J-S01034-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
KWAME MASSINA
Appellant No. 2724 EDA 2014
Appeal from the PCRA Order August 13, 2014
In the Court of Common Pleas of Lehigh County
Criminal Division at No(s): CP-39-CR-0001680-2008
BEFORE: GANTMAN, P.J., MUNDY, J., and MUSMANNO, J.
MEMORANDUM BY GANTMAN, P.J.: FILED FEBRUARY 24, 2016
Appellant, Kwame Massina, appeals from the order entered in the
Lehigh County Court of Common Pleas, which denied his petition brought
pursuant to the Post Conviction Relief Act (“PCRA”).1 We affirm.
In its opinion, the trial court fully and correctly sets forth the relevant
facts and procedural history of this case.2 Therefore, we have no reason to
restate them.
Appellant raises the following issues for our review:
____________________________________________
1
42 Pa.C.S.A. §§ 9541-9546.
2
The court denied Appellant’s PCRA petition by order dated August 12,
2014, and docketed August 13, 2014. The record makes clear that
Appellant gave his notice of appeal to prison authorities for mailing on
September 12, 2014. Thus, pursuant to the prisoner mailbox rule, Appellant
timely filed his notice of appeal.
J-S01034-16
WHETHER THE TRIAL COURT ERRED IN PERMITTING
COUNSEL TO WITHDRAW AND DENYING [APPELLANT’S]
PCRA PETITION, WHERE [PCRA] COUNSEL’S
TURNER/FINLEY3 LETTER WAS LEGALLY INSUFFICIENT?
WHETHER PCRA COUNSEL’S “NO-MERIT” LETTER FAILED
TO DETAIL THE NATURE AND EXTENT OF [PCRA]
COUNSEL’S REVIEW OF THE MERITS OF EACH OF THOSE
CLAIMS?
WHETHER PCRA COUNSEL RENDERED INEFFECTIVE
ASSISTANCE OF COUNSEL BECAUSE HE FAILED TO
INVESTIGATE, RAISE AND ADDRESS ALL OF THE ISSUES
PRESENTED IN [APPELLANT’S] PRO SE PCRA PETITION?
WHETHER PCRA COUNSEL WAS INEFFECTIVE IN FAILING
TO DO A PROPER INDEPENDENT REVIEW OF THE
RECORD?
WHETHER THE TRIAL COURT ERRED IN PERMITTING
[PCRA] COUNSEL TO WITHDRAW AND DENYING
[APPELLANT’S] PCRA PETITION, WHEREIN PCRA COUNSEL
FAILED TO CONTEMPORANEOUSLY SUPPLY [APPELLANT]
WITH A COPY OF [PCRA] COUNSEL’S MOTION TO
WITHDRAW AND WITH BOTH A COPY OF THE “NO-MERIT”
LETTER AND A STATEMENT ADVISING THAT IN THE EVENT
THE COURT GRANTS THE MOTION TO WITHDRAW, HE HAS
THE RIGHT TO PROCEED PRO SE OR HIRE COUNSEL?
WHETHER THE TRIAL COURT ERRED IN DENYING
[APPELLANT’S] PRO SE NUNC PRO TUNC OBJECTION TO
PCRA COUNSEL’S TURNER/FINLEY LETTER?
(Appellant’s Brief at 4-5).4
Our standard of review of the denial of a PCRA petition is limited to
____________________________________________
3
Commonwealth v. Turner, 518 Pa. 491, 544 A.2d 927 (1988);
Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc).
4
For purposes of disposition, we have reordered Appellant’s issues.
-2-
J-S01034-16
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, 108 (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, 515 (Pa.Super. 2007),
appeal 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). The PCRA court findings will
not be disturbed unless the certified record provides no support for the
findings. Commonwealth v. Taylor, 933 A.2d 1035, 1040 (Pa.Super.
2007), appeal denied, 597 Pa. 715, 951 A.2d 1163 (2008). There is no right
to a PCRA hearing; a hearing is unnecessary where the PCRA court can
determine from the record that there are no genuine issues of material fact.
Commonwealth v. Jones, 942 A.2d 903, 906 (Pa.Super. 2008), appeal
denied, 598 Pa. 764, 956 A.2d 433 (2008).
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
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J-S01034-16
probability that the outcome of the proceedings would have been different.
