J-S20033-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA                :   IN THE SUPERIOR COURT OF
                                             :         PENNSYLVANIA
                    Appellee                 :
                                             :
              v.                             :
                                             :
 DAVID ROLAND SNYDER                         :
                                             :
                    Appellant                :      No. 1454 WDA 2018

          Appeal from the PCRA Order Entered September 6, 2018
              In the Court of Common Pleas of Potter County
           Criminal Division at No(s): CP-53-CR-0000020-2011


BEFORE: GANTMAN, P.J.E., McLAUGHLIN, J., and MUSMANNO, J.

MEMORANDUM BY GANTMAN, P.J.E.:                      FILED JANUARY 13, 2020

      Appellant, David Roland Snyder, appeals from the order entered in the

Potter County Court of Common Pleas, which denied his petition brought

pursuant to the Post-Conviction Relief Act (“PCRA”), at 42 Pa.C.S.A. §§ 9541-

9546. We affirm and grant counsel’s petition to withdraw.

      A previous decision of this Court set forth the relevant facts and

procedural history of the case as follows:

            During the preliminary hearing, the Commonwealth
            provided evidence establishing that an undercover
            state police officer made purchases of various
            quantities of drugs from Dustin Hurlburt and that Mr.
            Hurlburt and others were supplied with drugs by
            [Appellant] and that these individuals then distributed
            the drugs in Potter County. The Commonwealth
            provided further testimony from Jorge Stuart as well
            as other witnesses to support the allegation that
            [Appellant] was involved in a conspiracy to distribute
            cocaine in Potter County between December 2005 and
            November [2009].
J-S20033-19



          Specifically, undercover Pennsylvania State Trooper,
          Nicholas J. Madigan, testified that on December 15,
          2005, January 11, 2006, February 20, 2006, and April
          21, 2006[,] he purchased cocaine from [c]o-
          defendant Dustin Hurlburt in Ulysses, Potter County,
          Pennsylvania.      Dustin Hurlburt also testified and
          confirmed that he did, in fact, ma[k]e four sales of
          cocaine to Trooper Madigan and that the drugs were
          obtained from [Appellant].       Dustin Hurlburt also
          testified that [Appellant] was aware that Mr. Hurlburt
          was selling the cocaine and that he purchased cocaine
          from [Appellant] approximately 60 times.            Mr.
          Hurlburt further testified that two other dealers were
          receiving cocaine from [Appellant] and were likewise
          selling it in Potter County. Mr. Hurlburt accompanied
          [Appellant] to New Jersey on two to three occasions
          to pick up the drugs from [Appellant’s] supplier, Jorge
          Stuart.

          Eric Luce testified that he accompanied [Appellant] to
          New Jersey or went alone on behalf of [Appellant]
          approximately 75 to 100 times to retrieve cocaine
          from the distributor in New Jersey. When the cocaine
          was brought back to [Appellant’s] home [in
          Whitesville, New York], he would weigh and distribute
          the drugs. Mr. Luce lived primarily in Genesee, Potter
          County, Pennsylvania and would often receive an
          ounce of cocaine for making the trip to New Jersey.
          Subsequently, [Mr.] Luce would use or sell the
          cocaine. Mr. Luce testified that approximately 10-15
          individuals were distributing drugs obtained from
          [Appellant]. Mr. Luce recounts car trips to New Jersey
          to retrieve the drugs would necessitate driving
          through Tioga County, Pennsylvania which is adjacent
          to Potter County.

          Co-defendant Jorge Stuart testified that [Appellant] or
          his associates came to pick up drugs supplied by him
          in New Jersey once per month from 2002 until 2009.
          Mr. Stuart further testified that [Appellant] told him
          that he was selling drugs “up here.” As to Mr. Stuart’s
          reference to “up here,” the [trial c]ourt notes the
          preliminary hearing took place at the Magisterial

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J-S20033-19


            District Judge Delores Bristol’s office in Galeston,
            Potter County, Pennsylvania.

