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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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.                   :
                                         :
JOSEPH E. LONGO, JR.,                    :         No. 2505 EDA 2016
                                         :
                         Appellant       :


                    Appeal from the PCRA Order, July 8, 2016,
                 in the Court of Common Pleas of Wayne County
                Criminal Division at No. CP-64-CR-0000015-2012


BEFORE: BENDER, P.J.E., RANSOM, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                    FILED MAY 15, 2017

        Joseph E. Longo, Jr., appeals from the order of July 8, 2016, denying

his PCRA1 petition. Appointed counsel, Oressa P. Campbell, Esq., has filed a

petition to withdraw.     After careful review, we affirm the order denying

appellant PCRA relief and grant the petition to withdraw as counsel.

        The underlying facts of this case, which are not germane to this

appeal, were set out by this court in a memorandum decision affirming

appellant’s judgment of sentence on direct appeal.       Commonwealth v.

Longo, No. 1363 EDA 2013, unpublished memorandum at 1-3 (Pa.Super.

filed March 3, 2014).2 Following a non-jury trial, appellant was found guilty



1
    Post-Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546.
2
    Commonwealth v. Longo, 100 A.3d 292 (Pa.Super. 2014).
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of one count each of aggravated indecent assault of a child and indecent

assault -- complainant less than 13 years of age.3 The charges related to

appellant’s sexual assault of the 6-year-old victim, A.R. On April 4, 2013,

appellant was sentenced to an aggregate of 10 to 20 years’ imprisonment.

Appellant did not file post-sentence motions, but did file a timely direct

appeal.    On March 3, 2014, this court affirmed the judgment of sentence.

Id.     Appellant did not file a petition for allowance of appeal with the

Pennsylvania Supreme Court.

        On March 2, 2015, appellant filed a timely pro se PCRA petition.

Counsel was appointed and filed several amended petitions on appellant’s

behalf.    On June 20, 2016, an evidentiary hearing was held, at which

appellant and trial counsel, Alfred G. Howell, Esq., testified.           On July 8,

2016, appellant’s petition was denied. This timely appeal followed.

        In her brief on appeal, Attorney Campbell has raised the following

issues for this court’s review:

              I.     Are there any non-frivolous issues preserved
                     for appeal?

              II.    Whether the Trial Court erred in determining
                     that Trial Counsel did not render ineffective
                     assistance    of    counsel    and    that no
                     Constitutional violations occurred[?]

              III.   Whether the Trial Court erred in determining
                     that the Appellant failed to establish that an
                     actual conflict of interest adversely affected his
                     lawyer’s performance[?]

3
    18 Pa.C.S.A. §§ 3125(a)(1), (b), & 3126(a)(7), respectively.


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               IV.     Whether the Trial Court erred in determining
                       that the Appellant failed to state why the filing
                       of the pretrial motions would have affected the
                       outcome of the case[?]

               V.      Whether the Trial Court erred        in determining
                       that the Appellant failed to         show how his
                       understanding of a [written]         waiver [of his
                       right to a] jury trial was           constitutionally
                       impaired by his trial counsel[?]

Appellant’s brief at 5.

       Initially, we note that Attorney Campbell has filed an Anders brief

rather than a Turner/Finley “no-merit” letter. Anders v. California, 386

U.S. 738 (1967); Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988);

Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc). On

an appeal from the denial of a PCRA petition, a Turner/Finley letter is the

appropriate filing. However, we may accept an Anders brief instead. See

Commonwealth v. Fusselman, 866 A.2d 1109, 1111 n.3 (Pa.Super.

2004), appeal denied, 882 A.2d 477 (Pa. 2005) (“[B]ecause an Anders

brief provides greater protection to the defendant, we may accept an

Anders        brief   in    lieu   of   a   Turner/Finley        letter.”).      See   also

Commonwealth               v.   Santiago,   978   A.2d     349     (Pa.    2009)   (guiding

Pennsylvania courts’ application of Anders).               Despite counsel’s error, we

find   that     she    has      substantially   complied    with     the      Turner/Finley

requirements.         Hence, we overlook her procedural misstep.                In addition,

Attorney Campbell has attached a copy of the letter to appellant advising



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him of counsel’s intention to withdraw and of his rights going forward.

(“Anders Brief,” Appendix B.) See Commonwealth v. Friend, 896 A.2d

607, 615 (Pa.Super. 2006) (“PCRA counsel must contemporaneously forward

to the petitioner a copy of the application to withdraw, which must include

(i) a copy of both the ‘no-merit’ letter, and (ii) a statement advising the

PCRA petitioner that, in the event the [] court grants the application of

counsel to withdraw, the petitioner has the right to proceed pro se, or with

the assistance of privately retained counsel” (footnote omitted)). Appellant

has not responded to Attorney Campbell’s petition to withdraw.

