Com. v. Parker, J.

J-S71035-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT
OF
PENNSYLVANIA
Appellee

v.

JUJUAN PARKER,

Appellant No. 2924 EDA 2016

Appeal from the PCRA Order August 30, 2016
in the Court of Common Pleas of Delaware County
Criminal Division at No.: CP-23-CR-0007463-2010

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

MEMORANDUM BY PLATT, J.: FILED JANUARY 22, 2018

Appellant, Jujuan Parker, appeals pro se from the denial of his first

petition pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§

9541-9546. We affirm.

A previous panel of this Court set forth the background of this case as

follows on direct appeal.

On the evening of September 5, 2010, Tyrone Thompson
(“Thompson”) and Jeffrey Joyner, Jr., (“Joyner”) were shot to
death on the 2700 block of Kane Street in the City of Chester.
Eyewitnesses testified that shortly prior to the shooting, they saw
a black van, driven by Brian Selby (“Selby”), come to a stop on
the 2700 block of Kane Street. [Appellant] was in the passenger’s
seat of the van. The eyewitnesses saw Selby exit the van and
attempt to put a mask on his face. When Selby noticed the group
of eyewitnesses watching him, he reentered the van and drove
off. Shortly thereafter, the same black van reappeared on the
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* Retired Senior Judge assigned to the Superior Court.
J-S71035-17

2700 block of Kane Street, driven by [Appellant]. [Appellant]
stopped the vehicle, whereupon Selby exited and approached the
victims. [Appellant] remained in the vehicle. Selby fired eleven
shots at the victims, striking each victim five times. Selby then
reentered the van, whereupon [Appellant] drove off and fled the
scene. Emergency responders transported the victims to a
hospital, where they were pronounced dead.

One of the eyewitnesses to the crime, Shanecia Word
(“Word”), initially gave a police statement implicating [Appellant]
and Selby in the shooting. Subsequently, however, Word
recanted her statement. Notable to this appeal, Word did not
testify at [Appellant]’s jury trial, but she did testify at Selby’s
separate, subsequent jury trial and stated that the police had
coerced her into making a false eyewitness statement. At
[Appellant]’s trial, a detective involved in the investigation of the
shooting testified that his efforts to locate Word for [Appellant]’s
trial were unsuccessful, despite repeated attempts.

Following the shooting, the police arrested [Appellant] and
Selby and charged them each with two counts of criminal homicide
and various other offenses. Thereafter, the Commonwealth filed
a [p]etition to sever Selby’s case from [Appellant’s] case, which
the trial court granted. At the close of [Appellant]’s trial, the jury
found him guilty of two counts of third-degree murder[, and two
counts of aggravated assault, which merged for sentencing
purposes]. Approximately two months after [Appellant]’s
conviction, the jury in Selby’s case acquitted Selby of all charges.

Prior to sentencing in [Appellant]’s case, the Commonwealth
gave notice of its intent to seek imposition of a mandatory
sentence of life in prison under 42 Pa.C.S.A. § 9715 (stating that
any person convicted of murder of the third degree and who had
been previously convicted at any time of murder or voluntary
manslaughter must be sentenced to life in prison). On February
13, 2012, the trial court sentenced [Appellant] to a prison term of
18 to 40 years for his murder conviction regarding the death of
Joyner (“the Joyner conviction”). The court then imposed a
sentence of life in prison as to [Appellant]’s murder conviction
regarding the death of Thompson, using the Joyner conviction to
apply the mandatory sentencing provision under section 9715.

[Appellant] timely filed a post-sentence [m]otion alleging
that the Commonwealth’s failure to present Word as a witness
during his trial entitled him to a new trial. According to

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[Appellant], Word’s recantation of her initial police statement at
Selby’s trial called into question the truthfulness of the inculpatory
testimony of the other eyewitnesses who testified at [Appellant]’s
trial. After conducting a hearing, the trial court denied
[Appellant]’s [m]otion. [Appellant] then filed a timely [n]otice of
appeal.