         Following the preliminary hearing, the…charges were bound
         over to the Potter County Court of Common Pleas. On April
         4, 2011, Appellant filed an omnibus pretrial motion to quash
         the criminal information arguing the Commonwealth failed
         to make a prima facie showing that Appellant delivered or
         possessed a controlled substance or otherwise engaged in
         criminal conduct or conducted an unlawful financial
         transaction within the Commonwealth, specifically Potter
         County. Thus, Appellant argued that the trial court lacked
         subject matter jurisdiction to hear the criminal matters at
         issue. The trial court heard argument on the motion on May
         2, 2011. In an opinion and order filed on July 7, 2011, the
         trial court denied relief. The trial court determined that
         “there existed an implicit conspiracy between [Appellant],
         Mr. Hurlburt and others to distribute cocaine in Potter
         County.”     Thus, the trial court opined “[Appellant] is
         vicariously liable as a coconspirator for the actions of Mr.
         Hurlburt or others.”

Commonwealth v.         Snyder,    503    WDA    2012,   2013    WL   11254800.

unpublished memorandum at 1-3 (Pa.Super. filed August 28, 2013) (quoting

Trial Court Opinion, filed July 7, 2011, at 1-3) (internal citations and footnotes

omitted)). A two-day jury trial began on October 17, 2011.

         During the trial, the Commonwealth presented the
         testimony of Dustin Hurlburt, Gabriel Barber, Adam
         Johnson, Gregory Lampman, Wayne Hess, Kenneth
         Davenport and Ryan Schrader who all relayed that within
         the relevant time frame, December of 2005 until November
         of 2009, they had received a vast amount of cocaine and/or
         heroin    from   [Appellant]…initially at    his  Ulysses,
         Pennsylvania residence and subsequently in Whitesville,
         New York and then consumed and/or sold said drugs in
         Potter County, Pennsylvania.

         Specifically, Dustin Hurlburt testified that from 2004 until
         2007 he had received cocaine from [Appellant]
         approximately sixty times ranging in the amount of three

                                      -3-
J-S20033-19


       and one-half grams to two ounces on each transaction for
       the purpose of selling the cocaine in Potter County. Mr.
       Hurlburt personally conducted four transactions in Potter
       County wherein he sold cocaine [he] had received from
       [Appellant] to Trooper Nicholas Madigan of the Pennsylvania
       State Police, who was working undercover at the time. The
       four transactions between Trooper Madigan and Dustin
       Hurlburt are represented as Counts I through IV on the
       Criminal Information.

       Gabriel Barber testified that…between 2004 or 2005 up until
       the end of 2006 or 2007 he had received cocaine from
       [Appellant] at both [Appellant’s] residence in Ulysses and in
       Whitesville and further testified that at times [Appellant]
       would bring the cocaine to Mr. Barber’s residence in Ulysses,
       Potter County, Pennsylvania. Mr. Barber further relayed
       that he sold the cocaine in the Ulysses, Potter County area.

       Adam Johnson testified that he began receiving cocaine
       from [Appellant] in 2002 and began selling the cocaine he
       received in 2004 or 2005 up until 2007. Mr. Johnson further
       relayed that he visited [Appellant] two to three times a week
       where he would receive anywhere from one-eighth of an
       ounce, or an “eight ball,” to an ounce of cocaine and that
       overall he estimates he received over twelve ounces of
       cocaine from [Appellant]. He would sell the cocaine in
       Northern Potter County. Mr. Johnson stated that [Appellant]
       was aware [Mr. Johnson] was selling the cocaine in Potter
       County.

       Adam Johnson further testified he began selling heroin
       supplied by [Appellant] in 2006 or 2007 and indicated that
       on one occasion [Appellant] had approximately forty-four
       grams of heroin.

       Gregory Lampman testified that he began receiving cocaine
       from [Appellant] for personal use in 2004 and later began
       to receive over an ounce and was selling the cocaine to three
       or four people in the Coudersport, Potter County area and
       further indicated that [Appellant] would deliver cocaine to
       him personally at his home in Ulysses, Potter County,
       Pennsylvania. Mr. Lampman further relayed that he had
       given [Appellant] $14,000.00 in cash at his home in
       Whitesville for the purposes of buying cocaine. In return for

                                   -4-
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       this money, Mr. Lampman received five ounces of cocaine
       collectively from [Appellant] on three separate occasions.

