Com. v. Green, H.

J-S67033-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee

v.

HERBERT N. GREEN,

Appellant No. 512 MDA 2015

Appeal from the Order Entered February 20, 2015
in the Court of Common Pleas of Dauphin County
Criminal Division at No.: CP-22-CR-0000898-2010

BEFORE: BOWES, J., PANELLA, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.: FILED JANUARY 06, 2016

Appellant, Herbert N. Green, appeals pro se from the order denying his

first petition filed pursuant to the Post Conviction Relief Act (PCRA), 42

Pa.C.S.A. §§ 9541-9546, and granting counsel’s petition to withdraw. We

affirm.1

On August 25, 2010, a jury convicted Appellant of aggravated assault

and related firearms violations.2 The charges arose from an incident in

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*
Retired Senior Judge assigned to the Superior Court.
1
On June 17, 2015, Appellant filed an application to correct the certified
record, which was deferred for disposition to this panel. (See Per Curiam
Order, 9/22/15). We deny Appellant’s request for relief as moot.
2
18 Pa.C.S.A. §§ 2702(a)(1), 6105(a)(1), 2707.1, and 6106(a)(1),
respectively.
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which Appellant opened fire in a bar, and shot one of the bar’s bouncers in

the leg. On October 21, 2010, the court sentenced Appellant to an

aggregate term of not less than twelve-and-one-half nor more than twenty-

eight years’ incarceration. This Court affirmed Appellant’s judgment of

sentence on August 3, 2011, and the Pennsylvania Supreme Court denied

his petition for allowance of appeal on January 18, 2012. (See

Commonwealth v. Green, 32 A.3d 822 (Pa. Super. 2011) (unpublished

memorandum), appeal denied, 37 A.3d 1194 (Pa. 2012)).

On October 4, 2012, Appellant filed a timely pro se PCRA petition. The

court appointed counsel on October 16, 2012. On February 12, 2013,

appointed counsel filed a petition to withdraw pursuant to Turner/Finley,3

and, on May 9, 2013, the court filed a Rule 907 notice of its intention to

dismiss the petition and grant counsel’s motion to withdraw. See

Pa.R.Crim.P. 907(1). On June 20, 2013, Appellant filed a response to the

notice. The court dismissed Appellant’s PCRA petition and granted counsel’s

petition to withdraw on June 26, 2013. Appellant timely appealed pro se.

On May 20, 2014, this Court concluded that counsel’s petition to withdraw

was deficient, vacated the PCRA court’s order, and remanded for the court to

appoint new PCRA counsel. (See Commonwealth v. Green, No. 1268 MDA

2013, unpublished memorandum at *11 (Pa. Super. filed May 20, 2014)).
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3
Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth
v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).

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On July 3, 2014, the court appointed new counsel as directed. On July

16, 2014, counsel moved for the transcription of the trial and sentencing

testimony, and an extension of time to file an amended PCRA petition. On

July 24, 2014, the court granted counsel’s motion, and ordered the

preparation of the requested transcripts. On November 20, 2014, counsel

filed a motion to withdraw, and, on January 8, 2015, the court filed a Rule

907 notice. (Motion to Withdraw As PCRA Counsel, 11/20/14, at

unnumbered page 15). Appellant replied to the court’s notice on January

26, 2015, and the court dismissed the PCRA petition on February 20, 2015.

Appellant timely appealed.4

Appellant raises four issues for our review:

1. Whether PCRA counsel . . . was ineffective where she filed
a [Turner/Finley] letter that failed to meet all of the technical
prerequisites of [Turner/Finley] where she erroneously
determined that [Appellant’s] layered claims of ineffective
assistance of trial counsel[,] prosecutorial misconduct of [the
district attorney, and] abuse of discretion of [the] trial[]judge . .
. were without merit without first conducting a zealous review of
the record, but placed the onus on [Appellant] to clarify and
apply the law to his issues rather than using her own expertise
to do so[?]