(Commonwealth v. Parker, No. 2177 EDA 2012, unpublished memorandum

at *1-3 (Pa. Super. filed May 29, 2013)) (footnote omitted).

This Court affirmed Appellant’s judgment of sentence on May 29, 2013.

(See id. at *4-10) (concluding that Appellant’s challenge to legality of his

sentence lacked merit, and that record supported trial court’s holding that

Commonwealth was not obligated to call Ms. Word and it diligently attempted

to secure her presence at trial). On November 21, 2013, our Supreme Court

denied Appellant’s petition for allowance of appeal. (See Commonwealth v.

Parker, No. 454 MAL 2013 (Pa. filed Nov. 21, 2013)).

On April 21, 2014, Appellant pro se filed his first PCRA petition. The

PCRA court appointed counsel who filed a Turner/Finley “no-merit” letter and

petition to withdraw.1 On May 18, 2016, the PCRA court issued a notice of

intent to dismiss the PCRA petition pursuant to Pennsylvania Rule of Criminal

Procedure 907(1). In the same order, the court granted counsel’s petition to

withdraw.2 (See Order and Rule 907(1) Notice, 5/18/16).
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1Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth v.
Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).

2 We observe that the PCRA court has not updated the docket to reflect its
granting of counsel’s petition to withdraw or Appellant’s pro se status. It
appears that this error affected at least one later order of the court, granting

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The PCRA court granted Appellant’s request to file objections, and

ordered that he shall have until August 16, 2016, to file an amended PCRA

petition or objections to counsel’s “no-merit” letter. (See Order, 6/17/16).

Appellant mailed a response to the court’s notice on August 10, 2016. (See

Appellant’s Brief, at Appendix B; see also id. at Appendix C). On August 30,

2016, the PCRA court entered an order dismissing the PCRA petition. This

timely appeal followed.3

Appellant raises four questions on appeal.

1. Whether a violation of the Constitution and laws of
Pennsylvania and the Constitution and laws of the United
States occurred which so undermined the truth-determining
process that no reliable adjudication of guilt or innocence could
have[ ]taken place but in violation of [Appellant’s] rights as
guaranteed by the Fourth, Fifth, Sixth, Eigth and Fourteenth
Amendments to the United States Constitution, and Article
One, Sections Eight, Nine and Twenty-Three of the
Pennsylvania Constitution?

2. Did an unconstitutional breakdown occur during [Appellant’s]
pre-trial, trial, post-sentence, direct appeal and collateral
proceedings which rendered the proceedings fundamentally
unfair in violation of his rights to due process and equal
protection of law?

3. Whether post-conviction counsel’s pretexted tendered defense
and perfunctory performance with regard to the complained of
derelictions of duty and breach of professional responsibility to
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an extension of time for Appellant to file his concise statement of errors
complained of on appeal, which the docket indicates was forwarded to PCRA
counsel rather than Appellant. (See Docket). Appellant does not appear to
have been prejudiced by this administrative error.

3 Pursuant to the PCRA court’s order, Appellant filed his statement of errors
complained of on appeal on October 31, 2016. The PCRA court entered its
opinion on February 3, 2017. See Pa.R.A.P. 1925.

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the attorney-client relationship during the PCRA proceedings
resulted in ineffective assistance of counsel depriving
[Appellant] of his right to a constitutional and meaningful
review under the Post-Conviction Relief Act[,] and the United
States Supreme Court’s ruling in Martinez v. Ryan, 132 S.Ct.
1309, 182 L.Ed.2d 272 (2012)?

4. Whether the PCRA court erred in failing to file an opinion which
fairly addressed in a substantive manner and in full all of the
claims raised as a basis for relief and with regards to PCRA
counsel’s failings which do not conform to the standards set
forth in Commonwealth v. Turner, 518 Pa. 491, 544 A.2d
927 (Pa. 1988) and its progeny?

