to
police. Appellant’s Brief at 5-6.
Our Supreme Court stated:
In order to obtain relief on a claim of ineffectiveness of
counsel, a PCRA petitioner must satisfy the performance
and prejudice test set forth in Strickland v. Washington,
466 U.S. 668 (1984). In Pennsylvania, we have applied the
Strickland test by requiring that a petitioner establish that
(1) the underlying claim has arguable merit; (2) no
reasonable basis existed for counsel's action or failure to
act; and (3) the petitioner suffered prejudice as a result of
counsel's error, with prejudice measured by whether there
is a reasonable probability that the result of the proceeding
would have been different. In other words, prejudice is
assessed in terms of whether the petitioner has shown that
the demonstrated ineffectiveness sufficiently undermines
confidence in the verdict. Counsel is presumed to have
rendered effective assistance, and, if a claim fails under any
required element of the Strickland test, the court may
dismiss the claim on that basis.
Montalvo, 2015 WL 1888580, at *8 (quotations and some citations
omitted). Additionally, “[w]e are bound by the PCRA court's supported
credibility determinations.” Commonwealth v. Treiber, 121 A.3d 435, 451
n.11 (Pa. 2015).
Here, the PCRA court determined that trial counsel adequately
consulted with Appellant prior to trial. PCRA Court Order, 4/2/2015, at 1-2
(unpaginated). Upon review of the record, trial counsel testified he met with
Appellant “nine, ten or more times” to discuss the case prior to trial. N.T.,
3/20/2015, at 17. The trial court found defense counsel credible. We will
-5-
J-S58019-15
not usurp that determination. As such, there is no merit to Appellant’s claim
that trial counsel was ineffective for failing to meet with him before trial.
Next, the PCRA court concluded Appellant received the
Commonwealth’s discovery from trial counsel. PCRA Court Order, 4/2/2015,
at 2. Trial counsel testified that he provided all of the discovery material to
Appellant between one to two months prior to trial. N.T., 3/2/0/2015, at 19.
The PCRA credited defense counsel’s testimony and, again, we will not
disturb that finding. Thus, there is no merit to Appellant’s claim that trial
counsel was ineffective for failing to turn over discovery.
Finally, the PCRA recognized that Appellant did not claim that his
statements to police following his arrest were made in violation of his rights
pursuant to Miranda v. Arizona, 384 U.S. 436 (1966). Instead, Appellant
claimed that he never made inculpatory statements to police. PCRA Court
Order, 4/2/2015, at 2-3. Thus, the PCRA court determined “the factual
challenge of whether or not a statement existed [was] for the jury to
determine at trial [and] not the proper subject of a [s]uppression [m]otion.”
Id. We agree.
“Counsel may not be deemed ineffective for failing to pursue a
baseless or frivolous issue.” Commonwealth v. Moore, 446 A.2d 960, 962
(Pa. Super. 1982). “Absent some showing by appellant that an adequate
basis existed on which to obtain a pre-trial suppression of the evidence in
question, we will not find counsel ineffective.” Commonwealth v.
-6-
J-S58019-15
Thomas, 539 A.2d 829, 837 (Pa. Super. 1988). We previously determined
that trial counsel provides effective representation when he affirmatively
decides not to file a pretrial motion to suppress his client’s statements to
police where there were no alleged constitutional violations by police and the
defendant insisted that after police advised him of his rights, he made no
statement. See Commonwealth v. Durah-El, 496 A.2d 1222, 1225 (Pa.
Super. 1985). Here, Appellant does not complain that police coerced his
statement or somehow violated his constitutional rights. N.T., 3/2/0/2015,
at 27. Instead, Appellant testified that he never made the statements at
issue. Id. Counsel cannot be deemed ineffective for failing to file a motion
to suppress when there was no basis for suppression. Hence, Appellant’s
third contention lacks merit.
On the foregoing basis, and because our independent assessment of
the record yields no non-frivolous issues which merit our review, we grant
counsel leave to withdraw and we affirm the order denying PCRA relief.
Leave to withdraw granted. Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/4/2015
-7-