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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JEREMIE ALAN BAKER :
:
Appellant : No. 1857 MDA 2017
Appeal from the PCRA Order October 6, 2017
In the Court of Common Pleas of Adams County Criminal Division at
No(s): CP-01-CR-0000538-2014
BEFORE: STABILE, J., MURRAY, J., and MUSMANNO, J.
MEMORANDUM BY MURRAY, J.: FILED SEPTEMBER 21, 2018
Jeremie Alan Baker (Appellant) appeals from the order denying his
petition filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A.
§§ 9541-9546. In this appeal, Appellant’s court-appointed counsel filed a
petition to withdraw as counsel and a no-merit letter pursuant to
Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and Commonwealth
v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc). As we conclude that
counsel fulfilled the procedural requirements of Turner/Finley, and this
appeal is without merit, we grant counsel’s petition to withdraw and affirm the
PCRA court’s order denying Appellant’s PCRA petition.
The facts underlying this appeal stem from an incident that occurred
during the early morning hours of May 21, 2014, during which Appellant
entered the home of Sanjin and Rashmi Mohla and robbed them at gunpoint.
Appellant, who worked for Mr. and Mrs. Mohla, was aware that they regularly
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brought cash home at the end of each business day and kept it in their kitchen
or bedroom until Mrs. Mohla would deposit the funds at the bank the next day.
Following a jury trial, Appellant was convicted of one count each of burglary,
robbery, and criminal conspiracy to commit robbery,1 and sentenced to an
aggregate term of 11 to 22 years in prison. On October 21, 2016, this Court
affirmed the judgment of sentence. Commonwealth v. Baker, 2016 WL
6135377 (Pa. Super. Oct. 21, 2016) (unpublished memorandum).
On April 24, 2017, Appellant filed a pro se PCRA petition. Attorney
Jamison Entwistle was appointed as counsel and filed an amended petition.
On August 8, 2017, the PCRA court issued its notice of intent to dismiss
Appellant’s petition pursuant to Rule 907 of the Pennsylvania Rules of Criminal
Procedure. Appellant did not file a response, and, on October 10, 2017, the
PCRA court denied the petition. This timely appeal followed.
On appeal, this Court noted that although Appellant filed his appeal pro
se, there was no indication in the docket that his attorney had ever withdrawn
her appearance. Accordingly, this Court remanded the case to the PCRA court
to determine whether Appellant wished to proceed with current counsel or to
conduct a Grazier2 hearing if Appellant wished to proceed pro se. On
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1 18 Pa.C.S.A. §§ 3502(a)(1), 3701(a)(1)(ii), and 903(a)(1).
2 Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1988) (requiring on-the-
record inquiry to determine whether waiver of counsel is knowing, intelligent,
and voluntary).
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February 12, 2018, a hearing was held in which Appellant indicated his desire
to be represented by counsel.
On April 12, 2018, Attorney Entwistle filed a petition to withdraw with
this Court, attaching her Turner/Finley no-merit letter, with notice to
Appellant that he had the right to proceed pro se or retain private counsel.
Appellant filed an application for relief and a pro se response to the
Turner/Finley letter on May 8, 2018. Appellant then filed a second
application for relief on May 11, 2018.3
Counsel’s Turner/Finley no-merit letter raises two issues:
1. Whether the PCRA [c]ourt erred in dismissing without [a]
hearing Appellant’s PCRA [p]etition when he claims the
Commonwealth withheld discovery and violated his
constitutional rights under 42 Pa.C.S.A. § 9543(a)(2)(i)[?]
2. Whether the PCRA [c]ourt erred in dismissing Appellant’s PCRA
[petition] without [a] hearing when trial counsel was ineffective
in failing to obtain discovery, specifically a photographic line-
up, and trial counsel failed to advise Appellant on the existence
of, or the implications of the same prior to trial[?]
Turner/Finley Brief at 4, 7. Appellant filed a pro se “Brief in Opposition to
Jamison Entwistle, Esq. Motion to Withdraw as Counsel” in response to
Attorney Entwistle’s Turner/Finley no-merit letter.
