J-S68022-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                       IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                            Appellee

                       v.

ENRIQUE JIMINEZ

                            Appellant                   No. 3467 EDA 2013


                 Appeal from the PCRA Order November 5, 2013
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0014598-2007


BEFORE: ALLEN, J., JENKINS, J., and MUSMANNO, J.

MEMORANDUM BY JENKINS, J.:                         FILED DECEMBER 12, 2014

        Appellant, Enrique Jiminez, appeals pro se from the order entered in

the Philadelphia County Court of Common Pleas, which dismissed his petition

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

        The trial court opinion sets forth the relevant facts and procedural

history of this appeal as follows.

           [On] March 20, 2007, […Appellant] shot and killed Mr. Luis
           ‘Chucky’ Alomar. Following [Appellant’s] waiver of his
           right to a jury trial, [Appellant] was tried by this [c]ourt in
           June of 2009, and at the conclusion of the trial, [Appellant]
           was found guilty of first-degree murder and [possessing an
           instrument of crime.2]       Sentencing was deferred until
           September 25, 2009, on which date concurrent sentences
           of life imprisonment and two and one-half to five years[’]
____________________________________________


1
    42 Pa.C.S. §§ 9541-9546.
2
    18 Pa.C.S. §§ 2502(a), 907(b), respectively.
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          imprisonment were imposed on [Appellant] on the first-
          degree    murder    charge     and    weapons     offense[,]
          respectively. [Appellant] filed [a] timely notice of appeal
          to the Superior Court on October 19, 2009.

          On December 2, 2010, the Superior Court affirmed the
          judgment of sentence.            On December 22, 2010,
          [Appellant] filed [a] petition for allowance of appeal to the
          Supreme Court, which was denied on May 4, 2011. On
          February 2, 2012, [Appellant] filed a petition under the
          [PCRA], and Stephen T. O'Hanlon, Esquire, was appointed
          as PCRA counsel for [Appellant]. On February 28, 2013,
          Mr. O'Hanlon filed a 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)], asserting that [Appellant’s] PCRA
          petition was without merit[,] following which this [c]ourt
          filed and sent [Appellant] notice pursuant to [Pa.R.Crim.P.
          907] of its [intention] to dismiss [Appellant’s] PCRA
          petition.[3]   On May 31, 2013, this [c]ourt dismissed
          [Appellant’s] PCRA petition. Inexplicably, a copy of the
          order denying [Appellant] PCRA relief was not sent to
          [Appellant,] and on October 28, 2013, [Appellant] filed a
          motion to have his appellate rights reinstated nunc pro
          tunc, asserting that he never received this [c]ourt's order
          dismissing his PCRA petition. On November 5, 2013, this
          [c]ourt granted [Appellant] the right to appeal the
          dismissal of [the] PCRA petition.

PCRA Court Pa.R.A.P. 1925(a) Opinion, filed December 9, 2013, at 1-2.
____________________________________________


3
   The court filed the Rule 907 notice on April 26, 2013. In his brief,
Appellant claims that he filed an objection to the notice on May 10, 2013.
However, this document does not appear in either the criminal docket or the
record.    “[A] petitioner waives issues of PCRA counsel's effectiveness
regarding Turner/Finley requirements if he declines to respond to the PCRA
court's notice of intent to dismiss.” Commonwealth v. Rykard, 55 A.3d
1177, 1186 (Pa.Super.2012), appeal denied, 64 A.3d 631 (Pa.2013)(internal
citations omitted). Although Appellant’s issues are arguably waived, we will
address them as if he timely filed an objection to the Rule 907 notice.



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      On November 20, 2013, Appellant timely filed a notice of appeal and a

concise statement of errors complained of on appeal, pursuant to Pa.R.A.P.

1925(b).

      Appellant raises the following issues for our review:

           WHETHER [THE] PCRA COURT ERRED AS A MATTER OF
           LAW IN PERMITTING COUNSEL TO WITHDRAW UPON A
           DEFICIENT TURNER/FINLEY NO MERIT LETTER?