Commonwealth v. Kimball, 555 Pa. 299, 312, 724 A.2d 326, 333 (1999).
The failure to satisfy any prong of the test for ineffectiveness will cause the
claim to fail. Williams, supra.
After a thorough review of the record, the briefs of the parties, the
applicable law, and the well-reasoned opinion of the Honorable Douglas G.
Reichley, we conclude Appellant’s issues merit no relief. The trial court
opinion comprehensively discusses and properly disposes of the questions
presented. (See Trial Court Opinion, filed January 28, 2015, at 9-14)
(finding: (issues 1-4) PCRA counsel filed lengthy and detailed “no merit”
letter with his petition to withdraw, in which he thoroughly reviewed all
forty-two issues raised in Appellant’s pro se supplemental PCRA petition;
PCRA counsel properly and thoroughly addressed each of Appellant’s issues
throughout “no merit” letter; where Appellant’s issues were not patently
meritless, PCRA counsel documented what steps he took to review merits of
issue; where issues were patently legally meritless, PCRA counsel properly
noted this in “no merit” letter; except for issues that were patently legally
meritless, PCRA counsel provided detailed explanation of nature and extent
of his review of issues and why he determined issues were meritless; PCRA
counsel noted he spoke with trial counsel, reviewed trial transcripts, and
reviewed record prior to preparation of “no merit” letter; court reviewed
PCRA counsel’s “no merit” letter and concluded it addressed each issue in
-4-
J-S01034-16
Appellant’s pro se supplemental PCRA petition; PCRA counsel conducted
complete review of record and took every necessary step to discern whether
Appellant had any ground for PCRA relief; “no merit” letter complied with
dictates of Turner/Finley and court properly granted PCRA counsel’s
petition to withdraw; (issue 5) in “no merit” letter mailed to Appellant,
PCRA counsel informed Appellant that he could either represent himself or
hire new counsel if court permitted PCRA counsel to withdrawal; at July 15,
2014 hearing on PCRA counsel’s petition to withdraw, court further informed
Appellant of status of his case and detailed Appellant’s options after court
granted PCRA counsel’s petition to withdraw; Appellant was aware of petition
to withdraw and his options moving forward prior to 7/15/14 hearing; thus,
court properly granted PCRA counsel’s petition to withdraw (issue 6) court
denied Appellant’s pro se nunc pro tunc objection because it was
procedurally improper, untimely and meritless; at July 15, 2014 hearing,
court granted PCRA counsel’s petition to withdraw and issued notice of its
intent to dismiss Appellant’s PCRA petition without hearing pursuant to
Pa.R.Crim.P. 907 (“Rule 907 notice”); on August 6, 2014, Appellant filed
timely response to court’s Rule 907 notice; on August 12, 2014, after review
of Appellant’s response to court’s Rule 907 notice and Appellant’s PCRA
petition, court determined dismissal without hearing was appropriate
because no arguably meritorious grounds for relief existed; on August 28,
2014, Appellant filed pro se nunc pro tunc objection to PCRA counsel’s “no
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merit” letter after court had already dismissed Appellant’s PCRA petition;
under these circumstances, court properly denied Appellant’s August 28,
2014 objection as untimely because Appellant’s August 6, 2014 response to
Rule 907 notice demonstrated Appellant’s understanding of status of his
case). Accordingly, we affirm on the basis of the trial court’s opinion.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/24/2016
-6-
Circulated 01/26/2016 02:59 PM
IN THE COURT OF COMMON PLEAS OF LEHIGH COUNTYPENNSYL VANIA,
CRIMINAL DIVISION
COMMONWEALTH OF PENNSYLVANIA. )
)
vs. ) No. 1680 of 2008
) 2724 EDA 2014
KWAME MASSINA, )
Appellant )
ORDER
AND NOW, this) 77JLY of Jan~ary, 2015,
IT APPEARING that the Appellant has filed a Notice of Appeal in the above-captioned
matter;
IT FURTHER APPEARING that the accompanying Memorandum Opinion satisfies
the requirements of Pa.R.A.P. 1925 (a);
IT IS HEREBY ORDERED that the Clerk of Courts, Criminal, transmit the record of
the above-captioned matter to the Superior Court forthwith.
