Com. v. Custis, L.

J-S14025-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
LAWRENCE CUSTIS :
:
Appellant : No. 1565 EDA 2018

Appeal from the PCRA Order May 11, 2018
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0008834-2013

BEFORE: LAZARUS, J., NICHOLS, J., and PELLEGRINI, J.*

MEMORANDUM BY NICHOLS, J.: FILED MAY 06, 2019

Appellant Lawrence Custis appeals pro se from the order denying his

timely first petition under the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§

9541-9546. Appellant claims trial counsel was ineffective for failing to

challenge the weight of the evidence, failing to request a Kloiber1 instruction,

and stipulating to the qualifications of an interpreter at trial. Appellant also

raises claims of error related to PCRA counsel’s withdrawal and the PCRA

court’s issuance of notice pursuant to Pa.R.Crim.P. 907. We affirm.

The PCRA court set forth the relevant facts of this appeal as follows:

On the afternoon of January 9, 2012, [Appellant] was seen
walking down the 1500 block of Lindenwood Street, located in
southwest Philadelphia. There, [Appellant] had a brief
conversation with Shantel Hill outside of her home at 1543 South
____________________________________________

* Retired Senior Judge assigned to the Superior Court.

1 Commonwealth v. Kloiber, 106 A.2d 820 (Pa. 1954).
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Lindenwood Street. Afterward, as Ms. Hill walked towards her
home, she heard three gunshots. She turned and saw [Will Street
(Decedent)] fall to the ground between two vehicles. She then
saw [Appellant] walk between the two vehicles and behind
[D]ecedent before he walked away towards Woodland Avenue.

Kevin Johnson, [D]ecedent’s first cousin, was inside his home at
1522 South Lindenwood Street when he heard the gunshots. Mr.
Johnson ran to his front door and observed several people running
around the crime scene. He also heard a female’s voice, believed
to be Ms. Hill, yell “It’s Will.” Mr. Johnson got dressed and ran
outside, where he heard a male’s voice shout, “He’s gone, he’s
gone.” Mr. Johnson then ran down the street and saw [D]ecedent
lying on the ground, half of his body on the sidewalk and the other
half in the street behind a van. Mr. Johnson repeatedly yelled
[D]ecedent’s name and held onto [Decedent]’s bloodied body.
After Mr. Johnson’s girlfriend pulled him away from [D]ecedent’s
body, police officers drove up and detained him for questioning.
Upon arrival, the officers observed [D]ecedent lying face down on
the ground between two vehicles, bleeding profusely from multiple
gunshot wounds. Paramedics arrived and transported [D]ecedent
to the hospital where he was pronounced dead.

In April of 2012, three months after the shooting, Daniel Scott
gave a statement to detectives. He stated that on January 9,
2012, immediately after the shooting, he saw [Appellant] with a
gun in his hand wearing a grey jacket with stripes on the sleeves.
Mr. Scott then observed [Appellant] place the gun in his pants,
adjust his jacket and walk westbound on Woodland and
southbound on 53rd Street (in the direction of Ruby Street).
Shortly after the shooting, Gerald Harvey, who knew both
[Appellant] and [D]ecedent from the neighborhood, observed
[Appellant] on Ruby Street, approximately a block and a half from
the crime scene. Mr. Harvey approached [Appellant], who was
wearing a grey jacket, and asked him “Why did you kill that boy?”
referring to [D]ecedent. [Appellant] began crying and eventually
stated that [D]ecedent’s brother, Wayne, provided him with some
bad pills but he was unable to get to him. Appellant then stated,
“I just shot him.”

Police officers obtained internal and external video footage from a
grocery store located at 5207 Woodland [Avenue], on the
northwest corner of Lindenwood and Woodland [Avenue], which
depicted the front of the store and the 1500 block of Lindenwood.

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The video footage showed [Appellant] walking southbound on
Lindenwood Street away from the crime scene immediately after
the shooting, and just twenty-five (25) seconds before the first
911 call.