       Wayne Hess, resident of Westfield, Pennsylvania, testified
       that he purchased cocaine from [Appellant] in amounts
       ranging from one-eighth of an ounce to an ounce
       approximately twenty to thirty times between 2000 and
       2008.

       Kenneth Davenport testified that between 2005 and 2007,
       he purchased cocaine from [Appellant] ranging from [one-
       eighth of an ounce] to an ounce approximately once a
       month…. Mr. Davenport relayed that he began purchasing
       cocaine from [Appellant] at his home in Ulysses, Potter
       County and later in Independence and Whitesville, New
       York.

       Ryan Schrader testified that for approximately eighteen
       months to two years between 2004 and 2006, he would
       receive cocaine from [Appellant]. Mr. Schrader testified he
       received the cocaine directly at [Appellant’s] residence and
       that sometimes [Appellant] would drop off the cocaine at
       Mr. Schrader’s residence in Ulysses, Potter County,
       Pennsylvania. Mr. Schrader further relayed that during this
       period he purchased cocaine in amounts ranging from one-
       half ounce to four ounces and he, in turn, distributed the
       cocaine in both Pennsylvania and New York. Mr. Schrader
       also testified that he would occasionally deliver cocaine on
       behalf of [Appellant] to Dustin Hurlburt in Ulysses, Potter
       County, Pennsylvania.

                               *    *    *

       … During the trial, the Commonwealth presented the
       testimony of Eric Luce who relayed that within the relevant
       time frame, beginning in 2007, until his son was born in
       November of [2009], he had received approximately thirty
       grams of heroin over approximately forty to fifty
       transactions from [Appellant] at his home in Whitesville,
       New York for his own personal use. Also during the relevant
       time period, Adam Johnson testified that [Appellant] had
       provided him heroin to sell on several occasions and further
       observed a container of heroin he personally observed to
       weigh forty-four grams. Furthermore, Kenneth Davenport

                                   -5-
J-S20033-19


         testified that in 2007 he received from [Appellant] on two
         dozen occasions one to two grams of heroin for his personal
         use.

(Trial Court Opinion Rule 1925(a) Opinion, filed September 21, 2012, at 4-6,

and at 14). The jury convicted Appellant of 4 counts of delivery of a controlled

substance─cocaine, and 1 count each of possession with intent to deliver

(“PWID”) or delivery of a controlled substance─cocaine, PWID or delivery of a

controlled substance─heroin, conspiracy─cocaine delivery, conspiracy─heroin

delivery, and dealing in proceeds of unlawful activities.    The court initially

sentenced Appellant to an aggregate term of imprisonment of 34 to 68 years

on November 30, 2011. Appellant filed a timely post-sentence motion, and

on February 17, 2012, the trial court modified the sentence to an aggregate

term of 27 to 54 years’ incarceration.

         [Appellant] filed an appeal to the Superior Court on March
         13, 2012[,] which was decided by the Superior Court on
         August 28, 2013. Essentially [Appellant] had claimed that
         the [c]ourt had erred in failing to dismiss the case after
         hearing his Omnibus Pretrial Motion and after his Motion for
         Judgment of Acquittal. [Appellant] alleged that most if not
         all of the drug delivery crimes occurred in New York State
         and that he never dealt drugs in Pennsylvania. Accordingly,
         [Appellant] alleged that the [c]ourt lacked jurisdiction over
         him and that the amount of drugs for which he was
         convicted of distributing was not proven since there was no
         evidence of said drug distribution in Pennsylvania.
         Additionally, [Appellant] alleged the [c]ourt failed to merge
         the sentences but rather imposed a separate sentence for
         the each crime.      Finally [Appellant] asserted that the
         sentence imposed by the [c]ourt was in error and an abuse
         of discretion.