(Appellant’s Brief, at 4).4 We have reordered Appellant’s issues for ease of

disposition.

In the first issue, Appellant claims he is entitled to relief because of

several instances of trial counsel’s ineffectiveness. Specifically, he contends

that trial counsel was ineffective for failing to object to the jury instruction

regarding accomplice liability when neither the indictment nor the

Commonwealth’s case in chief specifically set forth accomplice liability. (See

id. at 9-17). He also argues that trial counsel was ineffective for failing to call

Ms. Word to testify, and failing to object to admission of testimony concerning

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4 Appellant set forth four questions in his statement of questions involved;
however, the argument portion of his brief contains eight separate
subsections. (See Appellant’s Brief, at 4, 9-29). Thus, we could quash his
brief for failure to comply with our rules of appellate procedure. See Pa.R.A.P.
2101, 2119(a). Nevertheless, we will consider the issues set forth in his
statement of questions involved. See Commonwealth v. Lyons, 833 A.2d
245, 251–52 (Pa. Super. 2003), appeal denied, 879 A.2d 782 (Pa. 2005)
(“[A]lthough 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.”) (citation omitted); see also Pa.R.A.P. 2116(a) (“No question will
be considered unless it is stated in the statement of questions involved or is
fairly suggested thereby.”).

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his threatening her. (See id. at 13-15). Finally, he claims that trial counsel

was ineffective for failing to object to the admission of a prison phone call as

hearsay, and failure to secure Tawuana Cottman as a witness. (See id. at

19-21). Appellant’s ineffectiveness claims do not merit relief.

Our well-settled standard and scope of review for the denial of a PCRA

petition is as follows:

We review the denial of PCRA relief for a determination of whether
the PCRA court’s findings are supported by the record and free of
legal error. A petitioner is eligible for PCRA relief only when he
proves by a preponderance of the evidence that his conviction or
sentence resulted from one or more of the circumstances
delineated in 42 Pa.C.S.[A.] § 9543(a)(2).

Commonwealth v. Natividad, 938 A.2d 310, 320 (Pa. 2007) (citations

omitted).

To be eligible for relief under the PCRA, an appellant must prove that

his conviction resulted from one of several enumerated events, including the

ineffective assistance of counsel. See 42 Pa.C.S.A. § 9543(a)(2).

It is well-established that counsel is presumed to have
provided effective representation unless the PCRA petitioner
pleads and proves all of the following: (1) the underlying legal
claim is of arguable merit; (2) counsel’s action or inaction lacked
any objectively reasonable basis designed to effectuate his client’s
interest; and (3) prejudice, to the effect that there was a
reasonable probability of a different outcome if not for counsel’s
error. See Commonwealth v. Pierce, 527 A.2d 973, 975–76
(Pa. 1987); Strickland v. Washington, 466 U.S. 668 (1984).
The PCRA court may deny an ineffectiveness claim if “the
petitioner’s evidence fails to meet a single one of these prongs.”
Commonwealth v. Basemore, 744 A.2d 717, 738 n.23 (Pa.
2000). . . . Because courts must presume that counsel was
effective, it is the petitioner’s burden to prove otherwise. See

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Pierce, supra; Commonwealth v. Holloway, 739 A.2d 1039,
1044 (Pa. 1999). . . .

Natividad, supra at 321 (citation formatting provided); see also

Commonwealth v. Daniels, 963 A.2d 409, 419 (Pa. 2009) (“[An appellant’s]

failure to satisfy any prong of the ineffectiveness test requires rejection of the

claim of ineffectiveness.”) (citation omitted).

First, Appellant argues that counsel was ineffective for failing to object

to the prosecutor’s closing remarks or the jury instruction concerning

accomplice liability. (See Appellant’s Brief, at 9-13, 15-18). Appellant fails

to show that his underlying claim is of arguable merit. See Natividad, supra

at 321.