Residents of the 1500 block of Lindenwood Street testified that
approximately three weeks prior to the murder, they observed
[Appellant] initiate a verbal confrontation with [D]ecedent. While
[D]ecedent and [Appellant] were arguing, Michael Gough
observed [Appellant] holding a firearm near his leg and heard
[D]ecedent tell [Appellant] to calm down. Kevin Johnson testified
that during the altercation, he heard [Appellant] state to
[D]ecedent, “I’m getting tired of this . . . . I should have shot you
last month.” That verbal confrontation did not escalate to physical
violence because one of [D]ecedent’s family members stepped in
between the two men and pushed them away from each other.

PCRA Ct. Op., 8/17/18, at 2-3 (quoting Trial Ct. Op., 5/14/15, at 2-4) (record

citations, brackets, and some quotation marks omitted).

At trial, the Commonwealth presented Ms. Hill, who testified that she

heard gunshots while standing outside her residence on Lindenwood Street.

Ms. Hill turned around and saw Decedent on the ground and Appellant walking

toward Woodland Avenue. Ms. Hill did not see anyone else near Decedent.

On cross-examination, trial counsel questioned Ms. Hill about her testimony

at Appellant’s preliminary hearing. Ms. Hill acknowledged that at the

preliminary hearing, she stated that she “had not seen anything regarding the

shooting” and “only heard” about what happened to Decedent. N.T. Trial,

11/4/14, at 139. Ms. Hill explained that she “just wanted to get out of there”

when she was testifying at the preliminary hearing. Id. at 145.

The Commonwealth also presented Mr. Harvey, who testified that

Appellant told him he shot Decedent over “some bad pills.” Id. at 163. On

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cross-examination, Mr. Harvey confirmed that police questioned him about his

interactions with Appellant. Mr. Harvey testified that that the police kept him

at the station for thirty-six hours during his interview. Id. at 166-70.

The Commonwealth also called Mr. Scott, who denied seeing Appellant

at the crime scene:

When the shooting started, I went on the ground. I heard two
shots. We hesitated, then more shots came. I ducked back down
again. We alls there. (sic) I hear people describe this guy. By
the time I get up off the ground, they say what he wearing.

N.T. Trial, 11/5/14, at 5-6. The Commonwealth then moved into evidence Mr.

Scott’s verbatim statement to police, which was reduced to writing, adopted

by him, and signed by him. In the statement, Mr. Scott said, “I heard two

gunshots coming from over there and I looked and saw the boy who did the

shooting with the gun in his hand. . . .” Id. at 10. Despite being confronted

with his prior statement, Mr. Scott reiterated that he did not see the shooting

or the shooter.

Following trial, a jury convicted Appellant of first-degree murder,

possessing instruments of crime, and carrying firearms on public streets in

Philadelphia.2 On November 7, 2014, the trial court sentenced Appellant to

an aggregate term of life imprisonment without parole. This Court affirmed

the judgment of sentence on May 4, 2016, and Appellant did not seek further

review with the Pennsylvania Supreme Court. Commonwealth v. Custis,

3223 EDA 2014 (Pa. Super. filed May 4, 2016) (unpublished mem.).
____________________________________________

2 18 Pa.C.S. §§ 2502(a), 907, and 6108, respectively.

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Appellant timely filed a pro se PCRA petition postmarked May 3, 2017.

The PCRA court appointed counsel, who filed a motion to withdraw and

Turner/Finley3 letter. On April 6, 2018, the court issued a Rule 907 notice

of its intent to dismiss Appellant’s petition without a hearing.

Appellant filed a pro se response to the Rule 907 notice on April 24,

2018. Appellant raised multiple issues, including claims of ineffective

assistance of all prior counsel for failing to challenge the weight of the

evidence, failing to request a Kloiber instruction, and stipulating to the

qualifications of an interpreter at trial. Appellant also argued that PCRA

counsel’s representation was deficient because he failed to challenge prior

counsels’ ineffectiveness on the aforementioned bases. Further, Appellant

asserted that PCRA counsel “merely conducted a cursory review based upon

the boilerplate petition without any motivation to do anything other than file

a no-merit letter in the capacity of an adversary rather than advocate.” Pro

Se Response, 4/24/18, at 33.

