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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
BEAU WILLIAM CHERMER :
:
Appellant : No. 1159 WDA 2019
Appeal from the PCRA Order Entered July 1, 2019
In the Court of Common Pleas of Beaver County Criminal Division at
No(s): CP-04-CR-0001125-2012
BEFORE: MURRAY, J., McLAUGHLIN, J., and PELLEGRINI, J.*
MEMORANDUM BY MURRAY, J.: FILED JULY 17, 2020
Beau William Chermer (Appellant) appeals pro se from the order
dismissing his petition filed pursuant to the Post Conviction Relief Act (PCRA),
42 Pa.C.S.A. §§ 9541-9546. For the reasons that follow, we affirm.
The PCRA court summarized the facts giving rise to Appellant’s
convictions as follows:
The underlying case involved an April 29, 2012 incident where
[Appellant] and a co-defendant broke into the [v]ictim’s home,
brutally assaulted him, robbed him, and then left him seriously
injured in his home. Twenty-one (21) days after the assault on
the [v]ictim, he died from the injuries inflicted by [Appellant].
* * *
At trial, the [c]ourt heard testimony from multiple medical
professionals and lay witnesses regarding the cause of the
[v]ictim’s death. The testimony provided that after being tortured
and beaten by [Appellant] and his [c]o-[d]efendant during a home
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
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invasion, the eighty-one (81) year old [v]ictim suffered a
traumatic brain injury. The [v]ictim was found the day after the
attack and was rushed to the hospital. Testimony provided that
the victim suffered from a pre-existing heart condition, requiring
him to take Coumadin, a blood thinner, to prevent blood clots.
Due to the severe brain injury, the treating physicians suspended
the [v]ictim’s normal medication and briefly took him off the
Coumadin to help treat the brain trauma. Testimony provided by
Doctor Christina Troevs, the Medical Director of the Trauma
Intensive Care Unit of Allegheny General Hospital, explained that
it was customary to stop prescribing Coumadin for thirty (30) days
following severe brain injuries in patients. The [v]ictim ultimately
died twenty-one (21) days after the brutal attack.
The Commonwealth’s Forensic Pathologist, Doctor James
Smith, determined that the cause of death of the [v]ictim was an
acute myocardial infarction, as a direct result of the trauma that
had occurred to the [v]ictim’s brain twenty-one (21) days
previously. While all parties agreed that the [v]ictim’s pre-
existing heart condition played a role in his death, the experts
disagreed that the brain trauma was the underlying cause of the
[v]ictim’s death. The Commonwealth witnesses and medical
experts all provided testimony that the brain injury is what placed
the victim in the hospital and ultimately caused his death. Dr.
Smith explicitly stated that the brain trauma was the direct cause
of the [v]ictim’s death. There was no dispute that the Appellant
caused the [v]ictim’s extensive brain trauma.
PCRA Court Opinion, 9/13/19, at 6, 10-11 (footnote and record citations
omitted).
As a result of his actions on April 29, 2012, Appellant was charged at
CP-04-CR-0001130-2012 (1130-2012) with 16 crimes, including robbery,
aggravated assault, burglary, unlawful restraint, theft by unlawful taking,
simple assault, false imprisonment, and criminal conspiracy. As a result of
the victim’s death three weeks later, Appellant was charged at CP-04-CR-
0001125-2012 (1125-2012) with second-degree murder.
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Trial commenced on January 28, 2014. However, on January 30,
2014, the trial court, at Appellant’s request, declared a mistrial. On February
10, 2014 Appellant filed a motion to bar re-trial and dismiss on grounds of
double jeopardy. Appellant claimed that the prosecutor intentionally caused
the mistrial. Thereafter, the trial court conducted an evidentiary hearing,
after which it denied Appellant’s motion based on its determination that there
had been no prosecutorial misconduct.
On August 17, 2015, at Docket Number 1130-2012, Appellant pled
guilty to all 16 charges. Following waiver of his right to a jury trial, Appellant
proceeded to a bench trial on the charge of second-degree murder at Docket
Number 1125-2012; the trial court found Appellant guilty on August 26, 2015.