         On August 28, 2013, the Superior Court issued its decision
         after considering five arguments espoused by [Appellant],

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J-S20033-19


          three of which are relevant in the subject PCRA. First as to
          whether a Judgment of Acquittal should have been granted
          the Superior Court found that the record supported the fact
          that [Appellant] had engaged in a narcotics distribution
          conspiracy spanning into Potter County, Pennsylvania and
          opined that no relief was warranted in that regard.
          Secondly, [Appellant] argued that the [c]ourt lacked
          jurisdiction over him since any crimes which he may have
          committed had occurred outside of Pennsylvania. Again the
          Superior Court determined that this claim lacked merit as it
          was akin to the first issue and there was ample evidence
          that [Appellant] and his co-conspirators delivered narcotics
          in Potter County, Pennsylvania. [Appellant’s] third issue
          dealt with a Rule 600 issue and is not relevant to the subject
          PCRA. [Appellant’s] fourth issue concerned the imposition
          of mandatory sentencing…which [was] based upon the
          quantities of drugs delivered. The Superior Court concluded
          that the record supported the claims asserted by the
          Commonwealth as to the amount of cocaine and heroin
          which [Appellant] was involved. Finally, [Appellant] claimed
          that Count 5 should have merged with Counts 1-4 for the
          purposes of sentencing. The Superior Court ultimately
          affirmed the judgment of sentence.[1]

          Thereafter on March 23, 2015, [Appellant] filed a PCRA
          [petition] and by joint stipulation the Commonwealth and
          [Appellant] agreed that the [c]ourt would impose a new
          sentence based upon the United States Supreme Court’s
          determination that the mandatory sentencing provisions
          were unconstitutional under Alleyne v. United States,
          [570 U.S. 99, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013)]. On
          October 22, 2015, [Appellant] was resentenced to 22 years
          and 9 months to 45 years and 6 months. The sentence
          imposed on each count was at the low end of the standard
          range.

          On November 23, 2015[, Appellant] again appealed to the
____________________________________________


1 Our Supreme Court denied Appellant’s petition for allowance of appeal on
March 24, 2014. Commonwealth v. Snyder, 83 A.3d 1079 (Pa.Super. 2013)
(unpublished memorandum), appeal denied, 624 Pa. 696, 87 A.3d 815
(2014).



                                           -7-
J-S20033-19


           Superior Court. In [Appellant’s] Statement of [Errors]
           Complained of on Appeal he averred that the [c]ourt
           imposed an illegal sentence since the jury should have
           determined the exact amount of drugs involved which said
           determination would then be used in preparing the
           sentencing guidelines.     [Appellant’s] counsel filed an
           Anders[2] brief and Petition to Withdraw asserting that the
           appeal lacked merit. On September 14, 2016, the Superior
           Court granted the Motion to Withdraw and affirmed the
           Judgment of Sentence.

           On September 13, 2017, [Appellant] filed the current PCRA
           [petition]. [Appellant] was appointed counsel by the [c]ourt
           and [Appellant’s] counsel filed an Amended PCRA Petition
           on February 12, 2018. On June 7, 2018, the [c]ourt held a
           hearing on [Appellant’s] PCRA [petition]. …

(PCRA Court Opinion, filed September 6, 2018, at 1-3).         The PCRA court

denied relief on September 6, 2018. Appellant timely filed a notice of appeal

on October 4, 2018. On October 11, 2018, the PCRA court ordered Appellant

to file a Rule 1925(b) statement. On November 1, 2018, counsel filed a Rule

1925(c)(4) statement of intent to file an “Anders brief.”

        On March 5, 2019, appellate counsel filed with this Court a petition to

withdraw representation and an “Anders” brief. In the context of a PCRA

petition and request to withdraw, however, the appropriate filing is a “no-

merit” letter/brief. Commonwealth v. Turner, 518 Pa. 491, 544 A.2d 927

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

banc). But see Commonwealth v. Fusselman, 866 A.2d 1109, 1111 n.3


____________________________________________


2   Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).