By the Court:
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IN THE COURT OF COMMON PLEAS OF LEHIGH COUNTYPENNSYLVANIA,
CRIMINAL DIVISION
COMMONWEALTH OF PENNSYLVANIA )
)
vs. ) No. 1680 of 2008
) 2752 EDA 2012
KW AME MASSINA, )
Appellant )
1925(a) Opinion
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January 27, 2015 -~ : ... ,.
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Douglas G. Re1e_!,!~y, J. ·:_,,
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Kwame Massina, Appellant, filed a Notice of Appeal on September 23, 2014 follo1hf
this Court's dismissal of his Post-Conviction Relief Act (PCRA) petition pursuant to 42
Pa.C.S.A § 9541 et seq. on September 8, 2014. For the reasons set forth herein, Appellant's
PCRA petition was meritless and the instant appeal should be dismissed.
Factual History
On January 31, 2008 at approximately 12:30 a.m., Officer Jeffrey Rush of the Allentown
Police Department was on routine patrol when he witnessed what he believed to be a large scale
fight outside Trinkle's Bar in the 500 block of Turner Street in Allentown, Lehigh County,
Pennsylvania. Officer Rush saw roughly two dozen people leaving the bar, some of whom were
holding pool cues or alcoholic drinks. The bar patrons pointed out a medium-build man running
from the scene dressed in dark clothing and a hoodie who was identified as possessing a gun.
Officer Rush lost sight of the man as he ran east on Turner Street and then north on Law Street.
When Officer Rush went back to Trinkle's Bar, he found a man on his back on the floor
bleeding profusely from his head. The man, later identified as William "Big Will" Spearman,
2
was unresponsive and had a large neck wound. The officer noticed the faint smell of gunpowder
in the bar. Spearman later died.
Officer Rush saw a woman, Margarita Morales, was giving CPR to the victim. Ms.
Morales later related to the police she had been in the bar for about 7 hours when she noticed the
victim and a man identified as the Appellant coming out of the bathroom in the bar and having a
physical struggle. During this struggle, Ms. Morales saw the Appellant with a gun and heard two
gunshots. After the gunfire, Morales saw Spearman slump to the floor and people running from
the bar.
Ms. Iris Rodriguez was also at the bar that night. While in the ladies bathroom, Rodriguez
heard a loud argument. When she came out of the bathroom, Rodriguez began to speak with
Morales when she saw the Appellant leave from the mens' bathroom, then go back in, followed
by a struggle between the Appellant and Spearman. Ms. Rodriguez saw Appellant with a gun and
then heard shots ring out.
The bartender Edward Reid also heard a loud bang and saw patrons fleeing from one end
of the bar. Mr. Reid then saw the victim on the floor bleeding and called 911.
At the scene of the shooting, the police recovered a New York Yankees baseball hat from the
pool table close to the victim. Surveillance videotape from within the bar showed the suspect
wearing a Yankees hat. DNA evidence recovered from inside the Yankees hat was compared the
Appellant's known DNA profile. While the DNA analysis could not determine a match with the
Appellant, the analysis did determine that 1 in 2,700 unrelated Caucasians, 1 in 3,900 unrelated
African-Americans, and 1 in 3,200 unrelated Hispanics would be expected to be included in the
DNA mixture found on the Yankees hat headband.
3
An autopsy revealed the victim died from multiple gunshot wounds. The manner of death
was identified as homicide.
Further analysis of the surveillance videotape from the bar showed the struggle between
the victim and the shooter. The victim was seen on the floor with the shooter standing over him
holding a gun while wearing a Yankees hat. However, the shooter's face was partially obscured
by a hoodie.
Upon reviewing a photographic array, Mr. Reid identified the Appellant as the shooter,
but admitted he could only be 60% sure of his identification. Ms. Rodriguez and Ms. Morales
viewed the same photo array and both identified the Appellant as the shooter.
At trial, the Commonwealth also presented testimony from Charles Sumpter, a cellmate of the
Appellant. Sumpter testified the Appellant confessed to shooting Spearman and that the
Appellant revealed various details of the homicide which had not been disclosed in press
accounts about the shooting, including where the Appellant placed the gun after the shooting.
The gun though was never recovered by the police.
Procedural History
Appellant was convicted on September 4, 2009 following a jury trial on one count of
Criminal Homicide graded by the jury as Murder in the First Degree. The Appellant was
sentenced by the Honorable Lawrence J. Brenner on October 151 2009 to life imprisonment
without parole.
