J-S73038-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :         PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    JANCARLOS PEREZ,                           :
                                               :
                       Appellant               :       No. 856 MDA 2019

               Appeal from the PCRA Order Entered April 22, 2019
                in the Court of Common Pleas of Luzerne County
              Criminal Division at No(s): CP-40-CR-0001753-2016

BEFORE: SHOGAN, J., LAZARUS, J., and MUSMANNO, J.

MEMORANDUM BY MUSMANNO, J.:                    FILED: FEBRUARY 7, 2020

        Jancarlos Perez (“Perez”) appeals from the Order dismissing his Petition

for Relief filed pursuant to the Post Conviction Relief Act (“PCRA”).1 Counsel

for Perez has filed a Petition to Withdraw from representation, and a brief

pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and

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

grant counsel’s Petition to Withdraw, and affirm the Order of the PCRA court.

        The PCRA court summarized the relevant history underlying the instant

appeal as follows:

              [Perez] entered a guilty plea to [t]hird[- d]egree [m]urder
        and was sentenced by the [trial c]ourt to a term of 20 to 40 years’
        state confinement on March 27, 2017.

              [Perez] filed a [d]irect [a]ppeal[,] which was subsequently
        withdrawn by [Perez].
____________________________________________


1   42 Pa.C.S.A. §§ 9541-9546.
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             [Perez] filed a PCRA [Petition] on February 20, 2018[,] and
      the [PCRA c]ourt appointed [PCRA counsel] to represent [Perez].
      [PCRA] counsel filed a Supplemental PCRA Petition on May 3,
      2018. The PCRA Petition alleged [the] ineffectiveness of [Perez’s
      trial counsel, Jack McMahon, Esquire (“Attorney McMahon”), for,]
      inter alia, not filing a suppression motion [regarding Perez’s]
      statement to law enforcement, not providing [Perez] with a copy
      of discovery prior to [the] guilty plea[,] and not pursuing all
      potential defenses.

            The [PCRA c]ourt conducted a PCRA hearing on March 28,
      2019[,] at which time [Perez] and [Attorney McMahon] offered
      testimony.

PCRA Court Opinion, 6/11/19, at 1.       On April 22, 2019, the PCRA court

dismissed Perez’s PCRA Petition.    Thereafter, Perez filed the instant timely

appeal. This Court subsequently remanded the matter for a determination of

whether Perez’s counsel had abandoned Perez. On September 10, 2019, this

Court vacated its remand Order, and directed Perez’s counsel to file an

appellate brief. Perez’s counsel subsequently filed a Petition to Withdraw from

representation, and a brief pursuant to Turner/Finley.

      Before we consider the merits of the issues raised on appeal, we first

determine whether Perez’s appellate counsel followed the required procedure

to withdraw from representation, which we have summarized as follows:

      Counsel petitioning to withdraw from PCRA representation must
      proceed … under [Turner and Finley]. … Turner/Finley counsel
      must review the case zealously.          See Commonwealth v.
      Mosteller, 430 Pa. Super. 57, 633 A.2d 615, 617 (Pa. Super.
      1993). Turner/Finley counsel must then submit a “no-merit” …
      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.

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      Commonwealth v. Karanicolas, 836 A.2d 940, 947 (Pa. Super.
      2003).

            Counsel must also send to the petitioner: (1) a copy of the
      “no-merit” letter/brief; (2) a copy of counsel’s petition to
      withdraw; and (3) a statement advising petitioner of the right to
      proceed pro se or by new counsel. Commonwealth v. Friend,
      896 A.2d 607, 615 (Pa. Super. 2006).

            If 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. Mosteller, 633 A.2d at 617….

            … [W]here counsel submits a petition and no-merit letter
      that [] satisfy the technical demands of Turner/Finley, … this
      Court [] must then conduct its own review of the merits of the
      case. If the [C]ourt agrees with counsel that the claims are
      without merit, the [C]ourt 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 (Pa. Super. 2007).

      We are satisfied from the review of counsel’s Petition and No-Merit Brief

that counsel has substantially complied with the technical requirements of

Turner and Finley. Counsel has detailed his review of the case and the issues

that Perez wishes to raise, and explained why those issues lack merit, with

citation to authority where appropriate. Counsel has also sent a copy of the

brief to Perez and advised him of his immediate right to proceed pro se or with

hired counsel.   Accordingly, we proceed to consider the substance of the

appeal.

