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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37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. :
:
TERRENCE SNEAD, :
:
Appellant : No. 987 EDA 2015
Appeal from the PCRA Order March 13, 2015
in the Court of Common Pleas of Philadelphia County,
Criminal Division, at No(s): CP-51-CR-0003643-2008
BEFORE: BENDER, P.J.E, OTT, and STRASSBURGER,* J.
MEMORANDUM BY STRASSBURGER, J.: FILED AUGUST 04, 2016
Terrence Snead (Appellant) appeals from the March 13, 2015 order
which denied his petition filed pursuant to the Post Conviction Relief Act
(PCRA), 42 Pa.C.S. §§ 9541-9546.1 We affirm.2
1
Also before us is Appellant’s “motion for stay of appeal and for remand to
the lower court,” in which he avers that PCRA counsel failed to address all of
Appellant’s issues in her Turner/Finley and that there were additional
issues he wished to raise. On December 23, 2015, this Court denied
Appellant’s request without prejudice, allowing him to re-apply for the
requested relief within his brief. In his brief, Appellant lists the issues and
states that an evidentiary hearing is necessary to determine if counsel’s
actions were “reasonable.” However, Appellant has failed to address the
merits of any of the issues or develop an argument in support of them.
Accordingly, we deny this motion.
2
We note with disapproval that the Commonwealth has not filed a brief in
this matter despite having requested and received an extension of time to
do so.
*Retired Senior Judge assigned to the Superior Court.
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The PCRA court summarized the background underlying this matter as
follows.
On November 13, 2009, following a jury trial before [the
trial court, Appellant] was found guilty of murder of the first
degree (H-1) and criminal conspiracy (F-1). Sentencing was
deferred until November 16, 2009, at which time [Appellant] was
sentenced to the mandatory term of life imprisonment.
[Appellant was also sentenced to a consecutive term of not less
than ten years nor more than twenty years of imprisonment for
criminal conspiracy]. On November 23, 2009, [Appellant] filed
post-sentence motions, which were denied by [the trial court] on
March 19, 2010. [Appellant] filed a timely notice of appeal on
April 5, 2010. On September 29, 2011, [this Court] affirmed
[Appellant’s] judgment of sentence, and on March 23, 2012, our
Supreme Court denied [Appellant’s] petition for allowance of
appeal. [Commonwealth v. Snead, 34 A.3d 241 (Pa. Super.
2011), appeal denied, 40 A.3d 1236 (Pa. 2012)].
On January 22, 2013, [Appellant] filed a pro se petition
under the Post-Conviction Relief Act (PCRA). Counsel was
appointed and, on September 24, 2014, filed a
[Turner/Finley3] “no merit” letter and motion to withdraw as
counsel. On January 29, 2015, [the PCRA court] sent
[Appellant] notice of its intent to deny and dismiss his PCRA
petition without a hearing pursuant to Pa.R.Crim.P. 907 (907
Notice).
PCRA Court Opinion, 9/9/2015, at 1-2 (citations and footnotes removed).
Appellant pro se filed a response to the 907 notice, objecting to the
court’s intent to dismiss his petition and asserting PCRA counsel’s
ineffectiveness. On March 13, 2015, the PCRA court dismissed Appellant’s
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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petition and permitted counsel to withdraw. This timely-filed appeal
followed.4
On appeal, Appellant challenges the PCRA court’s decision to permit
counsel to withdraw and the court’s conclusion that Appellant’s issues were
without merit.5 As such, we will address these claims mindful of the
following standard. “Our standard of review of a [PCRA] court order
granting or denying relief under the PCRA calls upon us to determine
“whether the determination of the PCRA court is supported by the evidence
of record and is free of legal error.’” Commonwealth v. Barndt, 74 A.3d
185, 192 (Pa. Super. 2013) (quoting Commonwealth v. Garcia, 23 A.3d
1059, 1061 (Pa. Super. 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).
4
Both Appellant and the PCRA court complied with the mandates of
Pa.R.A.P. 1925.
5
We observe that the issues presented and argued within Appellant’s brief
are different from those raised in his concise statement of errors complained
of on appeal, which are different from the issues raised in his pro se
response to the PCRA court’s 907 notice and his pro se PCRA petition.
Consequently, in accordance with our case law, we will only review those
issues which have been properly preserved and argued within his brief. See
Commonwealth v. Butler, 812 A.2d 631, 634 (Pa. 2002) (“[A]ny issues
not raised in a Rule 1925(b) statement are waived.”). See also
Commonwealth v. Montalvo, 641 A.2d 1176, 1184 (Pa. Super. 1994)
citing Commonwealth v. Rodgers, 605 A.2d 1228, 1239 (Pa. Super. 1992)
(“[W]e must deem an issue abandoned where it has been identified on
appeal but not properly developed in the brief.”).
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Appellant contends PCRA counsel’s Turner/Finley letter was
insufficient and failed to meet the requirements as set forth by our courts.
Specifically, Appellant contends counsel’s letter failed to address all issues
raised in Appellant’s pro se petition,6 did not state with specificity which files
and transcripts counsel reviewed, and did not raise additional meritorious
issues that were not included in the pro se petition, but “were present on the
face of the record.” Appellant’s Brief at 12-15.
The procedural requirements set forth in Turner/Finley, govern
withdrawal by counsel from representation on PCRA appeals. To withdraw
from representation at the PCRA court level,
counsel must review the case zealously. Turner/Finley counsel
must then submit a “no-merit” letter to the trial 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.
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.
Commonwealth v. Wrecks, 931 A.2d 717, 721 (Pa. Super. 2007).
