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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
CORNELL RICHARDS,
Appellant No. 783 EDA 2015
Appeal from the PCRA Order February 18, 2015
In the Court of Common Pleas of Delaware County
Criminal Division at No(s): CP-23-CR-0003093-2012
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
CORNELL RICHARDS,
Appellant No. 784 EDA 2015
Appeal from the PCRA Order February 18, 2015
In the Court of Common Pleas of Delaware County
Criminal Division at No(s): CP-23-CR-0005615-2012
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
CORNELL RICHARDS,
Appellant No. 785 EDA 2015
Appeal from the PCRA Order February 18, 2015
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In the Court of Common Pleas of Delaware County
Criminal Division at No(s): CP-23-CR-0005616-2015
BEFORE: SHOGAN, LAZARUS, and STABILE, JJ.
MEMORANDUM BY SHOGAN, J.: FILED FEBRUARY 25, 2016
Appellant, Cornell Richards, appeals from the order denying his first
petition for relief filed pursuant to the Post Conviction Relief Act (“PCRA”),
42 Pa.C.S. §§ 9541-9546. In addition, counsel has filed a petition seeking
to withdraw. We grant counsel’s motion to withdraw and affirm the order of
the PCRA court.
We previously summarized the facts of the crimes and initial
procedural history as follows:
The underlying three criminal cases involved the same
complainant, Appellant’s former girlfriend. In CR-3093-2012,
the Commonwealth charged Appellant with, inter alia, simple
assault and criminal mischief after police officers responded to a
domestic dispute on January 24, 2012. In CR-5616-2012,
Appellant was charged with, inter alia, simple assault, theft by
unlawful taking, and robbery after an officer observed a
domestic dispute on April 28, 2012.5 In CR-5615-2012,
Appellant was charged with, inter alia, intimidation of a witness
or victim after the complainant, on July 2, 2012, told officers
that Appellant called and sent her text messages asking her to
drop the charges against him.
5
By the time of the second incident, the complainant
discovered that she was pregnant with Appellant’s
child and had also contracted a sexually transmitted
disease from him.
Appellant obtained private counsel, Kevin Wray, Esq. (“trial
counsel”) and proceeded to a consolidated nonjury trial on
November 20, 2012. The following day, the trial court found him
guilty in CR-3093-2012 of simple assault, in CR-5616-2012 of
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simple assault, theft by unlawful taking, and robbery, and in CR-
5615-2012 of intimidation of a witness or victim, which the court
graded as a second-degree misdemeanor.6 On January 30,
2013, the court sentenced Appellant to six to twenty-four
months’ imprisonment for robbery,7 a consecutive six to twenty-
four months’ imprisonment for intimidation of a witness or
victim, and a consecutive two years’ probation for simple
assault. The aggregate sentence for the three cases was one to
four years’ imprisonment followed by two years’ probation.
6
The trial court found Appellant not guilty of the
charge of criminal mischief in CR-3093-2012. The
remaining charges against Appellant in the three
cases were dismissed prior to trial.
7
The trial court merged the simple assault and theft
into the count of robbery in CR-5616-2012.
* * *
Counsel from the Office of the Public Defender entered an
appearance on February 28th and, that same day, filed . . .
notices of appeal in each of the three underlying cases.
Commonwealth v. Richards, 733, 735, 737 EDA 2013, 93 A.3d 505 (Pa.
Super. filed December 10, 2013) (unpublished memorandum at 2–4) (some
footnotes omitted).
On appeal to this Court, direct appeal counsel sought to withdraw after
identifying a challenge to the sufficiency of the evidence underlying
Appellant’s intimidation-of-a-witness-or-victim conviction as having arguable
merit. We determined that the identified issue lacked merit, and after
conducting an independent review of the record, we concluded that there
were “no non-frivolous questions for appeal.” Richards, (unpublished
memorandum at 11). Thus, we affirmed the judgment of sentence and
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granted counsel’s petition to withdraw on December 10, 2013. Id.
Appellant did not file a petition for allowance of appeal to the Pennsylvania
Supreme Court.
On November 25, 2014, by private counsel, Appellant filed a timely
PCRA petition. Following receipt of an answer by the Commonwealth, the
PCRA court held an evidentiary hearing on February 11, 2015. The PCRA
court denied the petition on February 18, 2015. By letter dated March 1,
2015, Appellant requested the appointment of appellate counsel, which the
PCRA court granted on March 10, 2015. On March 17, 2015, Appellant filed
the instant notice of appeal.