      Perez presents the following claims for our review:




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      I.    Whether [Attorney McMahon] was ineffective in failing to file
            a [s]uppression [m]otion[?]

      II.   Whether [Attorney McMahon] was ineffective in failing to
            provide [Perez] with a copy of the discovery [materials]
            prior to pleading guilty and not pursuing all potential
            defenses[?]

No-Merit Brief at 1.

      “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.

Rizvi, 166 A.3d 344, 347 (Pa. Super. 2017). Further, “[i]t is an appellant’s

burden to persuade us that the PCRA court erred and that relief is due.”

Commonwealth v. Miner, 44 A.3d 684, 688 (Pa. Super. 2012).

      Perez’s claims assert ineffective assistance by Attorney McMahon. To

be entitled to relief on this claim, a petitioner must prove that

      the underlying claim is of arguable merit, counsel’s performance
      lacked a reasonable basis, and counsel’s ineffectiveness caused
      him prejudice. Prejudice in the context of ineffective assistance
      of counsel means demonstrating there is a reasonable probability
      that, but for counsel’s error, the outcome of the proceeding would
      have been different. … Failure to establish any prong of the test
      will defeat an ineffectiveness claim.

Commonwealth v. Solano, 129 A.3d 1156, 1162-63 (Pa. 2015) (citations

and footnote omitted).

      Perez first claims that Attorney McMahon rendered ineffective assistance

by not filing a pre-trial motion to suppress his statement to law enforcement.

No-Merit Brief at 5.     In his No-Merit Brief, however, counsel directs our


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attention to Attorney McMahon’s testimony regarding his reasons for not filing

the Motion. No-Merit Brief at 6. According to appellate counsel, Attorney

McMahon testified that, in his statement to law enforcement, Perez did not

admit to the murders. Id. at 6. Further, Attorney McMahon testified that, if

Perez had proceeded to a trial, that statement would show that Perez had

consistently denied the murder.     Id.; see N.T., 3/29/19, at 45 (wherein

Attorney McMahon testified that Perez had admitting to informing the police

that “he had nothing to do with it[,] and that some other guy did the

shooting[,] and that he didn’t do the shooting[,] but that he was there[,]” and

that the victim was his good friend and he would not kill his good friend), 46

(wherein Attorney McMahon testified that Perez had voluntarily spoken with

police, after being given his warnings pursuant to Miranda v. Arizona, 384

U.S. 436 (1966), and that Perez had admitting to being Mirandized), 47

(wherein Attorney McMahon testified that there would be no merit to a

suppression motion because Perez “voluntarily came in.          He was given

Miranda. And most importantly, [the statement] was exculpatory.”). Perez’s

appellate counsel agrees with the assessment of the PCRA court that Attorney

McMahon had a reasonable basis for not pursuing the suppression of Perez’s

statement to police. No-Merit Brief at 45; see PCRA Court Opinion, 6/11/19,




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at 2-3.    We agree the assessment of the PCRA court and Perez’s counsel.

Consequently, Perez’s claim of ineffective assistance of counsel fails.2

       In his second claim, Perez asserts that Attorney McMahon rendered

ineffective assistance by not disclosing all of the discovery information and

material to Perez.       No-Merit Brief at 6.    At the PCRA hearing, however,

Attorney McMahon testified that he had met with Perez, and discussed with

Perez all of the provided discovery materials. Id.; see N.T., 3/29/19, at 67

(wherein Attorney McMahon testified that he brought the provided discovery

with him when meeting Perez, and went over the discovery, witness

statements, and “the whole case” with Perez). The PCRA court credited this

testimony. See PCRA Court Opinion, 6/11/19, at 3; see Commonwealth v

Anderson, 995 A.2d 1184, 1189 (Pa. Super. 2010) (stating that “the PCRA

court’s credibility determinations are binding on this Court, where there is

record support for those determinations.”). Thus, the claim lacks merit.

       Upon review, Perez’s claims are without merit and frivolous. We

therefore grant counsel’s Petition to Withdraw, and affirm the Order of the

PCRA court.

       Petition to Withdraw granted. Order affirmed.




____________________________________________


2 See Solano, 129 A.3d at 1163 (stating that the failure to establish any
prong of the test will defeat an ineffectiveness claim).


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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 02/07/2020




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