J-S43037-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

ROBERT JOHN PRETTI

                            Appellant                  No. 3390 EDA 2014


                Appeal from the PCRA Order October 27, 2014
              In the Court of Common Pleas of Delaware County
             Criminal Division at No(s): CP-23-CR-0001851-2005;
                            CP-23-CR-0004226-2005


BEFORE: GANTMAN, P.J., PANELLA, J., and OLSON, J.

MEMORANDUM BY GANTMAN, P.J.:                     FILED SEPTEMBER 30, 2015

        Appellant, Robert John Pretti, appeals from the order entered in the

Delaware County Court of Common Pleas, which denied his first petition

brought pursuant to the Post Conviction Relief Act (“PCRA”).1 We affirm.

        In its opinion, the PCRA court fully and correctly sets forth the relevant

facts of this case as follows:

           On January 30, 2005, at approximately 6:43 p.m.,
           Pennsylvania State Trooper Louis Vitali was on patrol in
           Concord Township, Delaware County[,] Pennsylvania,
           when he observed a black male running across U.S. Route
           1 in what appeared to be a distressed manner. The black
           male ran directly in front of the Trooper’s patrol car and
           proceeded running in the direction of the Concordville Inn
           Restaurant. Trooper Vitali attempted to locate the black
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1
    42 Pa.C.S.A. §§ 9541-9546.
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        male, but was unsuccessful in this regard. At 7:10 [p.m.],
        members of the Pennsylvania State Police were dispatched
        to the Whitehall Apartment Complex to answer a call
        regarding an unresponsive person. Upon their arrival, they
        discovered a black male, later identified as Eric Oswald
        LaRoche, lying at the bottom of the steps in the front
        hallway entrance, face down in a small pool of blood, with
        a gunshot wound to the chest. Subsequently, a paramedic
        called to the scene pronounced the victim dead.

        While investigating the shooting, members of the
        Pennsylvania State Police Department conducted an
        investigation and observed a small hole in the middle of
        the door of Apartment 2A, which appeared to have been
        made by a small caliber bullet.           The State Troopers
        knocked on the door, but no one responded. The State
        Troopers gained access to the apartment to check on the
        safety and welfare of the occupants of the apartment, if
        any. Upon entry to the apartment, the State Troopers
        located in a closet, a .22 caliber rifle case and a box of .22
        caliber ammunition.        After securing the apartment, a
        Search Warrant was obtained and during the subsequent
        search, the State Troopers discovered a spent .22 caliber
        rifle shell casing, as well as cocaine, bagging material, a
        scale and other paraphernalia used in connection with the
        sale of illegal narcotics.

        Several days later, the State Troopers received a
        telephone call from Robert Keller, Esquire, indicating that
        he represented Appellant and further indicating that
        Appellant wanted to turn himself in and make a statement.
        Appellant did in fact turn himself in and after being read
        his Miranda Warnings, he made a statement admitting
        that he resided in apartment 2A and that on January 30,
        2005, he heard persons trying to gain entry through his
        front door. Consequently, he obtained his rifle and blindly
        shot through the front door.

(PCRA Court’s Opinion, filed January 28, 2015, at 1-2).         Appellant was

charged with murder, possession with intent to distribute (“PWID”), and

related offenses. Appellant filed an omnibus pretrial motion, which the court


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denied following a hearing. Thereafter, on April 26, 2007, Appellant filed a

petition to dismiss the charges due to a violation of Pa.R.Crim.P. 600. The

court conducted a hearing, and denied Appellant’s petition on May 17, 2007.

     On February 29, 2008, a jury convicted Appellant of third-degree

murder and PWID.        The court sentenced Appellant on May 27, 2008, to

fifteen (15) to thirty (30) years’ imprisonment for murder, and a consecutive

eight (8) to twenty (20) years’ imprisonment for PWID.           Appellant timely

filed a post-sentence motion, which the court denied. This Court affirmed

Appellant’s judgment of sentence on October 8, 2009, and our Supreme

Court denied allowance of appeal on May 18, 2010. See Commonwealth

v. Pretti, 987 A.2d 822 (Pa.Super. 2009), appeal denied, 606 Pa. 663, 995

A.2d 353 (2010).