In reviewing the denial of a PCRA petition, our review is limited to
examining whether the PCRA court’s findings are supported by the record and
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3 Appellant’s two applications for relief consisted of a motion to compel
discovery in which Appellant sought copies of transcripts and an application
for relief seeking discovery pursuant to Pa.R.Crim.P. 573(A). This Court
denied both applications for relief by order dated June 4, 2018.
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free of legal error. See Commonwealth v. Hanible, 30 A.3d 426, 438 (Pa.
2011). We view the findings of the PCRA court and the evidence of record in
the light most favorable to the prevailing party. Id. “The PCRA court’s
credibility determinations, when supported by the record, are binding on this
Court; however, we apply a de novo standard of review to the PCRA court’s
legal conclusions.” See Commonwealth v. Mason, 130 A.3d 601, 617 (Pa.
2015).
Before we may review the merits of Appellant’s claims, we must
determine if counsel has satisfied the requirements to be permitted to
withdraw from further representation. Pursuant to Turner/Finley, an
“[i]ndependent review of the record by competent counsel is required before
withdrawal [on collateral appeal] is permitted. Commonwealth v. Pitts, 981
A.2d 875, 876 n.1 (Pa. 2009). In Pitts, our Supreme Court explained that
such independent review requires proof of:
1. A “no merit” letter by PC[R]A counsel detailing the nature and
extent of his review;
2. The “no merit” letter by PC[R]A counsel listing each issue the
petitioner wished to have reviewed;
3. The PC[R]A counsel’s “explanation”, in the “no merit” letter, of
why the petitioner’s issues were meritless;
4. The PC[R]A court conducting its own independent review of the
record; and
5. The PC[R]A court agreeing with counsel that the petition was
meritless.
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Id. (citation and brackets omitted). Further, PCRA counsel seeking to
withdraw in this Court must contemporaneously forward to the petitioner a
copy of the petition to withdraw that includes (i) a copy of both the no-merit
letter, and (ii) a statement advising the PCRA petitioner that, upon the filing
of counsel’s petition to withdraw, the petitioner has the immediate right to
proceed pro se, or with the assistance of privately retained counsel.
Commonwealth v. Muzzy, 141 A.3d 509, 511-12 (Pa. Super. 2016).
[W]here counsel submits a petition and no-merit letter that do
satisfy the technical demands of Turner/Finley, . . . this Court[
] must then conduct its own review of the merits of the case. If
the [C]ourt agrees with counsel that the claims are without merit,
the [C]ourt will permit counsel to withdraw and deny relief. By
contrast, if the claims appear to have merit, the [C]ourt will deny
counsel’s request and grant relief, or at least instruct counsel to
file an advocate’s brief.
Commonwealth v. Wrecks, 931 A.2d 717, 721 (Pa. Super. 2007) (citation
omitted).
Here, in the Turner/Finley no-merit letter, Attorney Entwistle
described the extent of her review, identified the issues that Appellant sought
to raise, and explained why the issues lacked merit. In addition, Attorney
Entwistle has indicated that she provided Appellant with a notice of her
intention to seek permission to withdraw from representation, a copy of the
Turner/Finley no-merit letter, and advised Appellant of his rights in lieu of
representation. Motion to Withdraw as Counsel, 4/12/18, at 1-3 (unnumbered
pages). Thus, we conclude that Attorney Entwistle has substantially complied
with the requirements necessary to withdraw as counsel. See
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Commonwealth v. Karanicolas, 836 A.2d 940, 947 (Pa. Super. 2003)
(holding that substantial compliance with requirements to withdraw as counsel
will satisfy the Turner/Finley criteria). We now independently review
Appellant’s claims to ascertain whether they entitle him to relief.
In Appellant’s first issue, as raised in the Turner/Finley no-merit letter,
he asserts that the PCRA court erred in dismissing his petition where the
Commonwealth violated its obligations under Brady v. Maryland, 373 U.S.
83 (1963). In Brady, the United States Supreme Court held that “the
suppression by the prosecution of evidence favorable to an accused upon
request violates due process where the evidence is material either to guilt or
to punishment, irrespective of the good faith or bad faith of the prosecution.”