A defendant may be convicted as an accessory though only
charged as a principal. As long as the defendant is put on notice
that the Commonwealth may pursue theories of liability that link
the defendant and another in commission of crimes, the defendant
cannot claim that the Commonwealth’s pursuit of such a theory
surprised and prejudiced the defendant.

Commonwealth v. Spotz, 716 A.2d 580, 588 (Pa. 1998), cert. denied, 526

U.S. 1070 (1999) (citations omitted).

Here, the record reflects that Appellant had notice that the

Commonwealth might pursue a theory of liability linking himself and another

in commission of the crimes. Appellant and Mr. Selby were named as co-

conspirators in the criminal complaint charging them with murder, and the

prosecutor stated in his opening statement that “the Commonwealth intends

to prove that Brian Selby and [Appellant] are responsible for the murders of

Mr. Thompson and Mr. Joiner.” (N.T. Trial, 11/29/11, at 67). Thus, Appellant

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knew that the Commonwealth was prosecuting him as both an accomplice and

a principal, and therefore he cannot demonstrate that trial counsel was

ineffective for not objecting to the prosecutor’s accomplice liability argument

or the trial court’s jury instruction. See Spotz, supra at 588. Accordingly,

Appellant has failed to prove that his underlying legal claim was of arguable

merit, and not met his burden under Pierce. See Daniels, supra at 419;

Natividad, supra at 320-21.

Second, Appellant alleges that counsel was ineffective for failing to call

Ms. Word to testify on his behalf. He claims that, because Ms. Word recanted

her eyewitness testimony at his co-defendant’s trial, and because his co-

defendant was acquitted, he was prejudiced by Ms. Word not testifying at his

trial. (See Appellant’s Brief, at 13-15). Appellant’s claim lacks merit.

To satisfy his burden of proving trial counsel’s ineffectiveness for failing

to call a witness, an appellant must present evidence that the witness “was

both (1) available and (2) prepared to testify for Appellant at trial.”

Commonwealth v. Shaffer, 763 A.2d 411, 415 (Pa. Super. 2000) (citation

omitted).

Here, Appellant has failed to show that Ms. Word was either available or

prepared to testify on his behalf. The record reflects that after diligently

attempting to serve Ms. Word with a subpoena to testify, the Commonwealth

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was unable to reach Ms. Word to obtain her testimony at trial.5 (See N.T.

Trial, 12/01/11, at 130-32).

Because Appellant did not prove that Ms. Word was available and

prepared to testify on his behalf, he cannot prove that trial counsel was

ineffective for failing to call her. See Shaffer, supra at 415. Therefore,

Appellant has failed to demonstrate that his underlying legal claim was of

arguable merit, and has not met his burden under Pierce. See Daniels,

supra at 419; Natividad, supra at 320-21.

Finally, Appellant argues that counsel was ineffective for failing to object

to the admission of the transcript of the prison phone call where he solicited

his mother and Ms. Cottman to prevent Ms. Word from testifying, because he

argued that the transcript was hearsay. (See Appellant’s Brief, at 20-22).

Appellant’s claim lacks merit.

“Hearsay is an out-of-court statement offered for the truth of the matter

asserted and is inadmissible unless it falls within an exception to the hearsay

rule. See Pa.R.E. 801(c); Pa.R.E. 802.” Commonwealth v. Mosley, 114

A.3d 1072, 1084 (Pa. Super. 2015), appeal denied, 166 A.3d 1215 (Pa. 2017)

(case citation omitted). One such exception permits statements offered

against an opposing party, which were made by the party in an individual
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5 In fact, the evidence instead demonstrates that Appellant solicited the help
of his mother and Ms. Cottman to prevent Ms. Word from testifying at trial.
(See N.T. Trial, 12/01/11, at 179-83; N.T. Trial, 12/02/11, at 7-15, 17-28,
32-33).

