Com. v. Colon, A., Jr.

J. S58003/17

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
ARIEL COLON, JR., : No. 422 MDA 2017
:
Appellant :

Appeal from the PCRA Order, February 2, 2017,
in the Court of Common Pleas of Schuylkill County
Criminal Division at No. CP-54-CR-0001391-2014

BEFORE: GANTMAN, P.J., SHOGAN, J., AND FORD ELLIOTT, P.J.E.

MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED APRIL 16, 2018

Ariel Colon, Jr., appeals from the February 2, 2017 order denying his

petition for relief filed pursuant to the Post-Conviction Relief Act (“PCRA”),

42 Pa.C.S.A. §§ 9541-9546. Contemporaneously with this appeal, PCRA

counsel has requested leave to withdraw. After careful review, we find PCRA

counsel’s petition satisfies the requirements of Commonwealth v. Turner,

544 A.2d 927 (Pa. 1988), and Commonwealth v. Finley, 550 A.2d 213

(Pa.Super. 1988) (en banc). Accordingly, we grant PCRA counsel leave to

withdraw and affirm the order of the PCRA court.

The relevant facts of this case were summarized by a prior panel of

this court on direct appeal and need not be reiterated here. See

Commonwealth v. Colon, 134 A.3d 500 (Pa.Super. 2015) (unpublished

memorandum at 1-2), citing trial court opinion, 6/10/15 at 2-3. In sum,
J. S58003/17

appellant slashed the victim’s neck with a razor blade, near her carotid

artery, following an argument. On February 10, 2015, appellant was found

guilty of aggravated assault, recklessly endangering another person, and

simple assault1 in connection with this incident. Appellant was found not

guilty of the crimes of criminal attempt to commit first-degree murder and

possessing an instrument of crime (“PIC”).2 On March 19, 2015, the trial

court sentenced appellant to an aggregate term of 9 to 20 years’

imprisonment. At all relevant times during his trial and sentencing,

appellant was represented by Andrea L. Thompson, Esq. (“trial counsel”).

On November 20, 2015, a panel of this court affirmed appellant’s

judgment of sentence, and appellant did not seek allowance of appeal with

our supreme court. See Colon, 134 A.3d 500. On June 27, 2016, appellant

filed a pro se PCRA petition alleging the ineffectiveness of trial counsel. On

July 8, 2016, Jeffrey M. Markosky, Esq. (“PCRA counsel”), was appointed to

represent appellant and filed an amended PCRA petition on his behalf on

December 15, 2016. The PCRA court conducted an evidentiary hearing on

appellant’s petition on January 19, 2017. Following the hearing, the PCRA

court entered an order on February 2, 2017 denying appellant’s petition.

This timely appeal followed on March 1, 2017. On March 3, 2017, the PCRA

court directed appellant to file a concise statement of errors complained of

1 18 Pa.C.S.A. §§ 2702, 2705, and 2701, respectively.

2 Id. §§ 901 (2502) and 907, respectively.

-2-
J. S58003/17

on appeal, in accordance with Pa.R.A.P. 1925(b), within 25 days. Appellant

filed a timely Rule 1925(b) statement on March 28, 2017. On March 29,

2017, the PCRA court filed a one-page Rule 1925(a) opinion indicating that it

was relying on the reasoning set forth in its prior February 2, 2017 opinion.

(See Rule 1925(a) opinion, 3/29/17; PCRA court opinion, 2/2/17 at 2-4.)

Thereafter, on April 6, 2017, PCRA counsel subsequently filed a

“no-merit” letter and a petition to withdraw. Appellant did not file a pro se

response to PCRA counsel’s petition. On December 5, 2017, we entered a

judgment order denying PCRA counsel’s request to withdraw and remanding

this matter to afford PCRA counsel the opportunity to obtain and review the

January 19, 2017 hearing transcript that did not initially appear in the

certified record. See Commonwealth v. Colon, 2017 WL 6014426

(Pa.Super. 2017) (unpublished judgment order). We directed PCRA counsel

“to file an advocate’s brief or another Turner/Finley ‘no-merit’ letter and

petition to withdraw, following a review of the complete record.” Id. at *1.

PCRA counsel complied and filed a “no-merit” letter on February 21, 2018.