                                           -8-
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(Pa.Super. 2004), appeal denied, 584 Pa. 691, 882 A.2d 477 (2005) (stating

Superior Court will accept Anders brief in lieu of Turner/Finley no-merit

letter, where counsel seeks to withdraw on PCRA appeal).3

       “Before 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

immediately either pro se or with new counsel. Id. To withdraw, counsel

must assure this Court of counsel’s substantial compliance with these technical

requirements. Commonwealth v. Muzzy, 141 A.3d 509, 510-11 (Pa.Super.

2016).


____________________________________________


3 Rule 1925(c)(4) mentions only Anders and Santiago, which theoretically
relate to direct appeals. Nevertheless, Rule 1925(c)(4) is often utilized in
PCRA appeals also. No doubt we continue to see PCRA appellate briefs
designated as Anders briefs simply because the rule does not refer to Turner
and Finley.

                                           -9-
J-S20033-19


      Instantly, counsel filed an “Anders” brief on appeal and a petition to

withdraw as counsel. Although designated as an Anders brief, counsel’s brief

is a Turner/Finley brief. Counsel’s brief is limited in its discussion of the

issue on appeal but it incorporates via attachment the amended PCRA petition

and accompanying brief, which thoroughly discussed the issues Appellant

wished to raise and explained how the issues had no merit.        In counsel’s

petition to withdraw, counsel states that he sent Appellant another copy of the

PCRA brief, a copy of the petition to withdraw, and a letter advising Appellant

of his right to proceed immediately pro se or with private counsel to raise

additional points he deems worthy of review. Thus, appellate counsel has

substantially complied with the Turner/Finley requirements. See Muzzy,

supra; Karanicolas, supra.      Accordingly, we proceed to an independent

evaluation.    See Turner, supra at 494-95, 544 A.2d at 928-29 (stating

appellate court must conduct independent analysis and agree with counsel

that appeal is frivolous). Appellant has not responded to counsel’s brief and

petition.

      Counsel raises one issue in the Turner/Finley brief:

            WHETHER THE [PCRA] COURT          ERRED    IN   DENYING
            APPELLANT’S PCRA PETITION?

(Turner/Finley Brief at 3).

      Appellant argues the sentences imposed for counts one through four

(delivery of cocaine), for four individual sales, occurred between December

2005 and November 2009, while count five represented an aggregate charge

                                    - 10 -
J-S20033-19


for drug sales during the same period. Appellant contends separate sentences

for these convictions violated the double jeopardy clauses of the United States

and Pennsylvania Constitutions because count five covered the same time

period and the same crimes. Appellant contends the sentences on counts one

through four should have been subsumed in count five under the merger

doctrine.

      Appellant also avers his sentences at counts six and eight are illegal

because the Commonwealth did not establish Appellant had sold between 50

to 100 grams of heroin within Pennsylvania.             Appellant claims the

Commonwealth only proved Appellant sold 10 grams of heroin within

Pennsylvania, and his sentences at counts six and eight should be reduced

accordingly.

      Appellant submits appellate counsel was ineffective for failing to raise

on direct appeal these issues of double jeopardy (merger) as well as the illegal

sentences on counts six and eight.      Appellant concludes the sentences at

counts one through four should be vacated completely, the sentences at

counts six and eight should be vacated, and this Court should remand for

resentencing. We disagree.

      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, 109 (Pa.Super. 2011), appeal denied, 612 Pa. 687, 29 A.3d 795


                                     - 11 -
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(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, 515 (Pa.Super. 2007), appeal denied, 593 Pa. 754, 932 A.2d

74 (2007).     We give no similar deference, however, to the court’s legal

conclusions.   Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa.Super.

2012). Traditionally, credibility issues are resolved by the trier of fact who

had the opportunity to observe the witnesses’ demeanor. Commonwealth

v. Abu-Jamal, 553 Pa. 485, 527, 720 A.2d 79, 99 (1998), cert. denied, 528

U.S. 810, 120 S.Ct. 41, 145 L.Ed.2d 38 (1999). Where the record supports

the PCRA court’s credibility resolutions, they are binding on this Court. Id.