     Appellant timely filed his first PCRA petition pro se on May 18, 2011.

The PCRA court appointed counsel, who filed an application to withdraw and

a “no-merit” letter pursuant to Commonwealth v. Turner, 518 Pa. 491,

544 A.2d 927 (1988) and Commonwealth v. Finley, 550 A.2d 213

(Pa.Super. 1988) (en banc). The PCRA court granted counsel’s application

to withdraw, and issued on September 17, 2014, a notice of intent to

dismiss Appellant’s petition without a hearing pursuant to Pa.R.Crim.P. 907.

Appellant   filed   a   pro   se   response,   which   alleged   PCRA   counsel’s

ineffectiveness. The PCRA court denied Appellant’s petition on October 27,

2014, and Appellant timely filed a notice of appeal. The PCRA court did not


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order Appellant to file a concise statement of errors complained of on appeal

pursuant to Pa.R.A.P. 1925(b), and Appellant filed none.

      Appellant raises the following issues for our review:

         DID THE PCRA COURT [ERR] IN SUMMARILY DISMISSING
         APPELLANT’S PETITION WHEN PCRA COUNSEL FAILED TO
         RAISE A MERITORIOUS CLAIM OF TRIAL COUNSEL’S
         INEFFECTIVENESS    FOR   NOT    REQUESTING    AN
         ACCOMPLICE “CORRUPT SOURCE” JURY INSTRUCTION
         PERTAINING TO COMMONWEALTH WITNESS BRIAN “LOU”
         DRIGGINS?

         DID THE PCRA COURT [ERR] IN SUMMARILY DISMISSING
         APPELLANT’S PETITION WHEN PCRA COUNSEL FAILED TO
         RAISE A MERITORIOUS CLAIM OF TRIAL COUNSEL’S
         INEFFECTIVENESS FOR FLIP-FLOPPING ON THE ACTUAL
         INNOCENCE DEFENSE DURING CLOSING SUMMATION?

         DID THE PCRA COURT [ERR] IN SUMMARILY DISMISSING
         APPELLANT’S PETITION WHEN PCRA COUNSEL’S “NO-
         MERIT” LETTER DID NOT MEET THE PREREQUISITES OF
         TURNER/FINLEY BECAUSE [PCRA] COUNSEL DID NOT
         MAKE THE NECESSARY THOROUGH REVIEW OF THE
         RELEVANT RECORD PERTAINING TO THE RULE 600
         CLAIM?

(Appellant’s Brief at 3).

      Our standard of review of the denial of a PCRA petition is limited to

examining    whether        the   evidence    of   record    supports    the     court’s

determination    and    whether      its     decision   is   free   of   legal    error.

Commonwealth v. Conway, 14 A.3d 101 (Pa.Super. 2011), appeal denied,

612 Pa. 687, 29 A.3d 795 (2011). This Court grants great deference to the

findings of the PCRA court if the record contains any support for those

findings. Commonwealth v. Boyd, 923 A.2d 513 (Pa.Super. 2007), appeal


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denied, 593 Pa. 754, 932 A.2d 74 (2007).         We give no such deference,

however, to the court’s legal conclusions.     Commonwealth v. Ford, 44

A.3d 1190, 1194 (Pa.Super. 2012). Further, a petitioner is not entitled to a

PCRA hearing as a matter of right; the PCRA court can decline to hold a

hearing if there is no genuine issue concerning any material fact, the

petitioner is not entitled to PCRA relief, and no purpose would be served by

any further proceedings.     Commonwealth v. Wah, 42 A.3d 335, 338

(Pa.Super. 2012).