On appeal, PCRA counsel raises a litany of ineffectiveness claims on

appellant’s behalf. Specifically, appellant contends that trial counsel

rendered ineffective assistance (i) by failing to provide him with discovery

until two weeks prior to trial; (ii) by virtue of the fact that trial counsel had

previously represented Commonwealth witness James Myers; (iii) by failing

to object to the trial court’s imposition of the deadly weapon enhancement

-3-
J. S58003/17

at sentencing on the basis that he was acquitted of the PIC charge; and

(iv) by failing to file a motion to suppress a razor blade found on his person.

(Turner/Finley brief at 6-8.)

Prior to considering appellant’s arguments, we must address PCRA

counsel’s “no-merit” letter and petition to withdraw from representation. In

Commonwealth v. Muzzy, 141 A.3d 509 (Pa.Super. 2016), a panel of this

court recently reiterated the procedure to be followed when PCRA counsel

files a “no-merit” letter and seeks permission to withdraw from

representation:

Counsel petitioning to withdraw from PCRA
representation must proceed ... under
[Turner/Finley] and . . . must review the case
zealously. Turner/Finley counsel must then submit
a “no-merit” letter to the trial court, or brief on
appeal to this Court, detailing the nature and extent
of counsel’s diligent review of the case, listing the
issues which 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.

....

Where counsel submits a petition
and no[-]merit letter that . . . satisfy the
technical demands of Turner/Finley, the
court—trial court or this Court—must
then conduct its own review of the merits
of the case. If the court agrees with

-4-
J. S58003/17

counsel that the claims are without
merit, the court will permit counsel to
withdraw and deny relief.

Id. at 510-511 (some bracketed internal citations amended; case citations

omitted).

Herein, we find that PCRA counsel’s initial filing with this court, while

couched as a brief pursuant to Anders v. California, 386 U.S. 738 (1967),

complied with the requirements of Turner/Finley. See Commonwealth v.

Fusselman, 866 A.2d 1109, 1111 n.3 (Pa.Super. 2004) (holding that

although “[a] Turner/Finley no[-]merit letter is the appropriate filing [in a

PCRA proceeding,] . . . because an Anders brief provides greater protection

to the defendant, we may accept an Anders brief in lieu of a Turner/Finley

letter”), appeal denied, 882 A.2d 477 (Pa. 2005).

Specifically, counsel’s initial “no-merit” letter detailed the nature and

extent of counsel’s review. In preparing the “no-merit” letter, counsel

addressed the issues appellant raised in his PCRA petition and determined

that they lack merit. Thereafter, counsel provided a discussion of appellant’s

claims, explaining why each issue is without merit. Finally, the record

reflects that counsel served appellant with a copy of the “no-merit” letter

and advised appellant, pursuant to this court’s June 12, 2017 directive, of

his right to proceed pro se or with the assistance of privately retained

counsel. See per curiam order, 6/12/17 (directing PCRA counsel to comply

with the procedure outlined in Commonwealth v. Widgins, 29 A.3d 816,

-5-
J. S58003/17

818 (Pa.Super. 2011), and notify appellant within 14 days of his right to

proceed pro se or with the assistance of privately retained counsel). PCRA

counsel’s subsequent filing with this court indicates that he obtained and

reviewed the January 19, 2017 hearing transcript, as directed, and

concluded that there are no additional issues he could raise on appellant’s

behalf. (See “No-Merit” letter, 2/21/18 at 1.) Thus, we find that counsel’s

request for leave to withdraw from representation satisfies the requirements

of Turner/Finley. See Commonwealth v. Karanicolas, 836 A.2d 940,

947 (Pa.Super. 2003) (stating that substantial compliance with requirements

will satisfy the Turner/Finley criteria). We must now conduct our own

review of the record and render a decision as to whether the appeal is

without merit.

Proper appellate review of a PCRA court’s dismissal of a PCRA petition

is limited to the examination of “whether the PCRA court’s determination is

supported by the record and free of legal error.” Commonwealth v. Miller,

102 A.3d 988, 992 (Pa.Super. 2014) (citation omitted). “This Court grants

great deference to the findings of the PCRA court, and we will not disturb

those findings merely because the record could support a contrary holding.”

Commonwealth v. Patterson, 143 A.3d 394, 397 (Pa.Super. 2016)

(citation omitted). In order to be eligible for PCRA relief, a defendant must

plead and prove by a preponderance of the evidence that his conviction or

sentence arose from one or more of the errors listed at 42 Pa.C.S.A.