On May 11, 2018, the PCRA court dismissed Appellant’s PCRA petition

and permitted PCRA counsel to withdraw. Appellant timely filed a pro se notice

of appeal and court-ordered Pa.R.A.P. 1925(b) statement of errors complained

of on appeal. The PCRA court filed a responsive opinion, concluding

Appellant’s claims of ineffectiveness lacked arguable merit.

Appellant now raises seven questions for our review:
____________________________________________

3 Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).

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1. Did the PCRA court err when it failed to grant leave to amend
the PCRA petition in order to achieve substantial justice? And did
the PCRA court err when it failed to address the defects and state
the reasons for the notice to dismiss the PCRA petition without an
evidentiary hearing?

2. Was the PCRA court’s notice to dismiss inadequate because [the
court] failed to thoroughly review the PCRA petition, failed to
conduct an independent review of the record, and failed to address
the issues of material fact? And was [the court’s] notice lacking
without an analysis pursuant to [relevant case law]?

3. Was PCRA counsel . . . ineffective for failing to argue direct
appeal counsel’s . . . ineffective assistance and trial counsel’s . . .
ineffective assistance for all failing to argue a weight of the
evidence claim . . . ?

4. Was PCRA counsel ineffective for failing to argue direct appeal
counsel’s failure to argue trial counsel’s ineffective assistance for
failing to request a Kloiber instruction . . . ?

5. Did the PCRA court abuse its discretion for failing to schedule
an evidentiary hearing on the issue of trial counsel’s ineffective
assistance for stipulating to the uncertified sign language
interpreter? And was PCRA counsel ineffective for failing to litigate
this issue in an amended PCRA petition?

6. Was trial, direct appeal, and PCRA counsel ineffective for failing
to argue that the Commonwealth’s expenses for the crime lab user
fee used by the . . . state police was not part of the “costs” of
[Appellant’s] prosecution in the amount of $25,000? Did the lower
court [err] when it refused to provide a copy of the invoice
pertaining to this crime lab fee? Was this prejudicial to [Appellant]
being that he was in forma pauperis . . . ?

7. Should this Court grant [Appellant] a remand in order for
[Appellant] to amend the [Rule] 1925(b) statement when [the
PCRA court] disclosed facts in his [Rule] 1925(a) opinion that were
not disclosed prior to the opinion? And should the Superior Court
remand the certified record back to the Philadelphia County Court
of Common Pleas in order for the attorneys of record and the

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Commonwealth to provide [Appellant] with the entire discovery
file including the discovery provided to trial counsel?[4]

Appellant’s Brief at 10-11 (full capitalization omitted).

Appellant’s first two issues are related, and we address them together.

Appellant complains that the PCRA court’s Rule 907 notice “was nothing more

than a form,” indicating that the court intended to dismiss Appellant’s petition

based upon PCRA counsel’s Turner/Finley letter. Id. at 21. Appellant insists

that the PCRA court’s “wholesale adoption” of the Turner/Finley letter is

unacceptable, and the court should have provided its own independent

analysis regarding any defects in Appellant’s petition and its reasons for

dismissal. Id. Absent proper Rule 907 notice, Appellant maintains that he is

entitled to an evidentiary hearing and an opportunity to amend his petition.

Id.

Our review of the denial 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) (quotation marks and citation omitted). “The PCRA court’s

findings will not be disturbed unless there is no support for the findings in the

certified record.” Commonwealth v. Lawson, 90 A.3d 1, 4 (Pa. Super.

2014) (citation omitted). We review “the PCRA court’s legal conclusions de

novo.” See Miller, 102 A.3d at 992.
____________________________________________

4In the statement of questions presented, Appellant frames his final issue as
a request to amend his pro se Rule 1925(b) statement. Nevertheless, the
argument section in Appellant’s brief actually presents a challenge to PCRA
counsel’s stewardship. See Appellant’s Brief at 50-52.