2. Whether the PCRA court abused it’s [sic] discretion and or
erred as a matter of law where the court acted arbitrarily by
permiting [sic] counsel to withdraw from the case without first
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4
Appellant filed a timely Rule 1925(b) statement on April 13, 2015. See
Pa.R.A.P. 1925(b). The court filed a memorandum statement on May 13,
2015 in which it relied on its January 8, 2015 Rule 907 notice. See
Pa.R.A.P. 1925(a).

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meeting the proper technical prerequisites of [Turner/Finley]
by conducting a diligent review of [Appellant’s] case and
conduct[ing] it’s [sic] own independent review of the record
which would demonstrate that [Appellant’s] claims were
arguable in their merits[?]

3. Whether the PCRA court abused it’s [sic] discretion and or
erred as a matter of law where the court forclosed [sic] any
opportunity for [Appellant] to have a [sic] evidentiary hearing
concerning the issues raised by [Appellant],[]when the PCRA
court denied [Appellant’s] PCRA [petition], even after the
Superior [C]ourt[’]s Opinion . . . filed May 20, 2014[?]

4. Whether the [A]ppellant is eligible for relief under the
standard of newly discovered evidence, where in the
requirements of the mandatory minimum law, the [A]ppellant
was sentenced illegally, under the Constitution and according to
Com. v. Hopkins[, 117 A.3d 247 (Pa. 2015)5] also Alleyne v.
United States[, 133 S.Ct. 2151 (2013)?]

(Appellant’s Brief, at iii) (some capitalization omitted).

[A]n appellate court reviews the PCRA court’s findings of
fact to determine whether they are supported by the record, and
reviews its conclusions of law to determine whether they are free
from legal error. The scope of review is limited to the findings of
the PCRA court and the evidence of record, viewed in the light
most favorable to the prevailing party at the trial level.

Commonwealth v. Freeland, 106 A.3d 768, 775 (Pa. Super. 2014)

(citation omitted). “This Court grants great deference to the findings of the

PCRA court if the record contains any support for those findings.”

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5
Hopkins involved a direct appeal in which the Pennsylvania Supreme
Court applied the United States Supreme Court’s holding in Alleyne that,
“under the Sixth Amendment to the United States Constitution, a jury must
find beyond a reasonable doubt any facts [other than those related to prior
convictions] that increase a mandatory minimum sentence.” Hopkins,
supra at 249.

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Commonwealth v. Smith, 121 A.3d 1049, 1052 (Pa. Super. 2015)

(citation omitted).6

In his first issue, Appellant contends that PCRA counsel was ineffective

for “fil[ing] a Turner/Finley letter that failed to [meet] all of the

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6
We acknowledge that Appellant is proceeding pro se:

. . . although this Court is willing to construe liberally materials
filed by a pro se litigant, pro se status generally confers no
special benefit upon an appellant. Accordingly, a pro se litigant
must comply with the procedural rules set forth in the
Pennsylvania Rules of the Court. This Court may quash or
dismiss an appeal if an appellant fails to conform with the
requirements set forth in the Pennsylvania Rules of Appellate
Procedure. [See] Pa.R.A.P. 2101.

Freeland, supra at 776-77 (case citations omitted).

Here, Appellant’s brief fails to comply with the Pennsylvania Rules of
Appellate Procedure. First, we note, the argument section does not contain
headings that correspond to each of his questions involved, making his
rambling argument challenging to follow, at best. See Pa.R.A.P. 2119(a);
(see also Appellant’s Brief, at 1-23). Also, Appellant failed to include a copy
of the Rule 1925(b) statement filed in the PCRA court. See Pa.R.A.P.
2111(a)(11). More importantly, although he provides a standard and scope
of review, (see Appellant’s Brief, at ii), he appears to misapprehend the
requirement that we review the findings of the PCRA court in the light most
favorable to the Commonwealth as the prevailing party. Instead Appellant
provides exhaustive recitations of fact, and then concludes that PCRA
counsel and the court should have reached a result that was favorable to
him. (See, e.g., id. at 3-11). Appellant does not establish his right to PCRA
relief merely because he generally disagrees with the court’s findings of fact
or their result. See Freeland, supra at 777.

However, in spite of these violations, to the extent that we can
conduct meaningful appellate review of Appellant’s issues, we will not deem
them waived on this basis. See id. (addressing “the arguments that can
reasonably be discerned from this defective brief.”) (citation omitted).