           WHETHER PCRA COUNSEL FILED A DEFECTIVE NO MERIT
           LETTER THAT WAS BOTH FACTUALLY AND LEGALLY
           DEFICIENT?

Appellant’s Brief at 4.

      In his combined issues, Appellant argues his counsel’s no-merit letter

was both factually and legally deficient. Specifically, Appellant contends his

PCRA counsel did not properly review the record or raise all of Appellant’s

possibly valid claims in his no-merit letter. Appellant concludes his counsel’s

defective no merit letter entitles to him to PCRA relief, namely a new trial.

We disagree.

      Our standard of review is well-settled.     “In reviewing the denial of

PCRA relief, we examine whether the PCRA court’s determination is

supported by the record and free of legal error.” Commonwealth v. Fears,

86 A.3d 795, 803 (Pa.2014) (internal quotation marks and citation omitted).

“The 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 prevailing party

at the trial level.” Commonwealth v. Spotz, 84 A.3d 294, 311 (Pa.2014)
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(citation omitted).   “It is well-settled that a PCRA court’s credibility

determinations are binding upon an appellate court so long as they are

supported by the record.”   Commonwealth v. Robinson, 82 A.3d 998,

1013 (Pa.2013) (citation omitted).   However, this Court reviews the PCRA

court’s legal conclusions de novo. Commonwealth v. Rigg, 84 A.3d 1080,

1084 (Pa.Super.2014) (citation omitted).

     Our Supreme Court has explained the procedure required for court-

appointed counsel to withdraw from PCRA representation:

        [Turner and Finley] establish the procedure for
        withdrawal of court-appointed counsel in collateral attacks
        on criminal convictions. Independent review of the record
        by competent counsel is required before withdrawal is
        permitted. Such independent review requires proof of:

           1) A ‘no-merit’ letter by PCRA counsel detailing the
           nature and extent of his [or her] review;

           2) A ‘no-merit’ letter by PCRA counsel listing each
           issue the petitioner wished to have reviewed;

           3) The PCRA counsel’s ‘explanation’, in the ‘no-merit’
           letter, of why the petitioner’s issues were meritless;

           4) The PCRA court conducting its own independent
           review of the record; and

           5) The PCRA court agreeing with counsel that the
           petition was meritless.

Commonwealth v. Pitts, 981 A.2d 875, 876 n.1 (Pa.2009) (citations

omitted). In addition, this Court has required that PCRA counsel who seeks

to withdraw must:

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        contemporaneously serve a copy on the petitioner of
        counsel’s application to withdraw as counsel, and must
        supply the petitioner both a copy of the ‘no-merit’ letter
        and a statement advising the petitioner that, in the event
        the court grants the application of counsel to withdraw, he
        or she has the right to proceed pro se or with the
        assistance of privately retained counsel.

Commonwealth v. Friend, 896 A.2d 607, 614 (Pa.Super.2006) (emphasis

deleted). Further,

        [i]f 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. Commonwealth v.
        Mosteller, 633 A.2d 615, 617 (Pa.Super.1993). 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. Commonwealth v. Karanicolas,
        836 A.2d 940, 948 (Pa.Super.2003).

        However, where counsel submits a petition and no-merit
        letter that do satisfy the technical demands of
        Turner/Finley, the court—trial court or this 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. Mosteller, 633 A.2d at 617. By contrast, if the
        claims appear to have merit, the court will deny counsel's
        request and grant relief, or at least instruct counsel to file
        an advocate's brief.

Commonwealth v. Wrecks, 931 A.2d 717, 721-22 (Pa.Super.2007).

     Instantly, PCRA counsel complied with Turner and Finley.            His no-

merit letter details the nature and extent of his review by stating that he

“reviewed the Quarter Sessions file, reviewed all available Notes of

Testimony (NT) pertaining to the case, and reviewed the applicable law.”

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Finley Letter, filed February 28, 2013, p. 1. Counsel listed each of the six

issues Appellant wished to have reviewed, and explained, with an accurate

statement of the law, why each issue was meritless. Id. at 2-10. The PCRA

court then conducted its own independent review of the record and found

that Appellant’s “issues lacked merit and that PCRA counsel had no basis,

factual or legal, to file an amended petition.” PCRA Court Opinion at 4.