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Pennsylvania Rule of Criminal Procedure 907 governs the disposition of

a PCRA petition without a hearing as follows:

Rule 907. Disposition Without Hearing

Except as provided in Rule 909 for death penalty cases,

(1) the judge shall promptly review the petition, any answer by
the attorney for the Commonwealth, and other matters of record
relating to the defendant’s claim(s). If the judge is satisfied from
this review that there are no genuine issues concerning any
material fact and that the defendant is not entitled to post-
conviction collateral relief, and no purpose would be served by any
further proceedings, the judge shall give notice to the parties of
the intention to dismiss the petition and shall state in the notice
the reasons for the dismissal. The defendant may respond to the
proposed dismissal within 20 days of the date of the notice. The
judge thereafter shall order the petition dismissed, grant leave to
file an amended petition, or direct that the proceedings continue.

Pa.R.Crim.P. 907(1).

“Rule 907 pre-dismissal notice affords a petitioner the opportunity to

seek leave to amend his petition and correct any material defects. The

ultimate goal of this process is to permit merit review by the PCRA court of

potentially arguable claims.” Commonwealth v. Weimer, 167 A.3d 78, 86

(Pa. Super. 2017) (citations omitted), appeal denied, 176 A.3d 838 (Pa.

2017). Nevertheless, a petitioner is not entitled to relief based on a PCRA

court’s failure to explain the reasons supporting its Rule 907 notice where the

court provides an opportunity to amend the pro se petition, grants the

petitioner leave to submit pro se supplements, and accepts filings submitted

on the petitioner’s behalf following the issuance of Rule 907 notice. See id.

(citing Commonwealth v. Albrecht, 720 A.2d 693, 709-10 (Pa. 1998)

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(stating that under Pa.R.Crim.P. 1507(a), the predecessor to Rule 907, there

was no defect in notice of intent to dismiss a PCRA petition without hearing

where the petitioner was afforded both further proceedings and the

opportunity to present arguments in support of his petition)).

Instantly, the PCRA court issued a Rule 907 notice, indicating that PCRA

counsel had determined that Appellant’s issues were meritless. The notice

also provided Appellant with the opportunity to file a pro se response within

twenty days. See Rule 907 Notice, 4/6/18, at 1. The notice included no

further explanation of the PCRA court’s reasons in support of dismissal.

Despite the PCRA court’s failure to provide a statement of reasons in support

of the issuance of Rule 907 notice, Appellant submitted a pro se response that

included multiple, layered ineffectiveness claims.

Under these circumstances, the PCRA court satisfied the requirements

of Rule 907 by providing Appellant with notice of its intent to dismiss, as well

as the opportunity to present additional arguments in support of the petition.

See Albrecht, 720 A.2d at 709-10; Weimer, 167 A.3d at 86; see also

Commonwealth v. Ousley, 21 A.3d 1238, 1246 (Pa. Super. 2011) (holding

the petitioner received sufficient Rule 907 notice where the notice stated that

PCRA court intended to dismiss the PCRA petition for the reasons discussed in

counsel’s “no-merit” letter). Therefore, the PCRA court did not commit legal

error and Appellant is not entitled to relief on his first two claims. See Miller,

102 A.3d at 992.

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In his third issue, Appellant contends his convictions are “based on pure

speculation and conjecture.” Appellant’s Brief at 25. Appellant alleges the

Commonwealth’s evidence was weak, because (1) Mr. Johnson provided

irrelevant “hearsay testimony” when he testified that Appellant said, “I should

have shot you last month” to Decedent; (2) Ms. Hill provided inconsistent

statements; (3) Mr. Harvey’s statement to police was coerced; and (4) Mr.

Scott did not actually identify Appellant as the shooter. Id. at 27-40.

Appellant insists trial counsel lacked a reasonable basis for failing to challenge

the weight of the evidence, PCRA counsel lacked a reasonable basis for failing

to develop this claim in an amended petition, and counsels’ inaction caused

him to suffer prejudice. Id. at 27-28. Appellant concludes trial counsel was

ineffective for failing to challenge the weight of the evidence. Id. at 24.

We presume that the petitioner’s counsel was effective.

