J-S51003-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                            Appellee

                       v.

ROBERT RICARDO MCDONALD,

                            Appellant               No. 518 MDA 2014


                  Appeal from the Order Entered March 7, 2014
               In the Court of Common Pleas of Lancaster County
              Criminal Division at No(s): CP-36-CR-0000020-2012


BEFORE: BOWES, OTT, and MUSMANNO, JJ.

MEMORANDUM BY BOWES, J.:                          FILED AUGUST 13, 2014

       Robert Ricardo McDonald appeals from the order entered March 7,

2014, denying his first counseled PCRA petition. Counsel has filed a petition

to withdraw from representation and a brief pursuant to Anders v.

California, 386 U.S. 738 (1967).1

and affirm.



____________________________________________


1
   The proper procedure to withdraw in post-conviction relief matters is not
via an Anders brief. Rather, counsel is to submit a Turner/Finley no-merit
letter/brief. See Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and
Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc)
  Turner/Finley
continue to confuse the separate standards. Nonetheless, because the
Anders line of decisions is considered to afford greater protections than
does Turner/Finley, the error has no effect on the outcome of this case.
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         A jury found Appellant guilty of fleeing or attempting to elude a police

officer, recklessly endangering another person, and accidents involving

damage to an attended vehicle, and the court adjudged Appellant guilty of

summary offenses of reckless driving and failure to obey a traffic control

device.2 These charges arose out of an incident on October 31, 2011, where

Appellant fled from police after an officer attempted to effectuate a traffic

stop. Specifically, the officer was aware that Appellant did not have a valid

                                       his lights and siren.           Rather than stop,

Appellant sped away and proceeded to run through red lights and stop signs.

Appellant then abandoned his vehicle in his own driveway while it was still



         Following A

2012. The court imposed a sentence of eleven and one-half to twenty-three

months imprisonment to be followed by three years of probation. A timely

direct    appeal   ensued,     and   this      Court   affirmed   on    April   13,   2013.

Commonwealth v. McDonald, 75 A.3d 559 (Pa.Super. 2013) (unpublished

memorandum).           Appellant timely filed a pro se PCRA petition on May 13,

2013, which asserted ineffective assistance of trial counsel.                   The court

appointed counsel on May 24, 2013, and directed counsel to file an amended

____________________________________________


2
   A prior panel of this Court incorrectly indicated that Appellant was also
found guilty of driving without a license. However, the trial court found
Appellant not guilty of that charge. See N.T., 5/14,12, at 292-293.



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petition.   Appellant filed an amended petition on July 1, 2013, and the

Commonwealth filed a response on July 29, 2013, acquiescing to a hearing.

Accordingly, the court conducted an evidentiary hearing on October 22,

2013.
                                                             3
                                                                 testified that

Appellant had been picked up from work around the time in which the

incident had occurred and that her brother had admitted to taking her

vehicle, which was the car used in the incident. Robert Steel, the individual

who allegedly transported Appellant to work, also testified at the PCRA



Appellant to work, providing an alibi. Both witnesses testified at

preliminary hearing and trial counsel knew of their existence.        Indeed,

Mrs. McDonald did testify at trial.

        Trial counsel testified, however, that while she spoke with both

witnesess at the preliminary hearing neither Mrs. McDonald nor Mr. Steel

informed her at the preliminary hearing that Appellant was with Mr. Steel on

the night of the incident. She did become aware in early January 2012 that

Mrs. McDonald claimed that Appellant was traveling to work at the time of

the crimes.        Further, al

investigator, he provided that person with a false address and inactive
____________________________________________


3
   While Mrs. McDonald testified that she and Appellant are married, she
provided it was a common law marriage.



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telephone number.    Accordingly, trial counsel was unable to contact him.

She further averred that Mrs. McDonald told her on the day of trial that

Mrs.

was unaware of his whereabouts.

       Counsel elected not to present an alibi defense and instead argued



passenger.    She noted that she elected not to utilize an alibi defense

because the Commonwealth could introduce cell phone records showing that

Appellant was in the area in which the incident occurred. In addition, she

remarked that she investigated a possible alibi defense but found that the

alibi witnesses were either not cooperative or were inconsistent.      Trial

counsel set forth that one alleged alibi witness, Naomi Anderson, was

supposedly with Mr. Steel and Appellant but could not be located.        In

additio

workplace, a bar, and others who worked at the establishment.      None of

these individuals were at the bar during the pertinent period.