On October 23, 2009, the Appellant filed post-sentence motions including a Motion for
Judgment of Acquittal/Motion in Arrest of Judgment and for a New Trial; a Motion challenging
the Sufficiency of the Evidence; and a Motion Challenging the Verdict as against the Weight of
the Evidence. Those motions were denied on February 1, 2010. A Notice of Appeal was filed on
4
or about February 24, 2010. On appeal, the Appellant challenged the decision of the Suppression
Court in denying the omnibus pretrial motion to suppress identification of the Appellant from a
photo array, the trial court's decision to allow a videotape into evidence before the jury, the trial
court's decision to deny the Appellant's motion in limine to exclude DNA evidence, and the trial
court's denial of the Appellant's post-trial motions challenging the weight and sufficiency of the
evidence. The Superior Court affirmed the conviction and sentence on October 28, 2010. The
Pennsylvania Supreme Court denied a petition for allowance of appeal on March 16, 2011.
The Appellant was originally represented by Attorney Dennis Charles of the Lehigh
County Public Defender's Office. However, on January 26, 2009, that office was granted
permission to withdraw as counsel for the Appellant, and Kimberly Mak.oul, Esq. was appointed
by the Honorable Kelly L. Banach to represent the Appellant. Upon the filing of the PCRA
petition on March 16, 2012, the undersigned appointed Robert Long, Esq. as PCRA counsel on
March 19, 2012. Subsequent to his review of the facts of this case and the applicable caselaw,
Attorney Long filed a Motion to Withdraw as Counsel following his submission of a "Finley"
letter indicating there were not any cognizable grounds for relief under the PCRA statute.
On June 5, 2012, following a hearing attended by the Appellant and his court-appointed
counsel, the Court granted Attorney Long's petition to withdraw as counsel and indicated the
Court's intention to dismiss the PCRA petition without a hearing under Pa.R.Crim.P. 907. The
Court granted the Appellant 90 days to respond to the notice from the Court of the intention to
dismiss the PCRA petition or to allege any other grounds of ineffectiveness of counsel not
previously specified. The Appellant filed a responsive pleading on August 20, 2012.
On August 22, 2012, the Court denied and dismissed the PCRA petition. The Appellant
mailed a Notice of Appeal from this order on September 21, 2012. The Appellant was directed to
5
file a Concise Statement of Matters Complained of on Appeal. After granting the Appellant
additional time to file his 1925(b) Statement until November 9, 2012, the Appellant filed his
Concise Statement on October 31, 2012. Appellant's Concise Statement alleged thirty-eight (38)
grounds for relief.
The Court prepared its 1925(a) Opinion addressing each ground for relief. In addition to
authoring that opinion, the Court separately advised the Superior Court that it determined that
counsel's Turner/Finley letter was legally insufficient and indicated that a remand would be
appropriate.
On August 15, 2013, the Superior Court remanded the case pursuant to this Court's letter
request. Upon receiving the Superior Court's opinion, this Court ordered that David D. Ritter,
Esq. be appointed to represent Appellant in his PCRA petition. The Court afforded Attorney
Ritter sixty days to file either an Amended PCRA petition or an appropriate Turner/Finley letter.
Appellant filed a pro se thirty-page document entitled "Amended/Supplement to
P.C.R.A. Petition" on September 4, 2013. Because counsel had been appointed, the Court
forwarded that petition to Attorney Ritter for review without acting on it.
Attorney Ritter was a conflicts attorney for Lehigh County at the time of his appointment
to this case. However, he resigned from that position effective November 15, 2013. Attorney
Ritter notified Appellant of that determination by letter dated October 18, 2013. In the same
letter, Attorney Ritter indicated that he would be requesting a ninety-day extension to file an
Amended PCRA Petition so that his replacement in the conflict counsel position could have
adequate time to review the case.
Appellant wrote to the Court to communicate his concern about Attorney Ritter's
retirement from the conflicts position and the lack of communication Attorney Ritter had with
6
Appellant regarding the instant case. The Court wrote a letter back to Appellant informing him
that new counsel would be appointed and the Court would properly allow adequate time for that
attorney to review the matter and file whatever was appropriate.
Attorney Sean T. Poll was hired as conflicts counsel and was advised that he would be
assigned to Appellant's case in late-2013 or early 2014. Attorney Poll contacted the Court in
early-January 2014 to discuss the procedural status of the case and the time deadlines applicable
thereto. On January 16, 2014, the Court again responded to a correspondence from Appellant
regarding the status of his counsel.