On October 19, 2015, the trial court sentenced Appellant to life imprisonment
without the possibility of parole at Docket Number 1125-2012, and a
consecutive aggregate term of 19 to 50 years of incarceration at Docket
Number 1130-2012. Appellant filed a timely direct appeal.
On March 14, 2017, this Court affirmed Appellant’s convictions at both
Docket Numbers 1125-2012 and 1130-2012. See Commonwealth v.
Chermer, 128 WDA 2016 at 20 (Pa. Super. Mar. 14, 2017) (unpublished
memorandum). Our Supreme Court denied Appellant’s petition for allowance
of appeal.
Appellant filed a pro se PCRA petition on August 16, 2017 at both Docket
Numbers 1125-2012 and 1130-2012. Appellant raised, inter alia, numerous
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allegations of Trial Counsel ineffectiveness. The court appointed counsel and
on December 10, 2018, PCRA Counsel filed a petition to withdraw and 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). On January 15, 2019, Appellant filed a pro se response to PCRA
Counsel’s no-merit letter.
On May 7, 2019, the PCRA court granted PCRA Counsel permission to
withdraw and issued notice of intent to dismiss Appellant’s petition without a
hearing pursuant to Pennsylvania Rule of Criminal Procedure 907. On May
28, 2019, Appellant filed a pro se response. On July 1, 2019, the PCRA court
entered orders at both Docket Numbers 1125-2012 and 1130-2012 denying
the petition. On July 15, 2019, Appellant filed a timely pro se notice of appeal
from the PCRA court’s order at Docket Number 1125-2012 only.
Before we consider the issues Appellant raises on appeal, we address
whether we have jurisdiction. See Commonwealth v. Borrero, 692 A.2d
158, 159 (Pa. Super. 1997) (stating that appellate court may sua sponte
examine its jurisdiction). Appellant filed one notice of appeal from the July 1,
2019 order denying his PCRA petition at two criminal docket numbers. Such
practice appears to be prohibited by our Supreme Court’s decision in
Commonwealth v. Walker, 185 A.3d 969 (Pa. 2018). The Supreme Court
held that “prospectively, where a single order resolves issues arising on more
than one docket, separate notices of appeal must be filed for each case.”
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Id. at 971 (emphasis added). The Supreme Court observed that the Official
Note to Rule 341 of the Pennsylvania Rules of Appellate Procedure “provides
a bright-line mandatory instruction to practitioners to file separate notices of
appeal,” and accordingly, determined that “the failure to do so requires
the appellate court to quash the appeal.” Id. at 976-77 (emphasis
added).
Arguably, we could quash Appellant’s appeal because he filed one notice
of appeal from the order denying his petition at two docket numbers. See id.
In Commonwealth v. Stansbury, 219 A.3d 157 (Pa. Super. 2019), however,
this Court declined to apply Walker where the trial court improperly “advised”
the defendant that filing a single notice of appeal from an order disposing of
a PCRA petition at two separate docket numbers was sufficient. Id. at 160.
We explained that such misstatements “amount to a breakdown in court
operations such that we may overlook the defective nature of [a]ppellant’s
timely notice of appeal rather than quash pursuant to Walker.” Id. In this
case, like Stansbury, the PCRA court dismissed Appellant’s petition and only
advised him to file a single notice of appeal. See Trial Court Order, 7/1/19.
Therefore, we decline to quash, and proceed to review Appellant’s claims. See
Stansbury, 219 A.3d at 160.
Appellant raises the 12 issues for review:
I. Did the PCRA court err in summarily dismissing Appellant’s
petition without a hearing because PCRA Counsel failed to raise a
meritorious claim of Trial Counsel ineffectiveness for failing to
object to prosecutorial misconduct in the form of the
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Commonwealth repeatedly referring to Appellant as a “Predator,”
and the victim as “Prey”?