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capacity. See Pa.R.E. 803(25); Commonwealth v. Weiss, 81 A.3d 767, 800

(Pa. 2013) (“A defendant’s threat of another is a voluntary extrajudicial

statement that can be used against the defendant at trial, even though the

threat contains no clear admission of guilt of the offense prosecuted.”)

(citation omitted).

Here, the PCRA court held that:

While incarcerated at the Delaware County Prison,
[Appellant] and Ms. Cottman communicated regularly by
telephone. The transcripts of these telephone conversations were
admitted into evidence at [Appellant’s] trial. The substance of
these conversations suggested threats being made to [Ms.] Word
if she were to testify at trial consistent with her statement to police
that implicated [Appellant] and the co-defendant. First, these
conversations qualify as admissible hearsay, given they are
statements by a party opponent. . . .

(PCRA Court Opinion, 2/03/17, at 6).

We conclude that the record supports the PCRA court’s finding that

Appellant’s statements were admissible as statements by a party opponent,

and that his ineffectiveness claim is meritless. See Natividad, supra at 320.

Appellant has failed to demonstrate that his underlying legal claim concerning

the admissibility of his statements has arguable merit.6 Thus, he has failed to

meet his burden under Pierce. See Daniels, supra at 419; Natividad,

supra at 320-21.
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6 Moreover, to the extent that Appellant claims that trial counsel was
ineffective for failing to call Ms. Cottman as a witness, he has attempted to
prove neither that Ms. Cottman was available, nor prepared to testify on his
behalf. (See Appellant’s Brief, at 21-22). Thus, he has not met his burden
of demonstrating arguable merit with respect to his claim of trial counsel’s
ineffectiveness. See Shaffer, supra at 415.

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Finally, Appellant claims that trial counsel’s errors constitute cumulative

prejudice. (See Appellant’s Brief, at 24-25). Because each individual claim

of ineffectiveness fails because of lack of merit or arguable merit, they do not

merit relief collectively. See Commonwealth v. Spotz, 18 A.3d 244, 321

(Pa. 2011). Appellant has failed to prove that trial counsel was ineffective,

thus the first issue does not merit relief.

In the second and third issues,7 Appellant contends that his

constitutional rights were violated because PCRA counsel was ineffective for

failing to raise trial counsel’s ineffectiveness. (See Appellant’s Brief, at 23,

25-27). Appellant’s claims do not merit relief.

In order to set forth a claim of ineffectiveness of PCRA counsel for failure

to raise trial counsel’s ineffectiveness, Appellant must “develop all three

prongs of the Pierce test as to the ineffectiveness of trial counsel.”

Commonwealth v. Hall, 872 A.2d 1177, 1184 (Pa. 2005) (citations and

footnote omitted). “In other words, if a petitioner fails to develop any of the

three Pierce prongs regarding the underlying issue of trial counsel

ineffectiveness, he or she will have failed to establish the arguable merit prong

of the claim of subsequent counsels’ ineffectiveness.” Id. (citations omitted).

Here, because Appellant failed to establish that trial counsel was

ineffective, we conclude that he has failed to meet his burden of establishing

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7 The second and third issues both concern a violation of Appellant’s
constitutional rights because of PCRA counsel’s ineffectiveness; therefore, we
discuss these issues together.

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the arguable merit prong with respect to proving PCRA counsel’s

ineffectiveness. See id. The second and third issues do not merit relief.

In the fourth issue, Appellant claims that the PCRA court erred in failing

to file an opinion that complies with the dictates of Rule 1925(a). (See

Appellant’s Brief, at 28-29). Specifically, he claims that the court failed to

address the claims raised in Appellant’s timely response to the notice to

dismiss and his amendment to his PCRA petition; failed to conduct an

evidentiary hearing; and failed to comply with Turner, supra. Appellant’s

claim does not merit relief.

Initially, we note that pursuant to the prison mailbox rule, Appellant

appears to have timely filed his response to the notice of intent to dismiss.