On January 27, 2014, Attorney Poll was formally appointed to Appellant's case. He was
given ninety (90) days to file an Amended PCRA or a Turner/Finley letter at his discretion.
On April 21, 2014, Attorney Poll filed a petition requesting an extension of time for an
additional thirty days, citing the fact that he was still waiting on trial counsel's files and had not
been able to review all of the relevant materials. The Court granted the extension on April 22,
2014 and afforded counsel an additional thirty days.
On May 22, 2014, Attorney Poll filed a formal Motion to Withdraw. Unlike the prior
Turner/Finley letter filed in 2012, Attorney Poll's motion thoroughly discussed each of
Appellant's forty-two (42) issues on appeal and explained that all of them were either meritless
or not cognizable under the PCRA. The Court reviewed that motion and found that it was
appropriate. Accordingly, the Court placed Appellant on notice of its intent to dismiss his PCRA
pursuant to Pa.R.Crim.P. 907 by order dated July 15, 2014. On July 15, 2014, the Court orally
granted Attorney Poll's motion to withdraw as counsel. Appellant filed a response on August 6,
2014.
7
On August 12, 2014, after careful review of Attorney Poll's letter and the issues
Appellant raised, the Court denied and dismissed Appellant's PCRA. On August 28, 2014,
Appellant filed a pro se "Nunc Pro Tune Objection to Finley/Turner Letter," which the Court
dismissed in an order with a footnote explaining that the PCRA was dismissed based on its lack
of merit.
On September 23, 2014, Appellant filed a Notice of Appeal.' On September 26, 2014, the
Court ordered Appellant to file a Concise Statement of Matters Complained of on Appeal.
On October 1, 2014, Appellant submitted a pro se letter regarding the dismissal of his
PCRA to the Lehigh County Prothonotary. On the same day, the Court entered an order releasing
Attorney Poll from representation of Appellant. 2
Also on October 1, 2014, out of an abundance of caution, the Court appointed new
counsel to Appellant for appellate purposes, Attorney Matthew Rapa. Appellant filed a pro se
Concise Statement on October 9, 2014, but because counsel had already been appointed, the
Court forwarded that filing to Attorney Rapa for his consideration and review. On October 23,
2014, Attorney Rapa requested additional time to file a Concise Statement, which the Court
granted on October 27, 2014.
On December 22, 2014, Attorney Rapa requested additional time to file his Concise
Statement, which the Court granted the same day.
On January 21, 2015, Attorney Rapa filed the Concise Statement for Appellant.
This Opinion follows.
1
Pursuant to the prisoner mailbox rule, the Court treated the appeal as timely because it was dated September 12,
2014.
2
While the Court had previously granted Attorney Poll's motion to withdraw, through an oversight, a written order
was never generated. The October 1, 2014 order created a record entry consistent with the oral grant of Attorney
Poll's motion on July 15, 2014.
8
Discussion
Appellant raises six issues on appeal, all with respect to the Court allowing Attorney Poll
to withdraw as counsel. In summary form, these issues are as follows:
1. PCRA counsel's Turner/Finley letter was legally insufficient;
2. PCRA counsel failed to address all of Appellant's issues;
3. PCRA counsel's letter failed to detail the nature and extent of counsel's review of
each of the issues being raised;
4. The Court erred in permitting PCRA counsel to withdraw based on counsel's
alleged failure to contemporaneously supply Appellant with a copy of the motion
to withdraw and a copy of the no-merit letter;
5. The Court erred in denying Appellant's prose Nunc Pro Tune objection to the
Turner/Finley letter;
6. PCRA counsel was ineffective for failing to conduct a proper independent review
of the record.
Each of these issues is discussed herein. Preliminarily, in order to be eligible for relief
under the PCRA, a defendant must prove by a preponderance of the evidence that his conviction
or sentence resulted from a violation of the Pennsylvania Constitution or the federal Constitution,
or ineffective assistance of counsel which so undermined the truth-determining process that no
reliable adjudication of guilt or innocence could have taken place. Commonwealth v. Daniels, 17
A.3d 297 (Pa. Super. 2011). There is not any requirement that the PCRA court hold a hearing on
every issue a petitioner raises. Commonwealth v. Clark, 599 Pa. 204, 961 A.2d 80 (2008). After
the PCRA court dismisses a PCRA without a hearing, a defendant must show that he raised a
genuine issue of fact which, if resolved in his favor, would have entitled him to relief, or that the
9
court otherwise abused its discretion in denying a hearing. Commonwealth v. Paddy, 15 AJd
431 (Pa. Super. 2011).