Id. at 87. Our Supreme Court has held that “[t]o prove a Brady violation,
the defendant must show that (1) the prosecutor has suppressed evidence;
(2) the evidence whether exculpatory or impeaching, is helpful to the
defendant; and (3) the suppression prejudiced the defendant.”
Commonwealth v. Busanet, 54 A.3d 35, 48 (Pa. 2012) (citing
Commonwealth v. Pagan, 954 A.2d 270, 291 (Pa. 2008)). Finally, we note
that “[t]here is no Brady violation when the appellant knew, or with
reasonable diligence, could have uncovered the evidence in question.”
Commonwealth v. Paddy, 15 A.3d 431, 451 (Pa. 2011).
The primary thrust of Appellant’s Brady claim concerns a photographic
lineup allegedly withheld that would have induced Appellant to enter into a
plea agreement. Turner/Finley letter, 4/12/18, at 6. Appellant avers that
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“his decision to take the matter to trial was made without full knowledge and
understanding of the evidence against him (i.e. the photographic line-up).”
Id.
The PCRA court concluded that Appellant’s claim did not entitle him to
relief because Appellant’s claim is refuted by the record. Specifically, the PCRA
court noted that the existence of the photographic lineup “is identified in the
affidavit of probable cause supporting the criminal complaint and the affidavit
of probable cause supporting the search warrant[,] . . . both of which were
served on the [Appellant]. PCRA Court Opinion, 8/9/17, at 2. Specifically,
the affidavit of probable cause states:
A photo line up [sic] was prepared by FSU member Tpr. Michael
WEAVER prior to my arrival at the MOHLA’D residence. A lineup
was prepared with a photo of the [Appellant] along with additional
photo’s [sic] of individuals of the accused’s likeness. Upon viewing
the line up [sic] containing [Appellant], Rashmi immediately
picked out the [Appellant’s] photograph and stated that he was
the man who broke in to [sic] her residence with the other suspect
and was in the bedroom with her during the robbery.
Affidavit of Probable Cause, 11/7/14, at 2.
Moreover, the PCRA court emphasized in its opinion that the
photographic lineup had little, if any, impact on Appellant’s prosecution. PCRA
Court Opinion, 8/9/17, at 2. Notably, the PCRA court noted that the victims
were personally familiar with Appellant, had the opportunity to observe
Appellant at the time of the incident, and identified him by name to the
investigating officers prior to any photographic lineup being conducted. Id.
Accordingly, the PCRA court concluded that Appellant’s knowledge of the
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photographic lineup would not have impacted his “decision making process
more than the known information that the victim[s] personally knew him and
identified him by name prior to the lineup . . . .” Id. at 3.
We agree with Attorney Entwistle and the PCRA court that Appellant’s
claim is meritless. Appellant had knowledge of the photographic lineup as it
was referenced in several pleadings, all of which were served on the Appellant.
Moreover, the victims personally identified Appellant by name prior to a
photographic lineup being conducted. Appellant does not allege that the
photographic lineup resulted in an unlawful conviction or that trial counsel was
ineffective for failing to file a motion to suppress the photographic lineup.
Rather, his only claim is that the Commonwealth failed to inform him of the
existence of the photographic lineup. As the record clearly refutes Appellant’s
claim, we conclude that the PCRA court did not err in denying it.
In Appellant’s second issue, as raised in the Turner/Finley no-merit
letter, he contends that the PCRA court erred in dismissing his case without a
hearing when trial counsel was ineffective for failing to obtain the photographic
lineup.
In deciding ineffective assistance of counsel claims, we begin with the
presumption that counsel rendered effective assistance. Commonwealth v.
Bomar, 104 A.3d 1179, 1188 (Pa. 2014). To overcome that presumption,
the petitioner must establish: “(1) the underlying claim has arguable merit;
(2) no reasonable basis existed for counsel’s action or failure to act; and (3)
the petitioner suffered prejudice as a result of counsel’s error, with prejudice
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measured by whether there is a reasonable probability that the result of the
proceeding would have been different.” Id. (citation omitted). To
demonstrate prejudice in an ineffective assistance of counsel claim, “the
petitioner must show that there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been
different.” Commonwealth v. King, 57 A.3d 607, 613 (Pa. 2012). If the
petitioner fails to prove any of these prongs, the claim is subject to dismissal.