      Along with his “no-merit” letter, counsel filed a motion to withdraw and

supplied Appellant with a copy of the no-merit letter and a statement

advising Appellant that, in the event the court granted counsel’s application

to withdraw, he had the right to proceed pro se or with the assistance of

privately retained counsel.   Therefore, we conclude that PCRA counsel has

satisfied the requirements of Turner/Finley.

      Appellant raised six issues in his PCRA petition, all of which PCRA

counsel included in his Turner/Finley letter on appeal:

         [WHETHER] TRIAL COUNSEL WERE INEFFECTIVE IN THEIR
         FAILURE TO PRESENT THE EYEWITNESS TESTIMONY OF
         JUAN DELGADO, EVAN GOMEZ, AND ISMAEL FALU[?]

         [WHETHER] TRIAL COUNSEL WERE INEFFECTIVE FOR
         ENTERING   INTO  AN   AGREEMENT   WITH   THE
         COMMONWEALTH TO PERMIT THE TESTIMONY OF
         DETECTIVE AGAPITO OSANO FOR THE PURPOSE OF
         MOTIVE[?]

         [WHETHER] TRIAL COUNSEL WERE INEFFECTIVE FOR
         STIPULATING TO THE TESTIMONY OF DETECTIVE THOMAS
         GAUL AND FORENSIC SCIENTIST EMIRA GAMAL[?]


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          [WHETHER] TRIAL COUNSEL WERE INEFFECTIVE FOR
          FAILING TO REQUEST A RELIABILITY HEARING OF
          COMMONWEALTH’S PAID WITNESSES[?]

          [WHETHER] TRIAL COUNSEL WERE INEFFECTIVE FOR
          FAILING TO OBJECT TO THE EYEWITNESS TESTIMONY OF
          CRYSTAL LEON AND STEPHANIE ROSADO ON THE
          GROUNDS THAT IT WAS MORE PREJUDICIAL THAN
          PROBATIVE BECAUSE IT INTRODUCED PRIOR BAD ACT
          EVIDENCE[?]

          [WHETHER] PETITIONER IS ENTITLED TO A NEW TRIAL
          BECAUSE    THE     COMMONWEALTH       COMMITTED
          PROSECUTORIAL MISCONDUCT BY PRESENTING THE
          MENDACIOUS TESTIMONY OF CHRISTOPHER LEON[?]

Turner/Finley Letter, at 2-10.

       In the first five issues in his PCRA petition, Appellant argues his

counsel was ineffective. He concludes the ineffective assistance of counsel

entitles him to a new trial. We disagree.

       This Court follows the Pierce4 test adopted by our Supreme Court to

review claims of ineffective assistance of counsel:

          When a petitioner alleges trial counsel’s ineffectiveness in
          a PCRA petition, he must prove by a preponderance of the
          evidence that his conviction or sentence resulted from
          ineffective   assistance  of    counsel   which,    in   the
          circumstances of the particular case, so undermined the
          truth-determining process that no reliable adjudication of
          guilt or innocence could have taken place. We have
          interpreted this provision in the PCRA to mean that the
          petitioner must show: (1) that his claim of counsel’s
          ineffectiveness has merit; (2) that counsel had no
          reasonable strategic basis for his action or inaction; and
____________________________________________


4
    Commonwealth v. Pierce, 527 A.2d 973 (Pa.1987).


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         (3) that the error of counsel prejudiced the petitioner-i.e.,
         that there is a reasonable probability that, but for the error
         of counsel, the outcome of the proceeding would have
         been different. We presume that counsel is effective, and it
         is the burden of Appellant to show otherwise.