II. Did the PCRA court err in summarily dismissing Appellant’s
petition without a hearing because PCRA Counsel failed to raise a
meritorious claim of Trial Counsel ineffectiveness for failing to
object to prosecutorial misconduct during the Commonwealth’s
summation by repeatedly intimating to the fact finder of how
“mad” he was about the particular circumstances of the case?
III. Did the PCRA court err in summarily dismissing Appellant’s
petition without a hearing because PCRA Counsel failed to raise a
meritorious claim of Trial Counsel ineffectiveness for failure to
object to prosecutorial misconduct in the form of improper
questioning/cross-examination of the victim’s daughter, Denise
Heuring, which was irrelevant and wholly prejudicial?
IV. Did the PCRA court err in summarily dismissing Appellant’s
petition without a hearing because PCRA Counsel failed to raise a
meritorious claim of Trial Counsel ineffectiveness in foregoing
cross-examination and impeachment of a key prosecution
witness, Slade Unis?
V. Did the PCRA court err in summarily dismissing Appellant’s
petition without a hearing because PCRA Counsel failed to raise a
meritorious claim of Trial Counsel ineffectiveness for failure to
consult with, retain and call a cardiologist to testify at Appellant’s
trial as Trial Counsel was informed by Appellant’s family they
would fund a cardiologist after the trial court denied funds to hire
a cardiologist during Appellant’s first trial?
VI. Did the PCRA court err in summarily dismissing Appellant’s
petition without a hearing because PCRA Counsel failed to raise a
meritorious claim of Trial Counsel ineffectiveness for failing to
subject the Commonwealth’s case to meaningful adversarial
testing by failing to object to the lack of notice and subject-matter
jurisdiction over Appellant and the requisite element malice
aforethought and Pennsylvania’s unconstitutional criminal
homicide; murder statutes?
VII. Did the PCRA court err in summarily dismissing Appellant’s
petition without a hearing because PCRA Counsel failed to raise a
meritorious claim of Trial Counsel’s conflict and ineffectiveness
causing him to withdraw during Appellant’s sentencing hearing
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which prompted the trial court to appoint Attorney DiMartini, who
represented Appellant during his first trial, to file post-sentence
motion and direct appeal?
VIII. Did the PCRA court err in summarily dismissing Appellant’s
petition without a hearing because PCRA Counsel failed to raise a
meritorious claim of the cumulative effect of Trial Counsel’s above
ineffectiveness issues rising to the level of prejudice?
[IX.] Did the PCRA court err in summarily dismissing Appellant’s
petition without a hearing because PCRA Counsel failed to raise a
meritorious claim of the Commonwealth further engaging in
prosecutorial misconduct by withholding material impeachment
evidence and knowingly presenting false and misleading
testimony pertaining to leniency given to Slade Unis in exchange
for his cooperation with the investigation and then testifying
against Appellant at his trial?
X. Did the PCRA court err in summarily dismissing Appellant’s
petition without a hearing because PCRA Counsel failed to raise a
meritorious claim of the Double Jeopardy Clause pursuant to
Article I § 10 of Pennsylvania’s Constitution precluding a [second]
trial given Appellant’s first trial ended in a mistrial due to
misconduct, and the above described prosecutorial misconduct
designed to deny Appellant’s constitutional rights to a fair trial and
due process?
XI. Did the PCRA court err in summarily dismissing Appellant’s
petition without a hearing because PCRA Counsel [] rendered
ineffective assistance of counsel?
XII. Did the PCRA court err in summarily dismissing Appellant’s
petition without a hearing because PCRA Counsel[’s]
Turner/Finley “no merit” letter failed to satisfy the technical
prerequisites of Turner/Finley[?] Did the PCRA court also err in
failing to conduct its own independent analysis in its decision to
summarily dismiss Appellant’s petition without a hearing rather
than largely adopting PCRA Counsel’s flawed Turner/Finley “no
merit” letter in violation of Appellant’s rule based rights to
effective assistance of PCRA counsel; meaningful PCRA process,
and Appellant’s state-created liberty interest in demonstrating his
innocence.
Appellant’s Brief at 3-6.