      In issues one and two, Appellant argues PCRA counsel was ineffective

for failing to raise claims regarding trial counsel’s ineffectiveness. Appellant

alleges trial counsel was ineffective for failing to request an accomplice jury

instruction after the Commonwealth’s witness, Mr. Driggins, testified he and

the victim went to Appellant’s apartment to buy drugs, and that Mr. Driggins

was waiting outside when Appellant killed the victim. Appellant claims trial

counsel lacked any reasonable basis not to request this instruction following

Appellant’s testimony that Mr. Driggins, and not Appellant, killed the victim

while Mr. Driggins was in Appellant’s apartment.      Appellant contends trial

counsel’s ineffectiveness prejudiced Appellant because the jury was not

cautioned against placing too much blame on Appellant.          Appellant also

claims trial counsel was ineffective for changing Appellant’s defense strategy

of “actual innocence” when trial counsel argued in closing that Appellant

killed the victim in self-defense.    Appellant avers trial counsel lacked a


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reasonable basis to change Appellant’s defense strategy, which sabotaged

Appellant’s “actual innocence” testimony.       Appellant alleges he suffered

substantial prejudice because trial counsel’s closing argument of self-defense

conceded that Appellant had committed perjury when he testified that Mr.

Driggins had killed the victim. Appellant maintains PCRA counsel’s failure to

raise these claims in an amended PCRA petition constituted ineffective

assistance, and counsels’ actions adversely affected the outcome of the

proceedings. Appellant concludes we should vacate the PCRA court’s order,

and remand for a PCRA hearing with new counsel. We disagree.

      The   law   presumes    counsel   has   rendered    effective   assistance.

Commonwealth v. Williams, 597 Pa. 109, 950 A.2d 294 (2008).                When

asserting a claim of ineffective assistance of counsel, the petitioner is

required to demonstrate that: (1) the underlying claim is of arguable merit;

(2) counsel had no reasonable strategic basis for his action or inaction; and,

(3) but for the errors and omissions of counsel, there is a reasonable

probability that the outcome of the proceedings would have been different.

Commonwealth v. Kimball, 555 Pa. 299, 724 A.2d 326 (1999).                   The

failure to satisfy any prong of the test for ineffectiveness will cause the claim

to fail. Williams, supra.

      “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….” Commonwealth


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v. Pierce, 537 Pa. 514, 524, 645 A.2d 189, 194 (1994). “Counsel cannot

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

Commonwealth v. Poplawski, 852 A.2d 323, 327 (Pa.Super. 2004).

        Once this threshold is met we apply the ‘reasonable basis’
        test to determine whether counsel’s chosen course was
        designed to effectuate his client’s interests. If we conclude
        that the particular course chosen by counsel had some
        reasonable basis, our inquiry ceases and counsel’s
        assistance is deemed effective.

Pierce, supra at 524, 645 A.2d at 194-95 (internal citations omitted).

        Prejudice is established when [an appellant] demonstrates
        that counsel’s chosen course of action had an adverse
        effect on the outcome of the proceedings. The [appellant]
        must show that there is a reasonable probability that, but
        for counsel’s unprofessional errors, the result of the
        proceeding would have been different.             A reasonable
        probability is a probability sufficient to undermine
        confidence in the outcome. In [Kimball, supra], we held
        that a “criminal [appellant] alleging prejudice must show
        that counsel’s errors were so serious as to deprive the
        defendant of a fair trial, a trial whose result is reliable.”

Commonwealth v. Chambers, 570 Pa. 3, 21-22, 807 A.2d 872, 883

(2002) (some internal citations and quotation marks omitted).

     Instantly, Appellant’s claims regarding PCRA and trial counsels’

ineffectiveness lack merit. Appellant argues counsels’ ineffectiveness had an

adverse impact on the outcome of the proceedings. Nevertheless, Appellant

has not demonstrated that, but for trial and PCRA counsels’ alleged

ineffectiveness, there is a reasonable probability that the result of

Appellant’s proceedings would have been different. See Chambers, supra.

Appellant has failed to prove counsels’ actions or omissions caused Appellant

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any prejudice. See Kimball, supra. Therefore, Appellant’s issues one and

two merit no relief. See Williams, supra.

       In his final issue, Appellant argues PCRA counsel’s Turner/Finley “no-

merit” letter was deficient.2       Specifically, Appellant contends PCRA counsel

conducted an inadequate review of Appellant’s Rule 600 claim by failing to

request a transcript from the Rule 600 hearing. Appellant maintains PCRA

counsel’s representation was deficient because he was obligated to examine

all relevant records pertaining to Appellant’s Rule 600 issue before

submitting a Turner/Finley “no-merit” letter.            Appellant concludes we

should vacate and remand for a hearing with new counsel. We disagree.