Issues 1, 2, 3, and 6: Legal Sufficiency of Turner/Finley Letter and PCRA Counsel's
Investigation
This case is somewhat unique because prior counsel had filed a Turner/Finley letter that
the Court, upon further review while preparing an opinion for the appeal, determined was legally
insufficient. Once new counsel was appointed and had sufficient time to review Appellant's case,
counsel filed his own Turner/Finley letter, which was much more detailed than the initial one.
Accordingly, the first issue on appeal is the legal sufficiency of that second letter.
The requirements of a Turner/Finley letter and dismissal granting appointed counsel's
withdrawal request were specifically and succinctly articulated in Commonwealth v. Friend as
follows:
1) As part of an application to withdraw as counsel, PCRA counsel must attach to
the application a "no-merit" letter,
2) PCRA counsel must, in the "no-merit" letter, list each claim the petitioner
wishes to have reviewed, and detail the nature and extent of counsel's review of
the merits of each of those claims,
3) PCRA counsel must set forth in the "no-merit" letter an explanation of why the
petitioner's issues are meritless,
4) PCRA counsel must contemporaneously forward to the petitioner a copy of the
application to withdraw, which must include (i) a copy of both the "no-merit"
letter, and (ii) a statement advising the PCRA petitioner that, in the event the trial
court grants the application of counsel to withdraw, the petitioner has the right to
proceed prose, or with the assistance of privately retained counsel;
5) the court must conduct its own independent review of the record in the light of
the PCRA petition and the issues set forth therein, as well as of the contents of the
petition of PCRA counsel to withdraw; and
6) the court must agree with counsel that the petition is meritless.
Commonwealth v. Friend, 896 A.2d 607, 615 (Pa. Super. 2006).
Addressing each of these requirements in turn, first, the record clearly reflects that a
lengthy and detailed "no-merit" letter was attached to counsel's motion to withdraw.
10
Regarding the substantive merits of the letter, prior to granting counsel's motion to
withdraw, the Court reviewed the contents of the letter in thorough detail. The letter is of record
for the Superior Court to review. In counsel's letter, counsel thoroughly reviews each of the
I
forty-two (42) issues Appellant sought to raise in his PCRA.
By way of example, in the first issue, Appellant sought to argue that both the
Commonwealth and defense counsel failed to test certain physical evidence found at the crime
scene. However, in Attorney Poll's letter, he accurately indicated that the Commonwealth need
not test everything found at a crime scene; its only obligation is to acquire sufficient evidence to
sustain its burden of proof. As for defense counsel not requesting that it be tested, Attorney Poll
spoke to defense counsel who indicated she did not have a specific door knob at issue tested
because by the time she was assigned to his case, too much time had passed to viably test the
doorknob.
Another example is in issue number 14 where Appellant sought to argue that Attorney
Makoul, his trial counsel, was ineffective for failing to present issues well. The letter indicates
that Attorney Poll reviewed the trial transcript and concluded that the issue was meritless
because Attorney Makoul presented an effective case.
Consistently throughout the Turner/Finley letter, counsel properly and thoroughly
addressed each issue. In those instances where issues were not patently meritless, counsel
indicated what steps he took to review the merits of the issue. In other instances, issues were
facially or legally meritless and it was sufficient for counsel to simply note that as the case. For
example, the second issue Appellant sought to pursue was, "Was it Governmental interference to
issue an illegal sentence in violation of the Tarver decision?" Appellant was convicted of first
11
degree murder, and as Attorney Poll properly noted, the penalty for first degree murder is life
imprisonment, rendering this claim meritless.
In sum, in his Turner/Finley letter, Attorney Poll thoroughly and properly reviewed every
issue Appellant sought to raise and explained very clearly and concisely what steps he undertook
to review that issue and why it was meritless. Accordingly, the first issue on appeal alleging legal
insufficiency of the letter is meritless.