In responding to Appellant’s contention that PCRA counsel’s
Turner/Finley letter failed to meet the applicable standards, the PCRA
court stated the following:
6
While Appellant failed to state within his brief which issues PCRA counsel
neglected to address, he has done so in other filings and the PCRA court has
addressed this issue. As such, we will not find waiver.
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In the instant case, PCRA counsel complied with all of the
requirements set forth in Turner/Finley. Contrary to
[Appellant’s] assertion, PCRA counsel’s Finley letter adequately
detailed the nature and extent of her review: “Pursuant to [PCRA
counsel’s] appointment, [PCRA counsel] reviewed the Quarter
Sessions’ file in Room 206, Criminal Justice Center, [Appellant’s]
pro se PCRA petition, the docket entries and exchanged
correspondence with [Appellant].” Throughout the Finley letter,
PCRA counsel makes reference to, and cites to the record.
[Appellant] claims that PCRA counsel failed to adequately detail
the nature of her review by failing to state which transcripts she
reviewed specifically; yet fails to cite to any authority requiring
PCRA counsel to detail specifically which transcripts were
reviewed. The citations to the trial record in counsel’s Finley
letter provide sufficient support for counsel’s review of the trial
transcripts. PCRA counsel stated that she reviewed the entire
Quarter Sessions’ file, [Appellant’s] pro se PCRA petition, and all
of the docket entries in this case. PCRA counsel also provided a
summary of the facts of this case, and cited applicable case law
to explain why [Appellant’s] claims lacked merit. Therefore,
PCRA counsel did in fact adequately review the record.
PCRA Court Opinion, 9/9/2015, at 15-16.
After a review of counsel’s Turner/Finley letter, we agree with the
PCRA court that counsel provided ample detail regarding her review of
Appellant’s case. Thus, we conclude the PCRA court did not err by
concluding that counsel’s Turner/Finley letter was adequate to permit
withdrawal on this basis.
Appellant also argues that PCRA counsel’s petition was deficient
because it failed to address two issues he raised in his pro se petition.
Specifically, Appellant contends counsel failed to address trial counsel’s
ineffectiveness for failing to object to misstatements made by the
Commonwealth and for failing to object to the trial court’s jury instruction on
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accomplice testimony. In response, the PCRA court directed Appellant to
counsel’s Turner/Finley letter where she addressed the “misstatements”
made by the Commonwealth and detailed the reasoning the issue held no
merit.7
The PCRA court did concede that counsel failed to address the issue
raised in Appellant’s pro se petition regarding the jury instruction. We note
at the outset that accepting PCRA counsel’s Turner/Finley letter when she
failed to address all of Appellant’s issues raised in his pro se petition was a
clear error. See Wrecks, 931 A.2d at 721 (providing counsel must, among
other requirements, list “the issues which the petitioner wants to have
reviewed, explaining why and how those issues lack merit … If counsel fails
to satisfy the foregoing technical prerequisites of Turner/Finley, the court
will not reach the merits of the underlying claims but, rather, will merely
deny counsel’s request to withdraw”). In response to its absence, the PCRA
court found that the omission was harmless because the issue lacked merit.
As such, the PCRA court concluded that Appellant was not prejudiced by its
7
See PCRA Court Opinion, 9/9/2015, at 15 (citing Turner/Finley Letter,
9/24/2014, at 5 (pages unnumbered) (“Second, [Appellant] claims in
paragraphs seven, eight, twelve, twenty-nine, and thirty of his pro se PCRA
petition that the prosecutor was guilty of misconduct when he made certain
arguments to the jury.”)). PCRA counsel continued, averring she had
analyzed these statements and determined the issue surrounding these
statements held no merit. Id. at 5-7 (pages unnumbered).
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absence. PCRA court opinion, 9/9/2015 at 16.8 We agree. After reviewing
the court’s thorough analysis of the issue, we are satisfied with the court’s
conclusion. Accordingly, there would be no point in remanding for counsel to
address this issue. This claim fails.
Lastly, Appellant argues the PCRA court erred in accepting PCRA
counsel’s no-merit letter, when meritorious issues existed and the court
failed to conduct its own independent examination of the record. Appellant’s
Brief at 12. A review of the record directly contradicts Appellant’s assertion.
Along with its 907 notice dismissing Appellant’s petition, the PCRA court
included an opinion setting forth its own analysis and included its own
reasoning why the issues lacked merit. See Notice Pursuant to Pennsylvania
Rule of Criminal Procedure 907, 1/29/2015, at 2-9.9 The PCRA court also
stated within its opinion pursuant to Pa.R.C.P. 1925 that the court
“independently reviewed the record and concluded thereafter that
[Appellant’s] PCRA petition was meritless.” PCRA court opinion, 9/9/2015,
at 16. We are not persuaded by Appellant’s averment that other meritorious
8
In addressing this issue within its opinion, the PCRA court found that the
instruction closely mirrored that of the Pennsylvania Standard Suggested
Jury Instruction on accomplice testimony and that it favored Appellant “in
explaining to the jury that it should consider the accomplice testimony of
Jermaine Rippy, who implicated [Appellant in the] crime, with caution.”
PCRA Court Opinion, 9/9/2015, at 10-11.
9
Although the PCRA court did not include an analysis of Appellant’s issue
regarding trial counsel ineffectiveness for failing to object to the trial court’s
jury instruction within its 907 notice, the court did thoroughly address this
issue within its 1925 opinion.
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issues existed when Appellant has only listed issues he contends could have
been raised, but fails to provide any meaningful arguments to support their
merit. We find the PCRA court adequately examined the record and did not
wholesale adopt counsel’s Turner/Finley letter. No relief is due.
Accordingly, we find that the PCRA court properly dismissed
Appellant’s petition, and as such, we affirm.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/4/2016
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