           This Court’s standard of review regarding an order
           denying a petition under the PCRA is whether the
           determination of the PCRA court is supported by the
           evidence of record and is free of legal error.
           Commonwealth v. Halley, 582 Pa. 164, 870 A.2d
           795, 799 n. 2 (2005). The PCRA court’s findings will
           not be disturbed unless there is no support for the
           findings in the certified record. Commonwealth v.
           Carr, 768 A.2d 1164, 1166 (Pa.Super.2001).

Commonwealth v. Turetsky, 925 A.2d 876, 879 (Pa.Super. 2007),

appeal denied, 940 A.2d 365 (Pa. 2007).

           [W]e begin with the presumption that counsel was
           effective.     A claimant establishes ineffective
           assistance of counsel when he demonstrates that
           [1] the underlying claim is of arguable merit;
           [2] that counsel’s action or inaction was not
           grounded on any reasonable basis designed to
           effectuate the appellant’s interest; and finally,
           [3] that counsel’s action or inaction was prejudicial
           to the client. For an action (or inaction) by counsel
           to be considered prejudicial to the client, there must
           be a reasonable probability that the outcome of the
           proceedings would have been different. All three


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            prongs of this test must be satisfied. If an appellant
            fails to meet even one prong of the test, his
            conviction will not be reversed on the basis of
            ineffective assistance of counsel.

Commonwealth v. O’Bidos, 849 A.2d 243, 249 (Pa.Super. 2004), appeal

denied, 860 A.2d 123 (Pa. 2004) (citations and internal quotation marks

omitted).

     In his first issue on appeal, appellant claims that trial counsel,

Attorney Howell, had a conflict of interest because he was employed as a

solicitor for Wayne County Children and Youth Services (“CYS”). Appellant

was investigated by CYS for the same allegations that led to the criminal

charges in this case. Appellant argues that it was a conflict of interest for

trial counsel to have simultaneously represented both CYS and appellant.

            In Commonwealth v. Buehl, 510 Pa. 363, 508
            A.2d 1167 (1986), we stated:

                  it is true that prejudice is presumed
                  when counsel is burdened by an actual
                  conflict of interest, this is only if the
                  defendant demonstrates that counsel
                  “actively     represented      conflicting
                  interests” and “that an actual conflict of
                  interest adversely affected his lawyer’s
                  performance.” Cuyler v. Sullivan, 446
                  U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d
                  333[ ](1980).

Commonwealth v. Hawkins, 787 A.2d 292, 297 (Pa. 2001).

     Attorney Howell testified that he was employed by Wayne County but

had little involvement with CYS at that time. (Notes of testimony, 6/20/16

at 30.) He did not know why his name appeared on CYS’ letterhead. (Id.)


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Attorney Howell testified that he had no knowledge of CYS’ investigation into

the allegations against appellant.       (Id. at 32-33.)   The only information

Attorney Howell received from CYS was in his capacity as appellant’s

attorney. (Id.) The PCRA court found Attorney Howell’s testimony in this

regard to be credible.       (PCRA court opinion, 7/8/16 at 4.)       Therefore,

appellant failed to establish an actual conflict of interest and the issue lacks

arguable merit.

      In his second issue on appeal, appellant argues that trial counsel was

ineffective for failing to file any pre-trial motions other than a routine motion

for a continuance. Appellant alleges that trial counsel failed to file a motion

for discovery, bill of particulars, or an omnibus pre-trial motion. However,

appellant offered no evidence to demonstrate that he requested any pre-trial

motions be filed on his behalf or how such filings would have affected the

outcome of his case.        At the PCRA hearing, appellant complained that

Attorney Howell failed to get a copy of the CYS investigation report. (Notes

of testimony, 6/20/16 at 9-11.)            However, the CYS report made an

“Indicated” finding of substantial evidence of child sexual abuse. (Id. at 18,

21; Exhibit D-3.)        The CYS report was not exculpatory.            Without

demonstrating how he was prejudiced by trial counsel’s alleged error in

failing to file pre-trial motions, the claim fails.




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      Next, appellant maintains that trial counsel was ineffective for failing

to ensure that his waiver of his right to a jury trial was done so voluntarily,

knowingly, and intelligently.

            In all cases, the defendant and the attorney for the
            Commonwealth may waive a jury trial with approval
            by a judge of the court in which the case is pending,
            and elect to have the judge try the case without a
            jury. The judge shall ascertain from the defendant
            whether this is a knowing and intelligent waiver, and
            such colloquy shall appear on the record. The waiver
            shall be in writing, made a part of the record, and
            signed by the defendant, the attorney for the
            Commonwealth, the judge, and the defendant’s
            attorney as a witness.

Pa.R.Crim.P. 620.