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In considering Appellant’s issues, we review the denial of PCRA relief by
“examining whether the PCRA court’s findings of fact are supported by the
record, and whether its conclusions of law are free from legal error.”
Commonwealth v. Busanet, 54 A.3d 35, 45 (Pa. 2012). “Our scope of
review is limited to the findings of the PCRA court and the evidence of record,
viewed in the light most favorable to the party who prevailed in the PCRA
court proceeding.” Id.
Each of Appellant’s issues raise claims of ineffective assistance of
counsel. With respect to such claims, our Supreme Court stated:
It is well-settled that counsel is presumed to have been
effective and that the petitioner bears the burden of proving
counsel’s alleged ineffectiveness. Commonwealth v. Cooper,
941 A.2d 655, 664 (Pa. 2007). To overcome this presumption, a
petitioner must establish that: (1) the underlying substantive
claim has arguable merit; (2) counsel did not have a reasonable
basis for his or her act or omission; and (3) the petitioner suffered
prejudice as a result of counsel’s deficient performance, “that is,
a reasonable probability that but for counsel’s act or omission, the
outcome of the proceeding would have been different.” Id. A
PCRA petitioner must address each of these prongs on appeal.
See Commonwealth v. Natividad, 938 A.2d 310, 322 (Pa.
2007) (explaining that “appellants continue to bear the burden of
pleading and proving each of the Pierce elements on appeal to
this Court”). A petitioner’s failure to satisfy any prong of this test
is fatal to the claim. Cooper, 941 A.2d at 664.
Commonwealth v. Wholaver, 177 A.3d 136, 144 (Pa. 2018) (citations
modified).
At the outset, we note that Appellant’s brief is extraordinarily long (363
pages, with the body of the brief exceeding 150 pages, and more than 100
pages of exhibits); also, Appellant’s argument tends to be rambling and often
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incoherent. We therefore summarize and analyze each of his 12
ineffectiveness issues to the best of our ability.
For his first, second, and third issues, Appellant argues that the PCRA
court erred by dismissing his claims that Trial Counsel was ineffective for
failing to object to alleged instances of prosecutorial misconduct. First,
Appellant asserts that the prosecutor inappropriately referred to him during
closing arguments as a “predator” and the victim as “prey.” Second, Appellant
contends that the prosecutor improperly stated during closing arguments that
the prosecutor was “mad” about the circumstances of this case. Third,
Appellant claims the prosecutor committed misconduct by improperly cross-
examining the victim’s daughter. These issues are meritless.
This Court has explained:
A reviewing court’s “consideration of claims of prosecutorial
misconduct is centered on whether the appellant was deprived of
a fair trial, not deprived of a perfect trial.” Commonwealth v.
Bronshtein, 691 A.2d 907, 922 (Pa. 1997).
Comments by a prosecutor do not constitute reversible error
unless the unavoidable effect of such comments would be
to prejudice the [factfinder], forming in [his] mind a fixed
bias and hostility toward the defendant such that they could
not weigh the evidence objectively and render a true
verdict.
Id. at 917. Even if a prosecutor’s statement is improper, an
appellant still may not be entitled to relief. Id. at 922. In
addition, “it has long been held that trial judges, sitting as
factfinders, are presumed to ignore prejudicial information
in reaching a verdict.” Commonwealth v. Irwin, 579 A.2d
955, 957 (Pa. Super. 1990).
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Commonwealth v. Thomas, 783 A.2d 328, 335 (Pa. Super. 2001) (citations
modified; emphasis added).
Here, other than general assertions, Appellant’s arguments lack support
as to how the alleged instances of prosecutorial misconduct resulted in
prejudice. For example, Appellant states that “the prosecutor elicited
testimony from the victim’s daughter that was irrelevant . . . and prejudicial”
when “the only undisputed fact at issue was the causation of the victim’s
death.” Appellant’s Brief at 19.
As noted above, to the extent a prosecutor’s remarks or questioning
were inappropriate, we must presume that the trial court, sitting as factfinder,
was capable of disregarding any prejudicial remarks in reaching its verdict.