-6-
J. S58003/17

§ 9543(a)(2). Further, these issues must be neither previously litigated nor

waived. 42 Pa.C.S.A. § 9543(a)(3).

To prevail on a claim of ineffective assistance of counsel under the

PCRA, a petitioner must plead and prove by a preponderance of the evidence

that counsel’s ineffectiveness “so undermined the truth-determining process

that no reliable adjudication of guilt or innocence could have taken place.”

42 Pa.C.S.A. § 9543(a)(2)(ii). Specifically, a petitioner must establish the

following three factors: “first[,] the underlying claim has arguable merit;

second, that counsel had no reasonable basis for his action or inaction; and

third, that Appellant was prejudiced.” Commonwealth v. Charleston, 94

A.3d 1012, 1020 (Pa.Super. 2014), appeal denied, 104 A.3d 523 (Pa.

2014) (citation omitted). “[C]ounsel is presumed to be effective and the

burden of demonstrating ineffectiveness rests on appellant.”

Commonwealth v. Ousley, 21 A.3d 1238, 1242 (Pa.Super. 2011), appeal

denied, 30 A.3d 487 (Pa. 2011) (citation omitted). Additionally, counsel

cannot be found ineffective for failing to raise a claim that is devoid of merit.

Commonwealth v. Ligons, 971 A.2d 1125, 1146 (Pa. 2009).

Appellant first argues that trial counsel was ineffective in failing to

provide him with a discovery packet until two weeks prior to trial, which

“prevented [appellant] from adequately preparing for his trial.”

(Turner/Finley brief at 6.) We disagree.

-7-
J. S58003/17

Instantly, the PCRA court concluded that appellant was not prejudiced

by trial counsel’s purported inaction in this regard. As the PCRA court noted

in its opinion, appellant presented virtually no evidence as to what he would

have specifically done with the discovery had he received it earlier, and the

PCRA court found that trial counsel was precluded from discussing the case

with appellant because he refused to cooperate with trial counsel and

effectively “shut down.” (See PCRA court opinion, 2/2/17 at 3.) This court

has long recognized that “[a] petitioner establishes prejudice when he

demonstrates that there is a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been

different.” Commonwealth v. Johnson, 966 A.2d 523, 533 (Pa. 2009)

(citations and internal quotation marks omitted). Appellant has clearly failed

to satisfy this burden in this instance.

Appellant next argues that trial counsel was ineffective by virtue of the

fact that she had a conflict of interest in this case because she had

previously represented witness James Myers, who testified on behalf of the

Commonwealth at trial. (Turner/Finley brief at 6-7). We disagree.

It is well settled that “[a] defendant cannot prevail on a conflict of

interest claim absent a showing of actual prejudice.” Commonwealth v.

Spotz, 896 A.2d 1191, 1231 (Pa. 2006); see also Commonwealth v.

Hawkins, 787 A.2d 292, 297 (Pa. 2001) (requiring a post-conviction

petitioner to demonstrate that counsel’s prior representation of a

-8-
J. S58003/17

Commonwealth witness adversely affected counsel’s representation of the

petitioner).

Our review of the record in this matter demonstrates that appellant

suffered no discernable prejudice as a result of this purported conflict.

Notably, appellant has failed to demonstrate that trial counsel was actively

representing conflicting interests. Similar to Spotz and Hawkins, this was

not a circumstance involving dual representation; rather, any representation

by trial counsel of Myers had terminated prior to trial counsel’s

representation of appellant. Additionally, appellant has failed to

demonstrate how her prior representation of Myers adversely affected trial

counsel’s representation of appellant in this matter. This is especially true in

light of the fact that during her closing argument, trial counsel actually

attempted to implicate Myers as the individual who had slashed the victim’s

neck. (See notes of testimony, 2/9/15 at 185-186.) Accordingly, there is

no merit to appellant’s ineffectiveness claim related to the purported conflict

of interest. See Spotz, 896 A.2d at 1232 (rejecting a claim based on

counsel’s representation of an individual which terminated before the

appointment to represent the petitioner, because he offered nothing more

than bald assertions, with no evidence to suggest that counsel’s conduct was

due to the alleged conflict of interest).