            The essential elements of a jury waiver, though
            important and necessary to an appreciation of the
            right, are nevertheless simple to state and easy to
            understand. “The[] essential ingredients, basic to
            the concept of a jury trial, are the requirements that
            the jury be chosen from members of the community
            (a jury of one’s peers), that the verdict be
            unanimous, and that the accused be allowed to
            participate in the selection of the jury panel.”
            Commonwealth v. Williams, 454 Pa. 368, 312
            A.2d 597, 600 (1973); accord Commonwealth v.
            Smith, 498 Pa. 661, 450 A.2d 973, 974 (1982).
            Notwithstanding the Rule’s reference to a “colloquy
            on the record,” the use of a written jury trial waiver
            form has been deemed sufficient in the absence of
            an oral jury trial waiver colloquy. Williams, 312
            A.2d at 599-600 (rejecting request for per se
            prophylactic rule requiring relief whenever Rule 1101
            (predecessor to Rule 620) is violated; if other
            evidence proves waiver was knowing and voluntary,
            purpose of Rule is served); Smith, 450 A.2d at 974
            (written waiver form “must be accorded prima facie
            validity”).



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Commonwealth v. Mallory, 941 A.2d 686, 696-697 (Pa. 2008), cert.

denied, 555 U.S. 884 (2008).      “[T]o prove trial counsel ineffective, each

appellant must show that his understanding of the written waiver was

constitutionally impaired by his lawyer’s deficient performance, as well as

proof that he would have elected a jury but for his lawyer’s performance.”

Id. at 702.

     Instantly, appellant claims that trial counsel failed to fully explain his

rights regarding a jury trial.   (Notes of testimony, 6/20/16 at 15-16.)

However, the record contains a written waiver of appellant’s right to a jury

trial, signed by appellant, Attorney Howell, the assistant district attorney,

and the trial judge. (Commonwealth’s exhibit 2.) Attorney Howell testified

that he reviewed the written waiver with appellant.     (Notes of testimony,

6/20/16 at 34.) Attorney Howell testified that he and appellant thoroughly

discussed the issue and that appellant “was adamant and was definite,

100% on his decision, I want to have a non-jury trial.” (Id. at 31.) There is

nothing in the record to indicate that appellant’s understanding of the

written waiver form was impaired by trial counsel’s allegedly deficient

performance. Therefore, the claim lacks arguable merit.




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      Finally, appellant argues that trial counsel was ineffective for failing to

call Father William Langan as a witness.4

            To prove that counsel was ineffective for not
            presenting certain witnesses, a defendant “must
            establish the existence of and the availability of the
            witnesses, counsel’s actual awareness, or duty to
            know, of the witnesses, the willingness and ability of
            the witnesses to cooperate and appear on the
            defendant’s behalf and the necessity for the
            proposed testimony in order to avoid prejudice.”
            Commonwealth v. Whitney, 550 Pa. 618, 708
            A.2d 471, 480 (1998) (citing Commonwealth v.
            Wilson, 543 Pa. 429, 672 A.2d 293, 298 (1996)).

Commonwealth v. Spotz, 896 A.2d 1191, 1219 (Pa. 2006).

      Appellant failed to establish that Father Langan was available and

willing to testify on his behalf. Attorney Howell testified at the PCRA hearing

that Father Langan, a prospective character witness, was reluctant to testify

and was unavailable.      (Notes of testimony, 6/20/16 at 29.)         Appellant

essentially conceded that Father Langan was unavailable to testify at trial,

testifying that Father Langan was subpoenaed but “[i]t was a little too late.”

(Id. at 12.) At any rate, appellant presented no evidence showing that the

absence of Father Langan’s testimony was so prejudicial as to deny him a




4
 This issue was not raised in counsel’s brief on appeal but was raised in the
PCRA court and addressed by the PCRA court in its opinion and order
denying appellant’s petition. (PCRA court opinion, 7/8/16 at 4-5.) In
accordance with our scope of review in PCRA appeals where counsel has
petitioned to withdraw, we shall address it.


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fair trial or that the outcome would have been different.         (PCRA court

opinion, 7/8/16 at 5.) This claim fails.5

      Having conducted an independent review of the entire record, this

court is satisfied that the issues raised in appellant’s petition are meritless

and that the PCRA court did not err in denying appellant’s petition.

Accordingly, we will grant Attorney Campbell’s petition to withdraw and

affirm the order denying appellant’s PCRA petition.

      Petition to withdraw granted. Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 5/15/2017




5
  Father Langan was not called as a witness at the PCRA hearing, nor did
appellant comply with 42 Pa.C.S.A. § 9545(d)(1) (where a petitioner
requests an evidentiary hearing, the petition must include a signed
certification as to each intended witness and the petitioner must also provide
the witness’ name, address, date of birth, and the substance of the proposed
testimony). Therefore, it is unknown what Father Langan would have
testified to at trial.


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