See Thomas, supra. The PCRA, recognizing that Appellant was convicted
after a non-jury trial, correctly stated that the “law is clear that trial judges
are presumed to be able to ignore any potential prejudicial comments.” PCRA
Court Opinion, 9/13/19, at 17. Because Appellant cannot establish that he
was prejudiced by Trial Counsel’s failure to object to alleged instances of
prosecutorial misconduct, his first, second, and third issues fail. See
Wholaver, 177 A.3d at 144.
For his fourth and ninth issues, Appellant argues that the PCRA court
erred in dismissing his claim that Trial Counsel was ineffective for not cross-
examining and impeaching the testimony of Commonwealth witness, Slade
Unis (Unis), who was an acquaintance of Appellant, having known him since
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he was 15 years old and having worked with him on occasion. Mr. Unis
testified that Appellant told him that Appellant knew where “we could get
$100,000, maybe $200,000” and the victim had a safe “with $200,000 in it.”
PCRA Court Opinion, 9/13/19, at 12. Appellant asserts that Trial Counsel was
ineffective for failing to cross-examine Mr. Unis regarding any deals for
leniency Unis made with the Commonwealth relating to his own criminal
proceedings. Appellant asserts that this information was material to the case.
The PCRA court stated that counsel for Appellant’s co-defendant
“thoroughly cross-examined” Mr. Unis regarding the benefits he received for
testifying, which Appellant concedes. See PCRA Court Opinion, 9/13/19, at
18; Appellant’s Brief at 23-28. “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. Adams-Smith, 209 A.3d 1011, 1019
(Pa. Super. 2019) (citation omitted). Appellant faults Trial Counsel for his
decision not to cross-examine Mr. Unis; however such cross-examination
would have been duplicative of the cross-examination by counsel for
Appellant’s co-defendant. Thus, Appellant’s ineffective assistance of counsel
claims relating to Mr. Unis are baseless and Appellant’s fourth and ninth issues
do not merit relief. See Adams-Smith, 209 A.3d at 1019.
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For his fifth issue, Appellant argues that the PCRA court erred in
dismissing his claim that Trial Counsel was ineffective for failing to retain a
cardiologist to testify about the victim’s cause of death. When raising a claim
of ineffective assistance of counsel for the failure to call a witness at trial, a
petitioner must establish:
(1) the witness existed; (2) the witness was available to testify
for the defense; (3) counsel knew of, or should have known of,
the existence of the witness; (4) the witness was willing to testify
for the defense; and (5) the absence of the testimony of the
witness was so prejudicial as to have denied the defendant a fair
trial.
Commonwealth v. Sneed, 45 A.3d 1096, 1108-09 (Pa. 2012). To
demonstrate prejudice, a petitioner “must show how the uncalled witnesses’
testimony would have been beneficial under the circumstances of the case.”
Id. at 1109 (quotations and citations omitted). “Thus, counsel will not be
found ineffective for failing to call a witness unless the petitioner can show
that the witness’s testimony would have been helpful to the defense.” Id.
Appellant has failed to establish any of the five factors set forth in
Sneed. Most importantly, Appellant does not explain how he would have
benefitted from the testimony of a cardiologist. Notably, Appellant likewise
address the necessity of cardiologist testimony when Dr. Cyril Wecht, a
forensic pathologist, testified for the defense that the victim’s injuries from
the assault “bore no relationship whatsoever” to the victim’s cause of death.
N.T., 8/25/15, at 20. Thus, Appellant’s fifth issue lacks merit. See
Wholaver, 177 A.3d at 144.
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For his sixth issue, Appellant argues that the PCRA court erred in
dismissing his claim that Trial Counsel was ineffective for failing to challenge
the constitutionality of Pennsylvania’s murder statute, 18 Pa.C.S.A. § 2502,
and for failing to object to the trial court’s lack of subject matter jurisdiction.
This issue is waived.