See Commonwealth v. Chambers, 35 A.3d 34, 40 (Pa. Super. 2011),

appeal denied, 46 A.3d 715 (Pa. 2012). On June 17, 2016, the PCRA court

extended the deadline for Appellant to file a timely response to its Rule 907(1)

notice until August 16, 2016. Appellant has submitted a copy of a cash slip

indicating that he delivered his response to prison officials on August 10, 2016.

(See Appellant’s Brief, at Appendix C); Chambers, supra at 40 (“[A] cash

slip may be sufficient to establish that an appeal was delivered to prison

officials or deposited in the prison mailbox within the [] filing period.”) (citation

and quotation marks omitted). Therefore, pursuant to the prisoner mailbox

rule, Appellant’s response was timely.

However, due to a breakdown in the process of the court, the docket

reflects that Appellant’s response was not filed until October 31, 2016.

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Nevertheless, because Appellant raised the same concerns in his Rule 1925(b)

statement of errors as he did in his response to the notice to dismiss, the

PCRA court addressed all of the concerns raised in Appellant’s response in its

Rule 1925(a) opinion. Therefore, we conclude that this error was harmless.

Appellant next claims that the PCRA court erred because it failed to

conduct an evidentiary hearing concerning trial and appellate counsel’s

ineffectiveness. (See Appellant’s Brief, at 28-29). We disagree.

“There is no absolute right to an evidentiary hearing on a PCRA petition,

and if the PCRA court can determine from the record that no genuine issues

of material fact exist, then a hearing is not necessary.” Commonwealth v.

Jones, 942 A.2d 903, 906 (Pa. Super. 2008), appeal denied, 956 A.2d 433

(Pa. 2008) (citation omitted). “With respect to the PCRA court’s decision to

deny a request for an evidentiary hearing . . . such a decision is within the

discretion of the PCRA court and will not be overturned absent an abuse of

discretion.” Commonwealth v. Mason, 130 A.3d 601, 617 (Pa. 2015)

(citation omitted).

Here, Appellant has not demonstrated that a genuine issue of material

fact existed which would have necessitated a hearing. In fact, he argued that

the court “erred by failing to grant [him] any substantial relief on his record-

based claims where there are no disputes with respect to material facts.”

(Appellant’s Brief, at 28 (citing Pa.R.Crim.P. 907(2))). Upon review, we

conclude that the PCRA court’s decision not to hold an evidentiary hearing was

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not an abuse of its discretion. See Mason, supra at 617. Appellant’s claim

does not merit relief.

Appellant also claims that the PCRA court’s opinion was defective

because it failed to comply with the standards set forth in Turner, supra.

(See Appellant’s Brief, at 28-29). Specifically, he claims that the court

accepted PCRA counsel’s “no-merit” letter “in lieu of filing a PCRA opinion[.]”

(Id. at 28). We disagree.

It is well-settled 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 case, PCRA counsel’s petition to withdraw thoroughly addressed

the allegations raised in Appellant’s pro se petition, detailed the nature and

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extent of his review, and set forth the reasons why those issues are meritless;

counsel further explained that he provided a copy of the petition to withdraw

and letter to Appellant. (See Application to Withdraw Appearance, 5/13/16,

at 1-11). Thereafter, the PCRA court stated that it “conducted an independent

review of the record,” and granted counsel’s petition to withdraw. (Order and

Rule 907(1) Notice, 5/18/16, at 1). This satisfied the technical requirements

of Turner/Finley. See Rykard, supra at 1184. Accordingly, Appellant’s

claim that the PCRA court failed to comply with the Turner/Finley

requirement of conducting an independent review lacks merit. Appellant’s

final issue does not merit relief.

Accordingly, because none of Appellant’s claims of error merit relief, we

affirm the order of the PCRA court dismissing Appellant’s petition.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 1/22/2018

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