Commonwealth v. Williams, 732 A.2d 1167, 1177 (Pa. 1999). To establish

a claim of ineffectiveness, a petitioner “must show, by a preponderance of the

evidence, ineffective assistance of counsel which, in the circumstances of the

particular case, so undermined the truth-determining process that no reliable

adjudication of guilt or innocence could have taken place.” Commonwealth

v. Turetsky, 925 A.2d 876, 880 (Pa. Super. 2007) (citation omitted). A

petitioner must establish (1) that the underlying claim has arguable merit; (2)

that counsel lacked a reasonable basis for his action or inaction; and (3) but

for the act or omission in question, the outcome of the proceedings would

have been different. Commonwealth v. Washington, 927 A.2d 586, 594

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(Pa. 2007). “A claim of ineffectiveness may be denied by a showing that the

petitioner’s evidence fails to meet any of these prongs.” Id. (citation omitted).

“The threshold inquiry in ineffectiveness claims is whether the

issue/argument/tactic which counsel has foregone and which forms the basis

for the assertion of ineffectiveness is of arguable merit[.] Counsel cannot be

found ineffective for failing to pursue a baseless or meritless claim.”

Commonwealth v. Smith, 167 A.3d 782, 788 (Pa. Super. 2017) (citations

and quotation marks omitted), appeal denied, 179 A.3d 6 (Pa. 2018).

The following principles apply to challenges to the weight of the

evidence:

A claim alleging the verdict was against the weight of the evidence
is addressed to the discretion of the trial court. Accordingly, an
appellate court reviews the exercise of the trial court’s discretion;
it does not answer for itself whether the verdict was against the
weight of the evidence. It is well settled that the [fact-finder] is
free to believe all, part, or none of the evidence and to determine
the credibility of the witnesses, and a new trial based on a weight
of the evidence claim is only warranted where the [fact-finder’s]
verdict is so contrary to the evidence that it shocks one’s sense of
justice. In determining whether this standard has been met,
appellate review is limited to whether the trial judge’s discretion
was properly exercised, and relief will only be granted where the
facts and inferences of record disclose a palpable abuse of
discretion.

Commonwealth v. Landis, 89 A.3d 694, 699 (Pa. Super. 2014) (citation

omitted).

We have also explained that

[a] new trial should not be granted because of a mere conflict in
the testimony or because the judge on the same facts would have
arrived at a different conclusion. Rather, the role of the trial court

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is to determine that notwithstanding all the evidence, certain facts
are so clearly of greater weight that to ignore them, or to give
them equal weight with all the facts, is to deny justice. A motion
for a new trial on the grounds that the verdict is contrary to the
weight of the evidence concedes that there is sufficient evidence
to sustain the verdict; thus the trial court is under no obligation
to view the evidence in the light most favorable to the verdict
winner.

Id. (citation omitted).

Instantly, the PCRA court concluded that a challenge to the weight of

the evidence supporting Appellant’s convictions would have been frivolous.5

See PCRA Ct. Op. at 8. The PCRA court further concluded that trial counsel

cannot be considered ineffective. Id. After a thorough examination of the

record, including the transcripts of Appellant’s jury trial, we observe that the

record supports the PCRA court’s ruling. See Miller, 102 A.3d at 992; Landis,

89 A.3d at 699. Therefore, Appellant’s third issue warrants no relief.

In his fourth issue, Appellant emphasizes Mr. Scott’s testimony that he

did not see the shooter, because Mr. Scott dropped to the ground upon hearing

the gunshots. Appellant’s Brief at 46-47. In light of this testimony, Appellant

argues that trial counsel should have requested a Kloiber instruction.6 Id. at

____________________________________________

5 The judge who presided over Appellant’s PCRA proceedings also presided
over Appellant’s jury trial.

6 Appellant’s brief includes an argument that the testimony from Ms. Hill, Mr.
Johnson, and Mr. Harvey also created the need for a Kloiber instruction.
Appellant’s Brief at 43. In his pro se response to the Rule 907 notice, however,
Appellant’s argument is limited to Mr. Scott’s testimony only. See Pro Se
Response at 27-29. Therefore, we address Appellant’s argument on appeal
only as it pertains to the necessity of a Kloiber instruction for Mr. Scott’s
testimony. See Ousley, 21 A.3d at 1242 (reiterating that this Court cannot
consider issues not raised in the PCRA court).