Next, as discussed in detail both above and in the body of the Turner/Finley letter,
counsel thoroughly investigated and addressed each of Appellant's issues in preparing the letter.
Counsel detailed the nature and extent of his review of every single issue except in those
circumstances where the issues were facially legally meritless. This included conducting
conversations with Appellant's trial counsel, reviewing the transcript of the trial, and reviewing
the record wherever appropriate.
All of these actions.render Appellant's first, second, third, and sixth issues on appeal
meritless. The Court reviewed the Turner/Finley letter and concluded that it thoroughly
addressed every issue Appellant sought to raise in his PCRA. The letter further demonstrated that
counsel took every necessary step to review each of these issues so as to properly conduct a
complete review of the record in order to discern whether there was any ground for PCRA relief.
As a result, the Turner/Finley letter was legally sufficient and counsel was properly permitted to
withdraw as a consequence.
Issue 4: PCRA Counsel's Compliance with Procedural Requirements
Appellant argues that counsel failed to provide him the proper notice of his
options pursuant to the requirements of filing a withdrawal motion with a Turner/Finley
letter. "PCRA counsel must contemporaneously forward to the petitioner a copy of the
12
application to withdraw, which must include (i) a copy of both the "no-merit" letter, and
(ii) a statement advising the PCRA petitioner that, in the event the trial court grants the
application of counsel to withdraw, the petitioner has the right to proceed pro se, or with
the assistance of privately retained counsel." Friend, 896 A.2d at 615.
In this case, at the end of counsel's letter, he explains, "I have enclosed a copy of
the Petition to Withdraw as Counsel with this attached letter, which I will be filing with
the court. If the court permits me to withdraw, you will have the option of either
representing yourself or hiring counsel of your own choosing." (Turner/Finley letter, at
[9].)
Additionally, on July 15, 2014, the Court conducted a hearing in consideration of
counsel's motion to withdraw during which Appellant was provided notice on the record
of the status of his PCRA and his options following the Court's decision to grant the
withdrawal petition.
Accordingly, this issue is meritless and no relief is due.
Issue 5: Dismissal of Appellant's Pro Se Objection to Turner/Finley Letter
The final issue on appeal involves the Court's dismissal of a pro se filing
objecting to Attorney Poll's Turner/Finley letter. The filing was dismissed because it was
procedurally improper, untimely, and meritless. A brief review of the relevant procedural
history sheds some light on this issue.
On May 22, 2014, PCRA counsel filed his withdrawal motion along with the
Turner/Finley letter. The Court scheduled a hearing for July 15, 2014 because of the
procedural issues that had previously impacted this case so that Appellant could be
13
advised on the record of what was transpiring and be given a full and fair opportunity to
object.
At the July 15, 2014 hearing, it was explained that the motion to withdraw would
be granted and that Appellant would be afforded notice of the Court's intent to dismiss
his PCRA without a hearing pursuant to Pa.R.Crim.P. 907. Appellant was given
appropriate time to respond. In fact, Appellant did file a type-written response on August
6, 2014 to the Court's notice.
The Court reviewed that response and the issues Appellant sought to raise and
determined that there was no arguably meritorious ground for relief necessitating a
hearing. Accordingly, the PCRA was denied and dismissed on August 12, 2014.
On August 28, 2014, Appellant filed a prose document entitled "Nunc Pro Tune
Objection to Finley/Turner Letter. By that time, the PCRA had already been dismissed.
Additionally, Appellant demonstrated his cognizance of the time frame because he timely
filed a response to the Court's Notice oflntent to Dismiss.
In contrast to the August 6, 2014 response, the August 28, 2014 filing was
untimely. It also failed to raise anything meritorious. Accordingly, it was properly
dismissed.
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Conclusion
For the foregoing reasons, the instant appeal is meritless. PCRA counsel was given ample
time to prepare and to conduct an independent investigation of the issues. The Turner/Finley
letter thoroughly and properly addresses all of the issues Appellant sought to raise and explains
why they are not meritorious or are improper for PCRA review. Additionally, the letter properly
advised Appellant of his rights as required by governing case law. Finally, Appellant's pro se
filing on August 28, 2014 was properly dismissed in light of the procedural posture of the case.
Consequently, Appellant's PCRA was properly dismissed and the within appeal is meritless. The
Court respectfully recommends that its dismissal of Appellant's PCRA be affirmed.
By the Court:
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