Commonwealth v. duPont, 860 A.2d 525, 531 (Pa.Super.2004) (internal

citations and quotations omitted).       The petitioner bears the burden of

proving all three prongs of this test.       Commonwealth v. Meadows, 787

A.2d 312, 319-320 (Pa.2001).          “If an appellant fails to prove by a

preponderance of the evidence any of the Pierce prongs, the Court need not

address the remaining prongs of the test.” Commonwealth v. Fitzgerald,

979 A.2d 908, 911 (Pa.2010) (citation omitted).

      In his first issue, Appellant argues his counsel was ineffective for

failing to call certain defense witnesses.

      To obtain relief on a missing witness claim, the appellant is required to

establish that (1) the witness existed; (2) the witness was available; (3)

counsel was informed of the existence of the witness or counsel should

otherwise have known of him; (4) the witness was prepared to cooperate

and testify for appellant at trial; and (5) the absence of the testimony

prejudiced appellant so as to deny him a fair trial.      Commonwealth v.

Stanley, 632 A.2d 871, 872 (Pa. 1993) (citing Commonwealth v. Petras,

534 A.2d 483, 485 (Pa. Super. 1987)). It is the appellant’s responsibility to

show that counsel was actually aware of the witness’s existence or had a

duty to know of the witness. Id. “Further, ineffectiveness for failing to call
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a witness will not be found where a defendant fails to provide affidavits from

the alleged witnesses indicating availability and willingness to cooperate with

the   defense.”      Commonwealth         v.   O’Bidos,   849   A.2d   243,    249

(Pa.Super.2004).

      Instantly, in a court-conducted colloquy, Appellant testified that he

had discussed potential witnesses with counsel and decided not to call any

additional defense witnesses.           Accordingly, Appellant’s first claim of

ineffective assistance of counsel lacks merit.

      In his second issue, Appellant argues that his counsel was ineffective

for entering into an agreement with the Commonwealth to permit the

testimony of a detective for the purpose of motive.         Despite Appellant’s

contention that this was an agreement between his counsel and the

Commonwealth, the detective’s testimony was admitted as a result of an

evidentiary ruling after Appellant’s motion in limine.          Thus, Appellant’s

second claim of ineffective assistance of counsel lacks merit.

      In his third issue, Appellant claims his trial counsel was ineffective for

stipulating   to   expert   testimony    because   cross-examination   of     these

witnesses could have undermined prior eyewitness testimony. Specifically,

Appellant suggests that testimony regarding slight variances in the kind of

top Appellant was wearing during the commission of the crime would provide

the basis for misidentification.        Unfortunately for Appellant, all of the


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eyewitnesses testified that Appellant was wearing a brown top, and his hope

of revealing a substantive inconsistency is without a factual basis.

      In his fourth issue, Appellant argues his trial counsel was ineffective

for failing to request a “reliability hearing” for the Commonwealth’s allegedly

paid witnesses.      Because there is no evidence to support Appellant’s

contention that the Commonwealth paid its witnesses and there is no such

thing as a “reliability hearing,” Appellant’s fourth issue is without merit.

      In Appellant’s fifth issue, he alleges his counsel was ineffective for

failing to object to certain eyewitness testimony which Appellant claims was

more prejudicial than probative because the testimony introduced bad acts

into evidence.    Despite Appellant’s contention, the Commonwealth did not

elicit any prior bad acts testimony from any eyewitnesses. Therefore, this

issue lacks merit.

      Because all of Appellant’s ineffective assistance of counsel claims lack

merit, we need not address the other prongs of the Pierce test.                See

Fitzgerald, supra.

      In his sixth issue, Appellant argues the Commonwealth committed

prosecutorial misconduct by presenting the mendacious testimony of

eyewitness Christopher Leon. Appellant claims the prosecutor presented Mr.

Leon’s testimony to harass Appellant, and concludes that he is entitled to a

new trial. We disagree.


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         Claims based on prosecutorial misconduct are not cognizable under the

PCRA. 42 Pa.C.S. § 9543. Thus, we will not address this issue.

         After a thorough review of the record, the briefs of the parties and the

applicable law, we conclude the PCRA court properly denied Appellant PCRA

relief    and   properly   granted    counsel’s   petition   to   withdraw   from

representation of Appellant. Accordingly, we affirm.

         Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/12/2014




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