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prerequisites . . . .” (Appellant’s Brief, at 1). Specifically, Appellant alleges

that counsel failed to “conduct[] a zealous review of the whole records and

testimony.” (Id.). This issue is waived.

It is well-settled that “claims of PCRA counsel ineffectiveness cannot

be raised for the first time after a notice of appeal has been taken from the

underlying PCRA matter.” Commonwealth v. Ford, 44 A.3d 1190, 1201

(Pa. Super. 2012). In fact, “a majority of the [Pennsylvania] Supreme Court

agrees that issues of PCRA counsel effectiveness must be raised in a serial

PCRA petition or in response to a notice of dismissal before the PCRA court.”

Id. at 1200.

Here, in his response to the court’s Rule 907 notice, Appellant failed to

allege the ineffectiveness of PCRA counsel. (See Response to Rule 907

Notice, 1/26/15, at unnumbered pages 1-6). Although he claimed the

ineffectiveness of PCRA counsel in his Rule 1925(b) statement, (see Rule

1925(b) Statement, 4/15/15, at 1-2), this is not enough to preserve the

issue for our review. See Ford, supra at 1200-01; see also Pa.R.A.P.

302(a) (“Issues not raised in the lower court are waived and cannot be

raised for the first time on appeal.”). Therefore, Appellant’s first issue is

waived.

In his second issue, Appellant maintains that the PCRA court erred in

granting counsel’s petition to withdraw because the court failed to “meet[]

the proper technical prerequisites of [Turner/Finley].” (Appellant’s Brief, at

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iii). Specifically, Appellant’s contention is that, “had the [c]ourt conducted

an independent review of the record thoroughly, [i]t could not conclude that

the Appellant[’]s claims were without merit.” (Id. at 17). Appellant’s issue

does not merit relief.

It has long been the law of this Commonwealth that:

The Turner/Finley decisions provide the manner for post-
conviction counsel to withdraw from representation. The
holdings of those cases mandate an independent review of the
record by competent counsel before a PCRA court or appellate
court can authorize an attorney’s withdrawal. The necessary
independent review requires counsel to file a “no-merit” letter
detailing the nature and extent of his review and list each issue
the petitioner wishes to have examined, explaining why those
issues are meritless. The PCRA court . . . then must conduct its
own independent evaluation of the record and agree with
counsel that the petition is without merit.

. . . [T]his Court [also] imposed additional requirements on
counsel that closely track the procedure for withdrawing on
direct appeal . . . . [C]ounsel is required to contemporaneously
serve upon his client his no-merit letter and application to
withdraw along with a statement that if the court granted
counsel’s withdrawal request, the client may proceed pro se or
with a privately retained attorney.

Commonwealth v. Rykard, 55 A.3d 1177, 1184 (Pa. Super. 2012), appeal

denied, 64 A.3d 631 (Pa. 2013) (citations and footnote omitted).

In this matter, PCRA counsel’s fifteen-page motion to withdraw

thoroughly addressed the numerous allegations raised in Appellant’s pro se

PCRA petition, detailed the extent of her review, and provided a copy of the

motion to withdraw and a letter to Appellant advising him that he was

“entitled to retain private counsel, proceed pro se, and either with counsel or

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without provide the [c]ourt with a [s]upplemental [b]rief to correspond with

the petition for relief [he had] filed.” (Motion to Withdraw as PCRA Counsel,

11/20/14, at Exhibit B; see also id. at unnumbered pages 3-15).

Thereafter, despite Appellant’s allegation to the contrary, the PCRA court

certified that it conducted its own independent review of Appellant’s PCRA

issues, and provided a substantive opinion addressing all nine of the claims

in its Rule 907 notice. (See Rule 907 Notice, 1/08/15, at 2-6). This

satisfied the technical requirements of Turner/Finley. See Rykard, supra

at 1184. Accordingly, Appellant’s claim that the court failed to meet the

Turner/Finley prerequisites of conducting its own independent review

before granting counsel’s petition to withdraw, lacks merit. See Smith,

supra at 1052; Freeland, supra at 775.