Appellant next argues that trial counsel was ineffective in failing to

object to his being sentenced pursuant to the deadly weapon enhancement

-9-
J. S58003/17

on the basis that the jury acquitted him of PIC. (Turner/Finley brief at

7-8.) This claim is meritless.

In Commonwealth v. Moore, 103 A.3d 1240 (Pa. 2014), our

supreme court explained that:

Federal and Pennsylvania courts alike have long
recognized that jury acquittals may not be
interpreted as specific factual findings with
regard to the evidence, as an acquittal does not
definitively establish that the jury was not
convinced of a defendant’s guilt. Rather, it has
been the understanding of federal courts as well as
the courts of this Commonwealth that an acquittal
may merely show lenity on the jury’s behalf, or that
the verdict may have been the result of compromise,
or of a mistake on the part of the jury. Accordingly,
the United States Supreme Court has instructed that
courts may not make factual findings regarding jury
acquittals and, thus, cannot upset verdicts by
speculation or inquiry into such matters.

Id. at 1246 (citations and internal quotation marks omitted; emphasis

added).

Moreover, we conclude that the imposition of the deadly weapon

enhancement was entirely warranted in this matter. On direct appeal, a

panel of this court found that there was sufficient evidence to sustain

appellant’s conviction for aggravated assault after appellant sliced the

victim’s neck with a razor blade. See Colon, 134 A.3d 500 (unpublished

memorandum at 5, citing notes of testimony, 2/9/15 at 33-37). Based on

the foregoing principles, we find that appellant’s challenge to the imposition

of the deadly weapon enhancement during sentencing lacks arguable merit,

- 10 -
J. S58003/17

and trial counsel cannot be found ineffective for failing to raise a meritless

claim. See Ligons, 971 A.2d at 1146.

Lastly, we conclude that there is no underlying merit to appellant’s

contention that the razor blade found on his person should have been

suppressed, and thus, trial counsel cannot be found ineffective for failing to

pursue this meritless claim. (See Turner/Finley brief at 7-8.)

“The Fourth Amendment to the [United States] Constitution and

Article I, Section 8 of [the Pennsylvania] Constitution protect citizens from

unreasonable searches and seizures.” Commonwealth v. McAdoo, 46

A.3d 781, 784 (Pa.Super. 2012), appeal denied, 65 A.3d 413 (Pa. 2013).

“A search conducted without a warrant is deemed to be unreasonable and

therefore constitutionally impermissible, unless an established exception

applies.” Commonwealth v. Strickler, 757 A.2d 884, 888 (Pa. 2000).

“Exceptions to the warrant requirement include the consent exception, the

plain view exception, the inventory search exception, the exigent

circumstances exception, the automobile exception . . ., the stop and frisk

exception, and the search incident to arrest exception.”

Commonwealth v. Dunnavant, 63 A.3d 1252, 1257 n.3 (Pa.Super. 2013)

(emphasis added), affirmed by an equally divided court, 107 A.3d 29

(Pa. 2014).

Instantly, our review of the record in this matter reveals that the razor

blade in question was found on appellant’s person following a lawful search

- 11 -
J. S58003/17

incident to arrest. (See notes of testimony, 2/9/15 at 164-167.) As a panel

of this court recently explained in Commonwealth v. Simonson, 148 A.3d

792, 799 (Pa.Super. 2016), appeal denied, 2017 WL 1194890 (Pa. 2017),

The search incident to arrest exception allows
arresting officers, in order to prevent the arrestee
from obtaining a weapon or destroying evidence, [to]
search both the person arrested and the area within
his immediate control. Moreover, in contrast to the
exigent circumstances exception, the search incident
to arrest exception applies categorically. In other
words, the search incident to arrest exception
permits a search of the arrestee’s person as a matter
of course—and without a case-by-case adjudication
. . . [of] whether a search of a particular arrestee is
likely to protect officer safety or evidence.

Id. at 799 (citations and internal quotation marks omitted). Based on the

foregoing, we conclude that appellant’s underlying suppression claim lacks

arguable merit, and trial counsel cannot be found ineffective for failing to

raise a meritless claim. See Ligons, 971 A.2d at 1146.

Accordingly, we affirm the February 2, 2017 order of the PCRA court

and grant PCRA counsel’s petition for leave to withdraw as counsel.

Order affirmed. Petition for leave to withdraw as counsel granted.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 4/16/2018

- 12 -