Bomar, 104 A.3d at 1188.
With respect to the dismissal of a PCRA petition without a hearing, this
Court has explained:
[T]he right to an evidentiary hearing on a post-conviction petition
is not absolute. It is within the PCRA court’s discretion to decline
to hold a hearing if the petitioner’s claim is patently frivolous and
has no support either in the record or other evidence. It is the
responsibility of the reviewing court on appeal to examine each
issue raised in the PCRA petition in light of the record certified
before it in order to determine if the PCRA court erred in its
determination that there were no genuine issues of material fact
in controversy and in denying relief without conducting an
evidentiary hearing.
Commonwealth v. Walls, 993 A.2d 289, 295 (Pa. Super. 2010) (internal
citations and brackets omitted). If the PCRA court “can determine without an
evidentiary hearing that one of the prongs cannot be met, then no purpose
would be advanced by holding an evidentiary hearing.” Commonwealth v.
Jones, 942 A.2d 903, 906 (Pa. Super. 2008).
Here, Appellant argues that an evidentiary hearing was necessary for
him to present evidence to prove that trial counsel was ineffective for failing
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to secure a copy of the photographic lineup prior to trial. As discussed above,
the evidence Appellant would have presented in support of this claim would
be directly contradicted by the fact that he was served a copy of the affidavits
of probable cause and by the fact that the victims personally knew Appellant.
Thus, an evidentiary hearing would not have provided Appellant with an
avenue for relief. As there was no genuine issue of material fact in
controversy, no purpose would have been served by holding a hearing.
Accordingly, the PCRA court did not err in denying Appellant’s petition without
a hearing.
We now turn to the additional issue raised by Appellant in his pro se
response to the Turner/Finley no-merit letter. Appellant claims that the trial
court erred when it failed to give a Kloiber4 instruction. A Kloiber charge is
appropriate where there are special identification concerns, i.e., a witness did
not have the opportunity to clearly view the defendant or had difficulty making
an identification in the past. Commonwealth v. Rollins, 738 A.2d 435, 448
n. 14 (Pa. 1999); Commonwealth v. Gibson, 688 A.2d 1152, 1163 (Pa.
1997). However, “[w]hen the witness already knows the defendant, this prior
familiarity creates an independent basis for the witness’s in-court
identification of the defendant and weakens ineffectiveness claims based on
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4 Commonwealth v. Kloiber, 106 A.2d 820 (Pa. 1954).
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counsel [sic] failure to seek a Kloiber instruction.” Commonwealth v. Ali,
10 A.3d 282, 303 (Pa. 2010) (citations omitted).
Here, Appellant did not raise any Kloiber challenge in his initial PCRA
petition. Likewise, in his Supplemental PCRA petition, Appellant restated his
claim of trial court error and ineffective assistance of counsel as it relates to
the photographic lineup. Appellant did not file an amended petition or present
any specific allegations of trial court error for failing to issue a Kloiber
instruction before the PCRA court. Thus, because Appellant failed to raise any
claim related to the trial court’s failure to issue a Kloiber instruction in his
initial PCRA petition or his Supplemental PCRA petition, his claim on appeal is
waived. See Commonwealth v. Santiago, 855 A.2d 682, 691 (Pa. 2004)
(stating that “a claim not raised in a PCRA petition cannot be raised for the
first time on appeal.”); see also Commonwealth v. Washington, 927 A.2d
586, 601 (Pa. 2007) (stating that “[a]ny claim not raised in the PCRA petition
is waived and not cognizable on appeal.”). Moreover, even if Appellant did
not waive this claim there is no dispute that the victims already knew
Appellant, creating an independent basis for their identification of Appellant.
See Ali, 10 A.3d at 303.
Based on the foregoing, the PCRA court properly dismissed Appellant’s
PCRA petition.
Petition to withdraw granted. Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date:09/21/2018
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