The PCRA court ordered the filing of a statement pursuant to Pa.R.A.P.
1925. Following the grant of Appellant’s motion for extension of time to file
the concise statement, and in response to the Rule 1925 order, Appellant’s
counsel filed a notice of intent to withdraw,1 and thereafter filed a petition to
withdraw as counsel and a purported Turner/Finley2
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1
Appellant’s Pa.R.A.P. 1925 statement states, “In accordance with
[Pa.R.A.P.] 1925(c)(4), counsel informs the court that he intends to file an
Anders brief with the Superior Court.” Concise Statement, 3/21/13, at 1.
Pa.R.A.P. 1925(c)(4) states, “In a criminal case, counsel may file of record
and serve on the judge a statement of intent to file an Anders/McClendon
brief in lieu of filing a Statement.”
2
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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brief.3 We will refer to counsel’s erroneously titled Anders brief as a
Turner/Finley brief.
Prior to addressing Appellant’s claims on appeal, we must address
counsel’s petition to withdraw as counsel. When counsel seeks to withdraw
representation in a collateral appeal, the following conditions must be met:
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 pro se, or with the assistance
of privately retained counsel;
____________________________________________
3
Counsel erroneously purports to withdraw under Anders v. California,
386 U.S. 738 (1967), which applies when counsel seeks to withdraw from
representation on direct appeal. When, as in this case, counsel seeks to
withdraw from representation on collateral appeal, the dictates of Finley and
Turner are applicable. Commonwealth v. Wrecks, 931 A.2d 717, 721
(Pa. Super. 2007) (counsel petitioning to withdraw from PCRA
representation must proceed not under Anders, but under Turner and
Finley). We note that elsewhere in his filings, counsel refers to the
Turner/Finley standard for withdrawal. Because an Anders brief provides
greater protection to a defendant, this Court may accept an Anders brief in
lieu of a Turner/Finley “no merit” letter. Commonwealth v. Reed, 107
A.3d 137, 139 n.5 (Pa. Super. 2014).
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5) The court must conduct its own independent review of the
record in 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. Daniels, 947 A.2d 795, 798 (Pa. Super. 2008) (internal
punctuation marks omitted) (citing Commonwealth v. Friend, 896 A.2d
607, 615 (Pa. Super. 2006)); see also Commonwealth v. Doty, 48 A.3d
451 (Pa. Super. 2012) (listing conditions to be met by counsel in seeking to
withdraw in collateral appeal.).
Here, counsel described the extent of his review, evaluated the issues,
and concluded that the appeal is frivolous. Counsel has also listed issues
relevant to this appeal and explained why, in his opinion, the issues are
without merit. In addition, counsel has included a letter sent to Appellant
containing a copy of his motion to withdraw and a statement advising
Appellant of his right to proceed pro se or through privately-retained
counsel. Thus, we conclude that counsel has substantially complied with the
requirements necessary to withdraw as counsel. See Commonwealth v.
Karanicolas, 836 A.2d 940, 947 (Pa. Super. 2003) (holding that substantial
compliance with the requirements to withdraw as counsel will satisfy the
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Turner/Finley criteria). We now independently review Appellant’s claims to
ascertain whether they entitle him to relief.4
Counsel identifies the following issues in the Turner/Finley brief:
Whether [A]ppellant’s trial counsel was ineffective for
failing to obtain certain discovery prior to the commencement of
trial?
Whether the evidence was insufficient to sustain the
conviction for Intimidation of Witnesses or Victims since the
Commonwealth failed to prove that [Appellant] actually
intimidated a witness or victim?
Turner/Finley Brief at 7.
To be entitled to PCRA relief, an appellant must establish, by a
preponderance of the evidence, that 1) his conviction or sentence resulted
from one or more of the enumerated errors in 42 Pa.C.S. § 9543(a)(2);
2) his claims have not been previously litigated or waived, id. at
§ 9543(a)(3); and 3) 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. at § 9543(a)(4). We address Appellant’s
issues in reverse order.
Counsel’s sufficiency-of-the-evidence issue relating to Appellant’s
conviction for intimidation of witnesses is waived because he failed to make
any argument regarding this claim in his brief. Commonwealth v.
