J-S53012-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
v. :
:
TAHEEM ARMSTRONG :
:
Appellant :
: No. 2010 EDA 2017
Appeal from the PCRA Order June 23, 2017
in the Court of Common Pleas of Philadelphia County
Criminal Division at No.: CP-51-CR-0006892-2012
BEFORE: GANTMAN, P.J., OTT, J., and PLATT*, J.
MEMORANDUM BY PLATT, J.: FILED NOVEMBER 29, 2018
Appellant, Taheem Armstrong, appeals from the order dismissing his
first petition filed pursuant to the Post Conviction Relief Act (PCRA), 42
Pa.C.S.A. §§ 9541-9546. Counsel for Appellant has filed a motion to withdraw
from representation and an Anders1 brief. We grant counsel’s petition to
withdraw, and affirm the order of the PCRA court.
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1 Counsel filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967),
instead of a Turner/Finley no-merit letter, which is the appropriate filing in
the PCRA context. See Commonwealth v. Turner, 544 A.2d 927 (Pa.
1988); Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en
banc). However, “[b]ecause an Anders brief provides greater protection to a
defendant, this Court may accept an Anders brief in lieu of a Turner/Finley
letter.” Commonwealth v. Widgins, 29 A.3d 816, 817 n.2 (Pa. Super.
2011) (citation omitted).
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* Retired Senior Judge assigned to the Superior Court.
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We take the following factual and procedural history from our review of
the certified record and the PCRA court’s December 15, 2017 opinion. On
June 25, 2014, Appellant pleaded guilty to possession of a firearm by a
prohibited person and carrying a firearm on public streets in Philadelphia. 2 On
July 9, 2014, the trial court sentenced him to an aggregate term of not less
than eleven and one-half nor more than twenty-three months of incarceration
followed by five years’ probation.
On September 4, 2014, Appellant was arrested for selling crack cocaine.
(See Docket CP-51-CR-0010713-2014). A preliminary hearing was conducted
on September 19, 2014. (See id.). On October 3, 2014, the court held a
violation of probation hearing in this matter, and found that Appellant was in
violation of his probation based on the September 4, 2014 arrest. Appellant
was sentenced to not less than five nor more than ten years of imprisonment.
He did not file a direct appeal.
On June 26, 2015, Appellant filed a timely pro se PCRA petition.
Appointed counsel filed an amended petition on April 29, 2016. The PCRA
court gave notice of its intent to dismiss on May 9, 2017, and dismissed the
petition on June 23, 2017. See Pa.R.Crim.P. 907(1). This timely appeal
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2 18 Pa.C.S.A. §§ 6105(a)(1) and 6108, respectively.
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followed.3 Counsel filed a motion to withdraw from representation and an
Anders brief on April 11, 2018.
Counsel petitioning to withdraw from PCRA representation
must proceed . . . under Turner, supra and Finley, supra 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 counsel that the claims
are without merit, the court will permit counsel to withdraw and
deny relief.
Commonwealth v. Walters, 135 A.3d 589, 591 (Pa. Super. 2016) (citation
omitted).
Upon our review of counsel’s motion to withdraw and the Anders brief,
we conclude that counsel has substantially complied with the procedural
requirements of Turner and Finley. Therefore, we must proceed with our
independent review of this case. See Walters, supra at 591.
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3Appellant filed a statement of matters complained of on appeal on July 16,
2017. The PCRA court entered its opinion on December 15, 2017. See
Pa.R.A.P. 1925.
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The Anders brief argues that no Gagnon I4 hearing was held, and that
counsel was ineffective for failing to raise the issue at trial and on appeal.
(See Anders Brief, at 10-11). We disagree.
Our standard of review of the denial of a PCRA petition is
limited to examining whether the record evidence supports the
court’s determination and whether the court’s decision is free of
legal error. This Court grants great deference to the findings of
the PCRA court if the record contains any support for those
findings. If the record supports a post-conviction court’s
credibility determination, it is binding on the appellate court. A
PCRA court’s legal conclusions, however, are reviewed de novo.
Commonwealth v. Moriarty, 180 A.3d 1279, 1284 (Pa. Super. 2018)
(citations and quotation marks omitted).
The United States Supreme Court held in Morrissey v.
Brewer, 408 U.S. 471 (1972), that a parolee is entitled to
minimum due process protections because of the possible
deprivation of liberty inherent in parole revocation proceedings.
Id. at 482; see also, Gagnon v. Scarpelli, 411 U.S. 778 (1973)
(extending the Morrissey holding to probation revocation
proceedings). When a parolee or probationer is detained pending
a revocation hearing, due process requires a determination at a
pre-revocation hearing, a Gagnon I hearing, that probable cause
exists to believe that a violation has been committed. Where a
finding of probable cause is made, a second, more comprehensive
hearing, a Gagnon II hearing, is required before a final
revocation decision can be made.
This Court described this parole and probation revocation
process in Commonwealth v. Davis, 336 A.2d 616 (Pa. Super.
1975), stating:
“At the preliminary [Gagnon I] hearing, a
probationer or parolee is entitled to notice of the
alleged violations of probation or parole, an
opportunity to appear and to present evidence in his
own behalf, a conditional right to confront adverse
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4 Gagnon v. Scarpelli, 411 U.S. 778, 786 (1973).
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witnesses, an independent decisionmaker, and a
written report of the hearing.” Gagnon v. Scarpelli,
supra, at 786. Thus, the Gagnon I hearing is similar
to the preliminary hearing afforded all offenders
before a Common Pleas Court trial: the
Commonwealth must show probable cause that the
violation was committed.
Commonwealth v. Ferguson, 761 A.2d 613, 617 (Pa. Super. 2000) (citation
formatting provided; some citations omitted).
In Davis, supra, this Court further explained that Gagnon I hearings
are not required in cases in which “a probationer, who before the probation
revocation hearing, has been arrested and after a preliminary hearing . . . has
been held for indictment and trial in the Court of Common Pleas.” Davis,
supra at 622. The Davis Court explained that in such cases, “[t]he purpose
of [the Gagnon I] hearing will have been served by the preliminary hearing.”
Id. at 622-23; see also Commonwealth v. Del Conte, 419 A.2d 780, 781
n.2 (Pa. Super. 1980) (“When the probation or parole violation is based on
the commission of a crime, a preliminary hearing may substitute for a Gagnon
I hearing.”) (citations omitted).
Here, after Appellant was arrested, a preliminary hearing was conducted
and Appellant was held for court. The PCRA court found that Appellant “was
given sufficient notice of the alleged violations by virtue of his arrest and
preliminary proceedings on the underlying criminal charges. Therefore, the
purpose of the Gagnon I hearing was clearly served.” (PCRA Ct. Op., at 6).
Thus, it concluded that Appellant’s claim was without merit, and “counsel
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cannot be deemed ineffective for failing to raise a meritless claim.” (Id. at 7)
(citation omitted).
Upon review, we conclude that the record fully supports the PCRA court’s
conclusion. Because Appellant’s violation of probation was based on his
commission of a crime, the preliminary hearing conducted in that matter may
substitute for a Gagnon I hearing. See Del Conte, supra at 781 n.2; Davis,
supra at 623. Appellant is not entitled to PCRA relief. Accordingly, we affirm
the order of the PCRA court.
Petition to withdraw granted. Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/29/18
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