J-S60037-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ERICK ROBERT TROMETTER :
:
Appellant : No. 966 MDA 2019
Appeal from the PCRA Order Entered May 22, 2019
In the Court of Common Pleas of Northumberland County Criminal
Division at No(s): CP-49-CR-0001348-2014
BEFORE: SHOGAN, J., STABILE, J., and PELLEGRINI, J.*
MEMORANDUM BY PELLEGRINI, J.: FILED NOVEMBER 26, 2019
Erick Robert Trometter (Trometter), appeals from the order dismissing
his first petition filed pursuant to the Post Conviction Relief Act (PCRA), 42
Pa.C.S. §§ 9541-9546. Counsel for Trometter has filed a motion to withdraw
from representation and an Anders brief.1 We grant counsel’s petition to
withdraw and affirm the order of the PCRA court.
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* Retired Senior Judge assigned to the Superior Court.
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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On August 28, 2015, a jury found Trometter guilty of two counts of
aggravated assault and one count each of possession of a weapon, simple
assault and recklessly endangering another person.2 The charges stem from
an incident during which Trometter advanced, while brandishing a large knife,
toward the then-acting Chief of the Sunbury Police Department Brad Hare.
Despite the chief’s verbal commands that he drop the knife and use of a taser
on him, Trometter continued approaching Chief Hare. Trometter’s progression
towards Chief Hare stopped only when the chief shot him in the abdomen. On
December 21, 2015, the trial court sentenced Trometter to an aggregate term
of not less than four nor more than eight years’ incarceration. This Court
affirmed the judgment of sentence on July 24, 2017. Trometter did not file a
petition for allowance of appeal with our Supreme Court.
On January 2, 2018, Trometter, acting pro se, filed this timely PCRA
petition, later amended by appointed counsel, arguing that trial counsel for
Trometter provided ineffective assistance. At the PCRA hearing, trial counsel,
James Best, Esq. (Attorney Best), as well as appellate counsel on direct
appeal, Michael O’Donnell, Esq. (Attorney O’Donnell), testified. The
allegations raised at the hearing concerned trial counsel’s failure to file a
motion to suppress statements made by Trometter to Pennsylvania State
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2 18 Pa.C.S. §§ 2702(a)(2), 2702(a)(6), 907(b), 2701(a)(3), and 2705,
respectively.
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Police Trooper Ronald Zanella while hospitalized;3 request a psychiatric
evaluation for Trometter; and obtain video of the incident from Chief Hare’s
vehicle. (See PCRA Court Order, 5/22/19, at 1-2). The PCRA court entered
its order dismissing the petition and Trometter timely appealed.4
Counsel then filed her motion to withdraw from representation and her
Anders brief. In those circumstances:
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.
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3 When Trooper Zanella interviewed Trometter, he admitted that he had a
knife in his left hand and that he did not follow Chief Hare’s commands
because he was not going back to jail. (See N.T. Trial, 5/28/15, at 119-123).
4 Counsel filed a statement of intent to file an Anders/Santiago brief in lieu
of filing a Rule 1925(b) statement. See Pa.R.A.P. 1925(c)(4). The PCRA court
filed a statement in lieu of an opinion on July 19, 2019. See Pa.R.A.P.
1925(a).
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Commonwealth v. Walters, 135 A.3d 589, 591 (Pa. Super. 2016) (citation
omitted). If counsel has satisfied the above requirements, this Court must
then conduct its own review of the record and render an independent
judgment as to whether the appeal is without merit. Id. at 591.
Upon review of counsel’s motion to withdraw and the appellate brief
submitted on Trometter’s behalf, 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.
The appellate brief raises claims challenging the assistance of trial
counsel. (See Anders Brief, at 2-6).5 “Success on a claim of ineffective
assistance of counsel requires the petitioner to rebut the presumption that
counsel rendered effective assistance and prove, by a preponderance of the
evidence, that (1) the claim has arguable merit, (2) counsel’s action or
inaction was not based upon a reasonable trial strategy and (3) petitioner
suffered prejudice because of counsel’s act or omission.” Commonwealth v.
Williams, 141 A.3d 440, 454 (Pa. 2016) (citation omitted). “The failure to
satisfy any one of the prongs requires rejection of the petitioner’s claim.” Id.
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5 “When reviewing the denial of a PCRA petition, our standard of review is
limited to examining whether the PCRA court’s determination is supported by
evidence of record and whether it is free of legal error.” Commonwealth v.
Pew, 189 A.3d 486, 488 (Pa. Super. 2018), appeal denied, 200 A.3d 939 (Pa.
2019) (citation omitted).
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(citation omitted). “[C]ounsel will not be deemed ineffective for failing to raise
a meritless claim.” Commonwealth v. Miller, 212 A.3d 1114, 1129 (Pa.
Super. 2019) (citation omitted).
Instantly, Trometter claims that trial counsel was ineffective for failing
to file a motion to suppress the statements he made to Trooper Zanella while
he was hospitalized after he was shot. Trometter also argues that counsel
was ineffective for failing to request a psychiatric evaluation and for failing to
obtain video evidence from the police vehicle at the scene of the incident.
(See Anders Brief, at 4-6).
At the PCRA hearing, Attorney Best testified that he has practiced
criminal law since 1991, primarily as a defense attorney. He averred that,
under circumstances where he believes that police violated his client’s rights
during an interrogation, his routine practice is to file a suppression motion.
(See N.T. PCRA, 4/29/19, at 13-14). Attorney Best further testified that he
did not recall any basis on which to file a suppression motion in this case and
that he has no regrets regarding his representation of Trometter. (See id. at
14-15).
Regarding the lack of psychological evaluation, Attorney Best testified
that he had no difficulty whatsoever communicating with Trometter during
trial, and that there would have been no trial if Trometter were incompetent.
(See id. at 10). Additionally, at trial, Trooper Zanella testified that Trometter
was coherent during his interview, that he understood who the trooper was
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and why he was there, and that he responded appropriately to questions.
(See N.T. Trial, at 120).
Finally, with respect to the video from the police cruiser referenced in
the State Police Evidence Log, Attorney Best testified that he did not recall
ever seeing the video, and that he did not know if the contents actually showed
anything. (See N.T. PCRA, at 12). He stated, “the Commonwealth
represented there was no such videos.” (Id. at 11). Attorney O’Donnell
testified that when he represented Trometter on direct appeal, he personally
contacted both the District Attorney’s Office and the local police department
in an attempt to locate any video documentation and that those offices had
none. (See id. at 17).
After review of the record, we agree with the PCRA court’s conclusion
that Trometter’s claims lack arguable merit and that he failed to meet his
burden of establishing trial counsel’s ineffectiveness.
Petition to withdraw granted. Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/26/2019
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