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48. Appellant insists trial and direct appeal counsel lacked a reasonable basis

for failing to challenge the trial court’s omission of a Kloiber instruction, PCRA

counsel lacked a reasonable basis for failing to develop this claim in an

amended petition, and counsels’ inaction caused him to suffer prejudice. Id.

at 43-44. Appellant concludes all prior counsel were ineffective for failing to

challenge the omission of a Kloiber instruction. Id. at 48.

“A Kloiber charge is appropriate where there are special identification

concerns: a witness did not have the opportunity to clearly view the

defendant, equivocated in his identification of a defendant, or had difficulty

making an identification in the past.” Commonwealth v. Reid, 99 A.3d 427,

448 (Pa. 2014) (citations omitted).

Our case law makes clear that the need for a Kloiber charge
focuses on the ability of a witness to identify the defendant. Our
Commonwealth’s decisional law has long held that prior
inconsistent statements based upon fear of endangerment do not
equate to a prior failure of ability to identify a defendant.

Id. at 449 (citations omitted). “Unlike the typical Kloiber situation, where

there is a damaging in-court identification of the accused, the same type of

concerns are not present where a witness declines to identify the defendant

in court.” Commonwealth v. Sanders, 42 A.3d 325, 335 (Pa. Super. 2012).

Instantly, Mr. Scott did not identify Appellant as the shooter at trial,

and he claimed that he did not witness the shooting. See N.T. Trial, 11/5/14,

at 4-23. Rather, the Commonwealth admitted into evidence Mr. Scott’s prior

statement to police, wherein he claimed to have seen the shooter. Id. at 6;

Commonwealth’s Trial Ex. C-35. When confronted with his prior inconsistent

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statement, Mr. Scott admitted that he did not want to testify at trial. See

N.T. Trial, 11/5/14, at 13. Because Mr. Scott did not actually identify

Appellant as the shooter, a Kloiber instruction was unnecessary. See Reid,

99 A.3d at 448; Sanders, 42 A.3d at 335. Consequently, there is no arguable

merit to Appellant’s claim, and counsel cannot be considered ineffective on

this basis. See Smith, 167 A.3d at 788.

In his fifth issue, Appellant contends that Commonwealth witness

Michael Gough utilized a sign language interpreter (Interpreter) to testify at

trial. Appellant’s Brief at 48. Although Interpreter testified that he is a master

certified sign language interpreter, Appellant baldly asserts that Interpreter

lied about his qualifications. Id. at 49. To support this claim, Appellant’s brief

includes a copy of the 2016 interpreter roster for the Administrative Office of

Pennsylvania Courts (AOPC). Id. at Attach. C. Appellant complains that

Interpreter is not listed on the attached roster. Id. at 49. Appellant insists

that trial and direct appeal counsel lacked a reasonable basis for failing to

challenge Interpreter’s qualifications, PCRA counsel lacked a reasonable basis

for failing to develop this claim in an amended petition, and counsels’ inaction

caused him to suffer prejudice. Id. Appellant concludes all prior counsel were

ineffective for failing to challenge Interpreter’s qualifications. Id.

Instantly, Appellant relies on the fact that Interpreter is not included on

AOPC’s 2016 interpreter roster. This ignores the fact that Appellant’s trial

occurred in 2014, and Appellant has provided no evidence regarding

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Interpreter’s status on AOPC’s roster at that time.7 Moreover, Interpreter was

sworn in at trial and confirmed that he was a certified sign language

interpreter. See N.T. Trial, 11/5/14, at 107. The PCRA court also noted,

“[Appellant] provides no evidence for how the interpreter caused him

prejudice. There is nothing in the record indicating that the interpreter did

not properly perform his duty.” PCRA Ct. Op. at 9. The records supports the

PCRA court’s determination, and we conclude there is no arguable merit to

Appellant’s claims of ineffectiveness in conjunction with Interpreter’s role at

trial. See Smith, 167 A.3d at 788.