____________________________________________
4
We note that Appellant has not filed either a pro se brief or retained
alternate counsel for this appeal.
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Woodard, ___ A.3d ___, 2015 WL 7767271, 692 CAP (Pa. 2015) (decided
December 3, 2015) (The appellant’s failure to identify substance of particular
pretrial motion at issue and failure to set forth any argument whatsoever in
support of claim constitutes waiver); Commonwealth v. Bullock, 948 A.2d
818, 823 (Pa. Super. 2008) (holding that issue identified on appeal but not
properly developed in appellate brief is waived).
Moreover, we addressed this specific issue in Appellant’s direct appeal.
Therein, this Court concluded that “a sufficiency challenge to Appellant’s
conviction of intimidation of a witness or victim, graded as a second-degree
misdemeanor, was frivolous.” Richards, (unpublished memorandum at 10).
Therefore, this claim was previously litigated, as well. See 42 Pa.C.S. §
9543(a)(3) (“To be eligible for relief, . . . the petitioner must plead and
prove . . . [t]hat the allegation of error has not been previously
litigated . . . .”).
Appellant’s other issue asserts the ineffective assistance of trial
counsel for failure to file post-sentence motions; however, Appellant does
not delineate the basis for the motion. We gain some insight by way of
counsel’s explanation in his brief concerning why the issue is frivolous.
Turner/Finley Brief at 11. There, counsel maintains as follows:
This issue is frivolous, however, since [Appellant] filed a
pro se motion for reconsideration of sentence asserting
mitigating circumstances were present and that discovery was
incomplete and raised a claim of insufficiency of evidence on
direct appeal. The issues raised by [Appellant’s] pro se
pleadings were addressed by the trial judge and denied.
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Furthermore, [Appellant’s] sufficiency of evidence claim was
raised on direct appeal, the record reviewed by the Superior
Court and subsequently denied. [Appellant] was still
represented by counsel when he file[d] his pro se motions. The
result is that trial counsel’s failure to file post sentence motions
is now a legal nullity which did not preserve his sentencing
claims. Commonwealth v. Nischan, 928 A.2nd 349, 355. The
Superior Court determined that the trial court had conducted a
presentence investigation, referenced applicable guidelines and
provided a thorough statement of reasons for imposing a
sentence within the standard range concluding that no colorable
discretionary sentencing claims exist. [Richards, (unpublished
memorandum at 11 n.10)[5]].
____________________________________________
5
We stated on direct appeal:
[I]n his pro se post sentence motions, Appellant sought to have
his sentence modified based on his assertions that “mitigating
circumstances were present . . . given that ‘the discovery was
incomplete, anger management was completed without being
informed by the court, and he was also in the process of
completing college, and had no priors, only current summary
offenses.’” Appellant’s Pro Se Mot. for Recons. Of Sentence,
2/4/13.
However, because Appellant was represented by counsel
when he filed his motions to modify the sentence pro se, they
were legal nullities that did not operate to preserve his
sentencing claims. See [Commonwealth v.] Nischan, 928
A.2d [349] at 355 [(Pa. Super. 2007)]. In any event, the trial
court had a presentence investigation report at the time of
sentencing, expressly referenced the guideline sentences
suggested by the Sentencing Code, and provided a thorough
statement of reasons for its imposition of standard range,
consecutive sentences. See N.T., 1/30/12,at 16-24.
Accordingly, our review reveals no colorable discretionary
sentencing claims in this appeal. See generally,
Commonwealth v. Moury, 992 A.2d 162, 171 (Pa. Super.
2010).
Richards, (unpublished memorandum at 11 n.10.
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Turner/Finley Brief at 11–12.
We note that on direct appeal, this Court addressed the filing of
Appellant’s pro se post-sentence motions as follows:
Appellant, acting pro se, sent to the trial court motions to
reconsider the sentences on February 4, 2013, although the
court did not grant trial counsel leave to withdraw.8 No
counseled post-sentence motions were filed on behalf of
Appellant. However, the court denied the pro se post-sentence
motions on February 14th.
8
Instantly, the trial court properly forwarded
Appellant’s pro se motions to the clerk of the courts.