       Following the hearing, the court established a briefing schedule and

counsel submitted an additional amended petition on November 4, 2013,

and the Commonwealth filed an answer to that petition on November 20,



and supporting opinion.

provide accurate contact information precluded trial counsel from being able


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incredible. The court further discussed that Mr



advancing an alibi defense were reasonable.

        Appellant timely appealed and the court directed him to file and serve

a Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal.

Appellant complied, but counsel therein indicated that he would be seeking
                                                                   4



        Accordingly, Appellant filed a petition to withdraw and Anders brief.

As we                  [t]he Turner/Finley decisions provide the manner for

post-                                                        Commonwealth

v. Rykard, 55 A.3d 1177, 1184 (Pa.Super. 2012).        In order to withdraw,

counsel must conduct an independent review of t                              -



each issue the petitioner wishes to raise and why those issues are meritless.

Id. Where the no-merit letter or brief is filed with this Court, we then must

                                                              and agree with

                                                 Id.
____________________________________________


4
   Pa.R.A.P. 1925(c)(4) allows attorneys during criminal direct appeals to
indicate that they will be filing an Anders brief. There, however, is no
analogous provision specific to PCRA appeals, which though governed by
criminal procedural rules are considered civil. Whether Rule 1925(c)(4)
extends to PCRA counsel withdrawals has yet to be considered in a published
decision.



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       Additionally,

client his no-merit letter and application to withdraw along with a statement

that if the court granted counsel's withdrawal request, the client may

proceed pro se or with a privately retained attorn              Id.   Counsel has

complied with these directives.5 Accordingly, we proceed to independently



not entitle him to relief.

                                               Anders              the PCRA court

err by failing to find that trial counsel provided ineffective assistance by

                                                            Anders brief at 4. In

order to demonstrate that counsel was ineffective a petitioner must show:

       hat the underlying issue has arguable merit; (2) counsel's actions

lacked an objective reasonable basis; and (3) actual prejudice resulted from

counsel's act or failure to act. Where the petitioner fails to meet any aspect

                                       Commonwealth v. Henkel, 90 A.3d 16,

30 (Pa.Super. 2014) (en banc).



                                           Id. at 20. In conducting this review we
____________________________________________


5
  Counsel initially failed to supply Appellant with a statement that he could
proceed pro se or with privately hired counsel. See Commonwealth v.
Doty, 48 A.3d 451 (Pa.Super. 2012). Accordingly, this Court issued an
order on April 25, 2014, directing counsel to so notify Appellant and file a
copy of that notification with this Court. Counsel complied, and Appellant
has not filed a resp



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examine                                                                    Id.



court and will not disturb those findings unless they have no support in the

          Id.                                                           if it is

                                                               Id. Of course,



petitioner raises questions of law, our standard of review is de novo and our

scope of review              Id.

                                                                           the

petitioner must prove: (i) the witness existed; (ii) the witness was available

to testify; (iii) counsel knew of, or should have known of, the existence of

the witness; (iv) the witness was willing to testify; and (v) the absence of

the testimony was so prejudicial as to have denied the defendant a fair trial.

Commonwealth        v.   Chmiel,   30    A.3d   1111,   1143    (Pa.   2011);

Commonwealth v. Cox, 983 A.2d 666, 692 (Pa. 2009).



determination that trial counsel acted reasonably in not proffering an alibi

defense. Instantly, the PCRA court found that Mr. Steel was not credible in

his testimony and that, by providing inaccurate information to trial counsel,

it prevented her from using him as a witness.            It also ruled that

Mrs.




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conducted an investigation into other potential alibi witnesses.          That

investigation did not reveal any helpful witnesses who were willing to testify.



factual findings.    Since trial counsel had a reasonable basis for not

presenting an alibi defense, Appella

merit and he is not entitled to relief.

      Order affirmed.     Petition of Christopher P. Lyden, Esq. to withdraw

granted.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/13/2014




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