With respect to Appellant’s claim that Trial Counsel was ineffective for
failing to challenge the constitutionality of Pennsylvania’s murder statute, “a
statute will not be found unconstitutional unless it clearly, palpably, and plainly
violates the Constitution. If there is any doubt as to whether a challenger has
met this high burden, then we will resolve that doubt in favor of the statute’s
constitutionality.” Commonwealth v. Thompson, 106 A.3d 742, 763 (Pa.
Super. 2014).
Appellant’s argument is mostly nonsensical, and includes no citation to
pertinent authority. Moreover, Appellant fails to reference any basis upon
which we could conclude that the statute is unconstitutional. Similarly,
Appellant fails to develop any argument as to how the trial court lacked subject
matter jurisdiction. Our Supreme Court has long held that it is not the courts’
obligation to formulate arguments on behalf of an appellant. See
Commonwealth v. Wright, 961 A.2d 119, 135 (Pa. 2008). Therefore,
Appellant has waived his claim that Trial Counsel was ineffective for failing to
challenge the constitutionality of the murder statute and for failing to object
to the trial court’s lack of subject matter jurisdiction. See Commonwealth
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v. Johnson, 985 A.2d 915, 924 (Pa. 2009) (“where an appellate brief fails to
provide any discussion of a claim with citation to relevant authority or fails to
develop the issue in any other meaningful fashion capable of review, that claim
is waived”); Commonwealth v. Clayton, 816 A.2d 217, 221 (Pa. 2002) (“[I]t
is a well settled principle of appellate jurisprudence that undeveloped claims
are waived and unreviewable on appeal.”); see also Pa.R.A.P. 2119(a)
(requiring that each argument must be “followed by such discussion and
citation of authorities as are deemed pertinent”).
For his seventh issue, Appellant argues that the PCRA court erred in
dismissing his claim that Trial Counsel conceded his ineffectiveness at
Appellant’s sentencing hearing. Appellant asserts that Trial Counsel likewise
admitted to having a conflict of interest in representing Appellant such that
Appellant is entitled to a new trial.
At Appellant’s sentencing hearing, after the trial court sentenced
Appellant, Trial Counsel orally requested permission to withdraw from the
case. N.T., 10/19/15, at 33-34. Trial Counsel sought to withdraw because he
correctly anticipated that Appellant would assail Trial Counsel’s
representation. See id. At no point did Trial Counsel concede that he was
ineffective, nor did Trial Counsel express that he had a conflict of interest in
representing Appellant. See id. Again, the record does not support
Appellant’s ineffectiveness claim. See Wholaver, 177 A.3d at 144.
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For his eighth issue, Appellant argues that the PCRA court erred in
dismissing his claim that the “cumulative effect” of Trial Counsel’s
ineffectiveness resulted in prejudice and warranted a new trial. Appellant’s
Brief at 54. Our Supreme Court “has repeatedly emphasized [that] no number
of failed claims may collectively warrant relief i[f] they fail to do so
individually.” Commonwealth v. Sepulveda, 55 A.3d 1108, 1150 (Pa.
2012). The Supreme Court recognized, however, that “where multiple
instances of deficient performance are found, the cumulative effect can result
in prejudice.” Id. (citations omitted). As discussed above, Appellant has not
demonstrated that any of his individual claims of ineffective assistance of
counsel have merit. Consequently, Appellant’s claim of cumulative
ineffectiveness fails.
For his tenth issue, Appellant argues that PCRA Counsel was ineffective
for failing to raise a claim that Appellant’s second trial should have been barred
on double jeopardy grounds because the mistrial in his first trial was the result
of prosecutorial misconduct. Because Appellant previously litigated the double
jeopardy issue on direct appeal, it is not a cognizable claim for relief on
collateral review:
A claim that has been previously litigated is not cognizable for
collateral relief. 42 Pa.C.S.A. § 9544(a)(2). The PCRA defines a
matter as having been previously litigated when “the highest
appellate court in which the petitioner could have had review as a
matter of right has ruled on the merits of the issue.” Id. “[T]he
fact that a petitioner presents a new argument or advances a new
theory in support of a previously litigated issue will not circumvent
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the previous litigation bar.” Commonwealth v. Burkett, 5 A.3d
1260, 1270 (Pa.Super.2010)[.]