See Pa.R.Crim.P. 576(A)(5). However, because the
record does not show that the court granted trial
counsel leave to withdraw, Appellant was
represented by counsel when he delivered his pro se
motions to the court. See Pa.R.Crim.P. 120(A)(4).
Accordingly, Pa.R.Crim.P. 576(A)(4) required that
the clerk of courts accept Appellant’s pro se motions,
time stamp them, place them in the files, and
forward timestamped copies to trial counsel. See
Pa.R.Crim.P. 576(A)(4). Furthermore, the
prohibition on “hybrid representation” precluded the
trial court from ruling on the merits of Appellant’s
pro se motions. See Commonwealth v. Nischan,
928 A.2d 349, 355 (Pa. Super. 2007) (describing
counseled defendant’s pro se post-sentence motion
as “a nullity, having no legal effect”).
To plead and prove ineffective assistance of counsel, a petitioner must
establish: (1) that the underlying issue has arguable merit; (2) counsel’s
actions lacked an objective reasonable basis; and (3) actual prejudice
resulted from counsel’s act or failure to act. Commonwealth v. Stewart,
84 A.3d 701, 706 (Pa. Super. 2013) (en banc). A claim of ineffectiveness
will be denied if the petitioner’s evidence fails to meet any one of these
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prongs. Commonwealth v. Martin, 5 A.3d 177, 183 (Pa. 2010). Counsel
is presumed to have rendered effective assistance of counsel.
Commonwealth v. Montalvo, 114 A.3d 401, 410 (Pa. 2015). We have
explained that trial counsel cannot be deemed ineffective for failing to
pursue a meritless claim. Commonwealth v. Loner, 836 A.2d 125, 132
(Pa. Super. 2003) (en banc).
It is clear that the underlying issue lacks arguable merit. In
addressing this issue, the PCRA court explained as follows:
The trial attorney was remiss in not lodging on
[Appellant’s] behalf post-sentence motions. Even appreciating
his testimony at the PCRA hearing that after verdict and before
sentencing [Appellant] was repeatedly raising claims of
incompetent stewardship, in the absence of a successor lawyer
entering of-record his or her appearance, trial counsel should
have lodged the requested post-sentence motions or
alternatively, and consistent with his admonishment to
[Appellant] that he would need to secure representation by
another lawyer[,] filed a petition to withdraw appearance.
Although [Appellant’s] trial attorney neither filed post-sentence
motions nor a withdrawal petition, the same on the record at bar
does not warrant [PCRA] remedy.
As adduced at the PCRA hearing, [Appellant] sought to
have trial counsel lodge post-sentence motions challenging the
sufficiency of the prosecution’s trial evidence and seeking to
have this court reconsider its sentence. Regarding a challenge
to the legal adequacy of the Commonwealth’s trial evidence, the
same was reviewed and decided adverse to [Appellant] on direct
appeal by the Superior Court. Because this legal sufficiency
claim has been previously litigated, it simply cannot be a viable
basis for the now sought after collateral relief. 42 Pa.C.S.
§§ 9543(a)(3) and 9544(a)(2). Salient to a reconsideration of
sentence filing, the merits of the same [were] decided by this
court, albeit stemming from [Appellant’s] pro se pleadings.
Despite his trial lawyer’s failure to seek a reconsideration of
sentence, [Appellant] was in fact afforded by this court
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sentencing reconsideration review. Accordingly, [Appellant] on
such a record has not established the necessary prejudice to a
finding that except for this challenged omission[,] the
proceeding’s outcome would have been different.
Commonwealth v. March, [598 A.2d 961, 962 (Pa. 1991)] and
Commonwealth v. Buehl, [508 A.2d 1166, 1174 (Pa. 1986)].
PCRA Court Order, 2/18/15, at 1 n.2 (some internal citations omitted). 6
In summary, we conclude that Appellant’s issues are either waived,
previously litigated, or lack arguable merit. Moreover, having conducted an
independent review of the record in light of the PCRA petition and the issues
set forth therein, as well as the contents of counsel’s motion to withdraw
and brief, we agree that the PCRA petition is meritless and permit counsel to
withdraw.
Motion to withdraw granted. Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/25/2016
____________________________________________
6
The PCRA court noted that it “wholly incorporated as if fully set forth
herein” “its order from which the instant appeal was taken.” PCRA Court
Opinion, 6/1/15, at 12, 11.
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