Moreover, Appellant utterly fails to establish that the PCRA court erred

in finding that his issues are frivolous. In his PCRA petition, Appellant

asserted nine claims of trial counsel ineffectiveness. (See Pro Se PCRA

Petition, 10/04/12, at 3; see also Appellant’s Brief, at 3-11). We observe

first that:

[T]o succeed on an ineffectiveness claim, a petitioner must
demonstrate that: the underlying claim is of arguable merit;
counsel had no reasonable basis for the act or omission in
question; and he suffered prejudice as a result, i.e., there is a
reasonable probability that, but for counsel’s error, the outcome
of the proceeding would have been different. A reasonable
probability is a probability sufficient to undermine confidence in
the outcome of the proceeding.

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Commonwealth v. Laird, 119 A.3d 972, 978 (Pa. 2015) (citing

Commonwealth v. Pierce, 527 A.2d 973, 975 (Pa. 1987)) (most citations

omitted). “Counsel’s assistance is deemed constitutionally effective

once this Court determines that the defendant has not established any one

of the prongs of the ineffectiveness test.” Commonwealth v. Rolan, 964

A.2d 398, 406 (Pa. Super. 2008) (citation omitted and emphasis in original).

Further, to obtain PCRA relief on a claim of ineffectiveness of counsel, the

petitioner must plead and prove, “[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.A. § 9543(a)(2)(ii).

In the present case, although he cites the ineffectiveness test,

Appellant does not expressly address the three Pierce prongs. (See

Appellant’s Brief, at 3-23; see also Pro Se PCRA Petition, 10/04/12, at 3,

7). Accordingly, Appellant failed to meet his burden of pleading and proving

trial counsel’s ineffectiveness. Laird, supra at 978; Rolan, supra at 406.

Moreover, our independent review of the record reveals that the court

properly granted PCRA counsel’s motion to withdraw and denied Appellant’s

PCRA petition where the underlying issues were either previously litigated or

lacked merit, and Appellant was not prejudiced by counsel’s actions. See

Smith, supra at 1052; Freeland, supra at 775. Appellant’s second issue

does not merit relief.

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In Appellant’s third issue, he alleges that the PCRA court erred in

denying him a hearing on his petition. (See Appellant’s Brief, at iii, vi, 16,

21, 22). This claim is waived and would not merit relief.

In three discrete sentences scattered throughout his twenty-three

page argument, Appellant states, without any further discussion or citation

to pertinent authority, that he should have been granted the opportunity to

be heard at a PCRA hearing. (See id. at 16, 21, 22). However, “[w]here an

appellate brief fails to provide any discussion of a claim with citation to

relevant authority or fails to develop the issue in any other meaningful

fashion capable of review, that claim is waived.” Commonwealth v.

Johnson, 985 A.2d 915, 924 (Pa. 2009), cert. denied, 562 U.S. 906 (2010)

(citation omitted). Therefore, Appellant’s issue is waived. See id.

Moreover, it would not merit relief.

“[I]t is well settled that the right to an evidentiary hearing on a PCRA

petition is not absolute, and the PCRA court may decline to hold a hearing if

the petitioner’s claims are patently frivolous with no support in either the

record or other evidence.” Commonwealth v. Garcia, 23 A.3d 1059, 1066

n.9 (Pa. Super. 2011), appeal denied, 38 A.3d 823 (Pa. 2012) (citation

omitted).

Instantly, we have already concluded that the PCRA court properly

granted counsel’s petition to withdraw and denied Appellant’s PCRA petition

on the basis that his claims were frivolous. Therefore, even if not waived,

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this issue would lack merit. See id.; see also Smith, supra at 1052;

Freeland, supra at 775.

In his fourth issue, Appellant claims that his judgment of sentence was

illegal because it contained a mandatory minimum term of incarceration,

which was declared unconstitutional by Alleyne, supra. (See Appellant’s

Brief, at iii, 12). However, Alleyne does not apply retroactively to cases on

collateral review. See Commonwealth v. Riggle, 119 A.3d 1058, 1067

(Pa. Super. 2015). Therefore, Appellant’s fourth issue does not merit relief,

and we affirm the PCRA court’s order denying his petition.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 1/6/2016

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