Commonwealth v. Roane, 142 A.3d 79, 94 (Pa. Super. 2016).
Appellant asks us, in the context of his ineffective assistance of counsel
claim, to revisit whether the Commonwealth engaged in prosecutorial
misconduct by intentionally causing a mistrial. This Court already rejected
this claim. See Chermer, 128 WDA 2016 at 8. As we already rejected
Appellant’s double jeopardy issue on the merits, and our Court is the highest
appellate court in which Appellant could appeal the issue as of right, this issue
was previously litigated and is not cognizable under the PCRA. See Roane,
142 A.3d at 94. Appellant’s tenth issue is unavailing.
Finally, for his eleventh and twelfth issues, Appellant appears to argue
that the PCRA court erred in permitting PCRA Counsel to withdraw because
she failed to comply with the technical mandates of Turner/Finley, and was
ineffective for filing a no-merit letter and declining to raise any meritorious
issues on his behalf. Both issues lack merit.
Pursuant to Turner/Finley, an “[i]ndependent review of the record by
competent counsel is required before withdrawal [on collateral review] is
permitted.” Commonwealth v. Pitts, 981 A.2d 875, 876 n.1 (Pa. 2009). In
Pitts, our Supreme Court explained that independent review requires proof
of:
1. A “no merit” letter by PC[R]A counsel detailing the nature and
extent of his review;
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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.
Id. (citation and brackets omitted).
Additionally:
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.
If counsel fails to satisfy the foregoing technical prerequisites of
Turner/Finley, the court will not reach the merits of the
underlying claims but, rather, will merely deny counsel’s request
to withdraw. Upon doing so, the court will then take appropriate
steps, such as directing counsel to file a proper Turner/Finley
request or an advocate’s brief.
However, where counsel submits a petition and no-merit letter
that do satisfy the technical demands of Turner/Finley, the
[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. Wrecks, 931 A.2d 717, 721 (Pa. Super. 2007) (citations
omitted).
Here, PCRA Counsel filed a “no-merit” letter and petition to withdraw
which stated the nature and extent of her review, listed the issues for which
Appellant sought review, explained why and how the issues lacked merit, and
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requested permission to withdraw. See Turner/Finley Letter, 12/10/18;
Motion to Withdraw as Counsel, 12/10/18. PCRA Counsel sent Appellant a
copy of the “no-merit” letter, a copy of the petition to withdraw, and a
statement advising Appellant of the right to proceed pro se or by privately
retained counsel. See id. Thus, the record reflects that PCRA Counsel
submitted a petition to withdraw and “no-merit” letter satisfying the demands
of Turner/Finley. Appellant’s claim that PCRA Counsel failed to comply with
the Turner/Finley is meritless.
Lastly with respect to Appellant’s claim of PCRA Counsel ineffectiveness,
we address layered ineffective claims as follows:
Where the defendant asserts a layered ineffectiveness claim[,] he
must properly argue each prong of the three-prong ineffectiveness
test for each separate attorney.
Layered claims of ineffectiveness are not wholly distinct from the
underlying claims[,] because proof of the underlying claim is an
essential element of the derivative ineffectiveness claim[.] In
determining a layered claim of ineffectiveness, the critical inquiry
is whether the first attorney that the defendant asserts was
ineffective did, in fact, render ineffective assistance of counsel. If
that attorney was effective, then subsequent counsel cannot be
deemed ineffective for failing to raise the underlying issue.
Commonwealth v. Rykard, 55 A.3d 1177, 1190 (Pa. Super. 2012) (citations
omitted).
As we have reiterated throughout this memorandum, there is no support
in the record for Appellant’s claims that Trial Counsel was ineffective.
Consequently, we are unpersuaded by Appellant’s claim of PCRA Counsel’s
ineffectiveness. See id. Accordingly, because we find no merit to Appellant’s
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issues, we conclude that the PCRA court did not err in dismissing Appellant’s
petition.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/17/2020
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