In his sixth issue, Appellant presents an ineffectiveness claim based

upon counsels’ failure to challenge certain court costs. Although Appellant

includes this claim in his statement of questions presented, the brief does not

contain a separate argument section developing this issue. Consequently,

Appellant’s sixth issue is waived. See Commonwealth v. Freeman, 128

A.3d 1231, 1249 (Pa. Super. 2015) (explaining that the failure to develop a

legal argument in support of a claim results in waiver of the issue).

In his final issue, Appellant attacks PCRA counsel’s representation.

Appellant’s Brief at 51. Appellant contends PCRA counsel filed a

Turner/Finley letter “based upon [Appellant’s] lack of specifics” to support

the legal claims Appellant wished to pursue. Id. Appellant complains that

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7 In its brief, the Commonwealth includes a copy of AOPC’s 2013 interpreter
roster, which lists Interpreter as a member of the program at that time. See
Commonwealth’s Brief at Ex. A.

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PCRA counsel “did not investigate beyond [Appellant’s] boilerplate assertions

[included] within the [original pro se PCRA] petition.” Id. Appellant argues

that PCRA counsel “failed to respond to [Appellant’s] correspondence,” and

“never inquired into the underlying facts supporting [Appellant’s] legal

claims.” Id. Further, Appellant asserts that PCRA counsel’s Turner/Finley

letter “crossed the line from advocate to adversary.” Id. at 52.

Upon receiving the Turner/Finley letter, Appellant maintains that he

“researched the record and the law,” and he submitted the pro se response to

the Rule 907 notice that properly developed the legal arguments in support of

his PCRA claims. Id. at 51. Because he adequately developed his claims

without PCRA counsel’s assistance, Appellant insists he should have an

opportunity to make additional amendments to his PCRA petition with new

counsel. Id. at 50. Appellant also seeks to raise new claims not mentioned

in the pro se response to the Rule 907 notice, including a challenge to the fact

that the Commonwealth “used ‘one’ photo of [Appellant] when conducting

identification line-up[s,] and this was very prejudicial to” Appellant. Id. at

53.

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.

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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) (citations

omitted).

Instantly, PCRA counsel substantially complied with the requirements of

withdrawing under Turner/Finley. PCRA counsel filed a motion to withdraw

as counsel and sent Appellant (1) a copy of his “no-merit” letter detailing PCRA

counsel’s review of the matter and reasons for determining that Appellant’s

issues lack merit, (2) a copy of the motion to withdraw, and (3) a statement

advising Appellant of his right to proceed pro se or with private counsel. See

“No-Merit” Letter, 3/24/18, at 10; Mot. to Withdraw, 3/24/18, at 2-3; see

Wrecks, 931 A.2d at 721. Moreover, PCRA counsel explained that he

reviewed the entire record and corresponded with Appellant regarding the

issues Appellant wanted to raise.

Appellant challenged PCRA counsel’s conclusions in his pro se response

to the Rule 907 notice. The PCRA court evaluated all of the claims presented

in Appellant’s petition and pro se response, and it determined that they lacked

merit. See PCRA Ct. Op. at 7-12. We cannot say that the PCRA court erred

in its analysis. See Miller, 102 A.3d at 992. On this record, PCRA counsel

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properly withdrew representation, and Appellant is not entitled to relief on this

basis.8

We conclude Appellant is not entitled to relief on his claims, and the

PCRA court did not commit legal error related to the dismissal of Appellant’s

PCRA petition. Accordingly, we affirm the order dismissing Appellant’s PCRA

petition. See id.

Order affirmed.
Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 5/6/19

____________________________________________

8 To the extent Appellant alleges that the Commonwealth showed a single
photo of Appellant to a witness for identification purposes, we emphasize that
Appellant has failed to develop this claim as a challenge to trial counsel’s
stewardship. Rather, Appellant baldly asserts that the Commonwealth
violated his due process rights. See Appellant’s Brief at 54. As presented,
Appellant could have raised this claim earlier, and it is now waived under the
PCRA. See 42 Pa.C.S. § 9544(b) (stating “an issue is waived if the petitioner
could have raised it but failed to do so before trial, at trial, . . . on appeal or
in a prior state postconviction proceeding”).

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