      To be eligible for relief under the PCRA, the petitioner must plead and

prove his conviction resulted from one or more of the grounds set forth in 42

Pa.C.S.A. § 9543; a petitioner must also plead and prove his allegation of

error has not been previously litigated or waived.        Commonwealth v.

Bridges, 584 Pa. 589, 594, 886 A.2d 1127, 1130 (2005) (citing 42 Pa.C.S.A.

§ 9543(a)(3)). “An issue has been previously litigated if the highest appellate

court in which the petitioner was entitled to review as a matter of right has

ruled on the merits of the issue.” Bridges, supra at 594, 886 A.2d at 1130

(citing 42 Pa.C.S.A. § 9544(a)(2)). “A claim previously litigated in a direct

appeal is not cognizable under the PCRA.” Commonwealth v. Hutchins,

760 A.2d 50, 55 (Pa.Super. 2000). Moreover,

         A PCRA petitioner cannot obtain PCRA review of previously
         litigated claims decided adversely to him in his direct appeal

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        simply by presenting those claims again in a PCRA Petition
        and setting forth new theories of relief in support thereof.
        The purpose of the PCRA is not to provide a defendant with
        a means of relitigating the merits of issues long since
        decided on direct appeal.

Id. (internal citations and quotation marks omitted).

     Merger of sentences is governed generally by Section 9765 of the

Sentencing Code, which provides:

        § 9765. Merger of sentences

        No crimes shall merge for sentencing purposes unless the
        crimes arise from a single criminal act and all of the
        statutory elements of one offense are included in the
        statutory elements of the other offense. Where crimes
        merge for sentencing purposes, the court may sentence the
        defendant only on the higher graded offense.

42 Pa.C.S.A. § 9765. See also Commonwealth v. Baldwin, 604 Pa. 34,

985 A.2d 830 (2009) (recognizing General Assembly’s prerogative to

determine when offenses merge for sentencing and rejecting claim that

Section 9765 elements test for merger violates federal double jeopardy

clause). The same-elements test “inquires whether each offense contains an

element not contained in the other; if not, they are the ‘same offence’ and

double jeopardy bars additional punishment and successive prosecution.”

Commonwealth v. Jackson, 10 A.3d 341, 345 (Pa.Super. 2010).                The

application of the same-elements test “requires a comparison of the elements

of the offenses to determine whether each offense requires proof of a fact

which the other does not.” Id.

     The   law   presumes    counsel   has   rendered   effective   assistance.

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

traditional analysis, to prevail on a claim of ineffective assistance of counsel,

a petitioner bears the burden to prove his claims by a preponderance of the

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

appeal denied, 596 Pa. 707, 940 A.2d 365 (2007).           The petitioner must

demonstrate: (1) the underlying claim is of arguable merit; (2) counsel had

no reasonable strategic basis for the asserted 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. Id. See also

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

reasonable probability is a probability that is sufficient to undermine

confidence in the outcome of the proceeding.” Commonwealth v. Spotz,

624 Pa. 4, 34, 84 A.3d 294, 312 (2014) (quoting Commonwealth v. Ali, 608

Pa. 71, 86-87, 10 A.3d 282, 291 (2010)). “Where it is clear that a petitioner

has failed to meet any of the three, distinct prongs of the…test, the claim may

be disposed of on that basis alone, without a determination of whether the

other two prongs have been met.” Commonwealth v. Steele, 599 Pa. 341,

360, 961 A.2d 786, 797 (2008).

      “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

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


                                     - 14 -
J-S20033-19


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 [a defendant] demonstrates
         that counsel’s chosen course of action had an adverse effect
         on the outcome of the proceedings. The defendant 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
         defendant 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 trafficked cocaine and heroin in Pennsylvania from

December 2005 to November 2009.               Appellant’s Co-defendant, Dustin

Hurlburt, made four individual sales of cocaine, provided by Appellant, to an

undercover officer. Witnesses at trial testified to the locations and quantity of

the drugs, which Appellant possessed and sold himself and through others. A

jury convicted Appellant of multiple offenses stemming from these events. On

direct appeal, Appellant argued, among other issues, that his sentence at

Count 6 was illegal because the Commonwealth could not prove he personally

                                     - 15 -
J-S20033-19


possessed or sold between 50 to 100 grams of heroin. This Court addressed

the issue and ultimately affirmed the judgment of sentence.