       “[T]o succeed on an allegation of…counsel’s ineffectiveness…a post-

conviction petitioner must, at a minimum, present argumentation relative to

each layer of ineffective assistance, on all three prongs of the ineffectiveness

standard….”      Commonwealth v. D’Amato, 579 Pa. 490, 500, 856 A.2d

806, 812 (2004) (internal citations omitted).           “[A] petitioner does not

preserve a…claim of ineffectiveness merely by focusing his attention on

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2
  “[A]n appellate court may [not] sua sponte review the sufficiency of a no-
merit letter when the defendant has not raised such issue….”
Commonwealth v. Pitts, 603 Pa. 1, 9, 981 A.2d 875, 879 (2009)
(determining appellant failed to raise issue of PCRA counsel’s “no-merit”
letter after PCRA court issued Rule 907 notice). In the present case,
Appellant challenged the adequacy of PCRA counsel’s “no-merit” letter in his
response to the PCRA court’s Rule 907 notice. Therefore, our review of
PCRA counsel’s “no-merit” letter does not conflict with our Supreme Court’s
decision in Pitts.



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whether…counsel was ineffective. Rather, the petitioner must also present

argument as to how the second and third prongs of the Pierce test are met

with regard to the…claim.” Commonwealth v. Santiago, 579 Pa. 46, 69,

855 A.2d 682, 696 (2004).      “[A]n undeveloped argument, which fails to

meaningfully discuss and apply the standard governing the review of

ineffectiveness claims, simply does not satisfy [the petitioner’s] burden of

establishing that he is entitled to any relief.” Commonwealth v. Bracey,

568 Pa. 264, 273 n.4, 795 A.2d 935, 940 n.4 (2001).

      Moreover, “[b]efore an attorney can be permitted to withdraw from

representing a petitioner under the PCRA, Pennsylvania law requires

counsel to file and obtain approval of a ‘no-merit’ letter pursuant to the

mandates of Turner/Finley.” Commonwealth v. Karanicolas, 836 A.2d

940, 947 (Pa.Super. 2003) (emphasis in original).

         [C]ounsel must…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 the petitioner wants to have reviewed,
         explaining why and how those issues lack merit, and
         requesting permission to withdraw.

Commonwealth v. Wrecks, 931 A.2d 717, 721 (Pa.Super. 2007). Counsel

must also send to the petitioner a copy of the “no-merit” letter or brief and

petition to withdraw and advise the petitioner of his right to proceed pro se

or with new counsel. Id. “Substantial compliance with these requirements

will satisfy the criteria.” Karanicolas, supra.

      Here,   Appellant’s   argument   essentially   alleges   PCRA   counsel’s

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ineffectiveness    for   failure    to   comply    with      the   requirements    of

Turner/Finley. Appellant baldly asserts his right to effective assistance of

PCRA counsel. Nevertheless, Appellant does not attempt to apply the 3-part

standard governing the review of ineffectiveness claims.              See Kimball,

supra. Thus, Appellant has not established that he is entitled to any relief

on his claims. See Bracey, supra.

      Furthermore,       PCRA      counsel   substantially    complied   with     the

requirements of a Turner/Finley “no-merit” letter when he filed the letter

and application to withdraw as counsel with the PCRA court. PCRA counsel

stated he corresponded with Appellant and reviewed Appellant’s file and

available court records. PCRA counsel also listed the ineffective assistance

of counsel claim regarding Rule 600 that Appellant wished to raise, and

explained why the claim merits no relief.         PCRA counsel indicated that he

served Appellant with a copy of the “no-merit” letter and application to

withdraw, which notified Appellant of PCRA counsel’s request to withdraw

and provided an explanation of Appellant’s right to proceed pro se or with

private counsel.     Thus, PCRA counsel substantially complied with the

Turner/Finley requirements.          See Commonwealth v. Widgins, 29 A.3d

816 (Pa.Super. 2011) (holding PCRA counsel substantially complied with

Turner/Finley requirements to withdraw as counsel); Karanicolas, supra.

Accordingly, we affirm.

      Order affirmed.


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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/30/2015




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