      The PCRA court analyzed Appellant’s “merger” claim as follows:

         It is true that Counts 1 [through] 5 each alleged a violation
         under 35 P.S. § 780-113(a)(30), however, each required
         proof of a different fact. Counts 1-4 required proof that
         [Appellant] delivered cocaine to Dustin Hurlburt in
         Whitesville, New York on four separate occasions:
         December 15, 2005; January 11, 2006; February 20, 2006;
         and April 21, 2006, respectively. Dustin Hurlburt then
         delivered the cocaine to an undercover officer in Potter
         County, Pennsylvania. Count 5, on the other hand, required
         proof that [Appellant] was part of a drug distribution
         enterprise between December of 2005 through [November]
         of 2009. Specifically, the Commonwealth alleged in Count
         5 that [Appellant], Mr. Hurlburt, and several others, on
         numerous occasions, traveled from [Appellant’s] home in
         Whitesville, New York to New Jersey to pick up large
         quantities of cocaine that [Appellant] would thereafter
         distribute to others to sell in Potter County, Pennsylvania.
         Several third parties were involved in this enterprise other
         than Dustin Hurlburt, which included, but were not limited
         to: Gabriel Barber, Adam [Johnson], Gregory Lampman,
         Wayne Hess, Kenneth Davenport, and Ryan Schrader.
         Though Mr. Hurlburt had alleged involvement in Count 5,
         Mr. Hurlburt testified that he purchased cocaine from
         [Appellant] approximately 60 times. The time frame in
         question for the delivery was also different, i.e.[,] December
         of 2005 through [November] of 2009. Therefore, the
         protections from Double Jeopardy under Article 1 were not
         violated because Counts 1-5 and merger of the sentences
         [were] not appropriate as each count required proof of a
         different fact. …

(PCRA Court Opinion at 6). The record supports the PCRA court’s analysis.

Counts 1 through 4 described four individual sales, by Mr. Hurlburt to an

undercover officer, of cocaine that Appellant had provided to Mr. Hurlburt.

Count 5 enveloped all other sales of cocaine, which multiple witnesses testified

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to at trial, from 2005 until 2009. Therefore, Counts 1 through 5 each required

proof of different facts, and those convictions did not violate the same-

elements test or subject Appellant to a double jeopardy violation at

sentencing. See Jackson, supra.

      On direct appeal regarding a legality of sentence challenge for Count 6,

PWID or delivery of heroin, this Court explained, “The Commonwealth

provided sufficient circumstantial evidence that Appellant sold over 50 grams

of heroin[.]” Snyder, supra at 21. Count 8 was the conspiracy conviction

for PWID or delivery of heroin, related to the possession and distribution of 50

to 100 grams of heroin in Count 6. Appellant is merely presenting with a new

spin the same challenge to the aggregate weight of heroin.            Therefore,

Appellant’s challenge to the legality of his sentences at Counts 6 and 8 has

already been litigated. See Bridges, supra; Hutchins, supra; 42 Pa.C.S.A.

§ 9543(a)(3) (stating to be eligible for relief under PCRA, petitioner must plead

and prove by preponderance of evidence that allegation of error has not been

previously litigated or waived).

      Finally, Appellant’s claims of ineffective assistance of direct appeal

counsel fail because the claims lack arguable merit. Therefore, direct appeal

counsel cannot be found ineffective. See Poplawski, supra. Following an

independent review of the record, we agree with counsel that the appeal is

frivolous. Accordingly, we affirm and grant counsel’s petition to withdraw.

      Order affirmed. Counsel’s petition to withdraw is granted.


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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/13/2020




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