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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                         IN THE SUPERIOR COURT OF
                                                           PENNSYLVANIA
                            Appellee

                       v.

JAMES WESTBROOK

                            Appellant                     No. 880 EDA 2015


                   Appeal from the PCRA Order March 6, 2015
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-1105621-2004

BEFORE: BOWES, J., MUNDY, J., and PLATT, J.*

MEMORANDUM BY MUNDY, J.:                                  FILED APRIL 15, 2016

        Appellant, James Westbrook, appeals from the March 6, 2015 order

dismissing his first petition for relief filed pursuant to the Post Conviction

Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9456.             In addition, Appellant’s

counsel has filed with this Court a petition to withdraw, together with a

Turner/Finley1 no-merit letter.           After careful review, we grant counsel’s

petition to withdraw and affirm.

        We summarize the relevant procedural history of this case as follows.

On January 26, 2005, Appellant entered a negotiated guilty plea to one


____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
  Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth
v. Finley, 550 A.2d 213 (Pa. Super 1988) (en banc).
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count of possession with the intent to deliver a controlled substance. 2 That

same day, the trial court imposed a sentence of two to four years’

imprisonment to run concurrently with all sentences he was then serving.

Appellant did not file a direct appeal.

        On April 11, 2013, Appellant filed a PCRA petition through the

Defender Association of Philadelphia. On January 28, 2015, the PCRA court

issued notice of its intention to dismiss the PCRA petition without a hearing

pursuant to Pennsylvania Rule of Criminal Procedure 907. On February 27,

2015, Appellant filed a pro se response to the Rule 907 notice. On March 6,

2015, the PCRA court dismissed the PCRA petition.     Appellant timely filed,

pro se, a notice of appeal on March 18, 2015.3

        On April 29, 2015, appellate counsel entered his appearance on

Appellant’s behalf.       On May 4, 2015, the PCRA court issued an order

pursuant to Pennsylvania Rule of Appellate Procedure 1925, directing
____________________________________________


2
    35 P.S. § 780-113(a)(30).
3
   We note that because Appellant was represented at the time he filed his
pro se response to the Rule 907 notice and pro se notice of appeal, those
filings may be deemed legal nullities. Commonwealth v. Nischan, 928
A.2d 349, 355 (Pa. Super. 2007) (noting that a defendant’s pro se filings
while represented by counsel are legal nullities), appeal denied, 936 A.2d 40
(Pa. 2007); accord Commonwealth v. Hall, 476 A.2d 7, 9-10 (Pa. Super.
1984). However, the subsequent actions of the PCRA court, this Court, and
Appellant’s counsel, discussed below, have perfected this appeal. See
Commonwealth v. Cooper, 27 A.3d 994, 1008 (Pa. 2011) (holding that a
pro se notice of appeal filed by a represented appellant shall be considered
merely premature if counsel and the trial court take appropriate actions to
perfect the appeal). Therefore, we do not quash this appeal.



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

within 21 days. On May 13, 2015, the Defender Association of Philadelphia

filed a motion to withdraw its representation, which the PCRA court granted

on May 29, 2015.

      On August 26, 2015, this Court issued a per curiam order remanding

the case to the PCRA court to allow Appellant to file a Rule 1925(b) concise

statement and for the preparation of an opinion by the PCRA court.              On

September 2, 2015, Appellant filed a Rule 1925(b) concise statement nunc

pro tunc in the PCRA court. On October 13, 2015, the PCRA court issued its

Rule 1925(a) opinion. The PCRA court returned the record to this Court and

this case is now ready for disposition.

      On   November     4,   2015,   counsel   filed   a   petition   to   withdraw

representation in this Court, together with a Turner/Finley no-merit letter.

Appellant did not respond to the Turner/Finley letter.

      In his Turner/Finley letter, counsel identifies the following issue

Appellant seeks to have reviewed.

            1. The PCRA [c]ourt erred by denying [A]ppellant a
            hearing and PCRA relief on his claim alleging that he
            was entitled to a new trial on account of newly-
            discovered evidence predicated on the arrest of the
            officer, who arrested [A]ppellant, for crimes
            including fabrication of evidence.

Turner/Finley Letter at 3.

      “On appeal from the denial of PCRA relief, our standard and scope of

review is limited to determining whether the PCRA court’s findings are

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supported by the record and without legal error.”         Commonwealth v.

Edmiston, 65 A.3d 339, 345 (Pa. 2013) (citation omitted), cert. denied,

Edmiston v. Pennsylvania, 134 S. Ct. 639 (2013). “[Our] 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 PCRA court

level.” Commonwealth v. Koehler, 36 A.3d 121, 131 (Pa. 2012) (citation

omitted). In order to be eligible for PCRA relief, a petitioner must establish

that he has been convicted of a crime under the laws of this Commonwealth

and is currently serving a sentence of imprisonment, probation, or parole for

the crime. 42 Pa.C.S.A. § 9543(a)(1). A petitioner must plead and prove by

a preponderance of the evidence that his conviction or sentence arose from

one or more of the errors listed at 42 Pa.C.S.A. § 9543(a)(2). These issues

must be neither previously litigated nor waived. Id. § 9543(a)(3). “[T]his

Court applies a de novo standard of review to the PCRA court’s legal

conclusions.”   Commonwealth v. Spotz, 18 A.3d 244, 259 (Pa. 2011)

(citation omitted).

      In this case, the PCRA court dismissed Appellant’s PCRA petition

without conducting a hearing.

                  [T]he right to an evidentiary hearing on a post-
            conviction petition is not absolute. It is within the
            PCRA court’s discretion to decline to hold a hearing if
            the petitioner’s claim is patently frivolous and has no
            support either in the record or other evidence. It is
            the responsibility of the reviewing court on appeal to
            examine each issue raised in the PCRA petition in
            light of the record certified before it in order to

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              determine if the PCRA court erred in its
              determination that there were no genuine issues of
              material fact in controversy and in denying relief
              without conducting an evidentiary hearing.

Commonwealth v. Wah, 42 A.3d 335, 338 (Pa. Super. 2012), quoting

Commonwealth v. Turetsky, 925 A.2d 876, 882 (Pa. Super. 2007)

(citations omitted), appeal denied, 940 A.2d 365 (Pa. 2007); see also

generally Pa.R.Crim.P. 907. “We stress that an evidentiary hearing is not

meant to function as a fishing expedition for any possible evidence that may

support some speculative claim ….”     Commonwealth v. Roney, 79 A.3d

595, 604-605 (Pa. 2013) (citations and internal quotation marks omitted),

cert. denied, Roney v. Pennsylvania, 135 S. Ct. 56 (2014). We review a

PCRA court’s decision to dismiss without a hearing for an abuse of discretion.

Id. at 604.

      Before we consider Appellant’s arguments, we must review PCRA

counsel’s request to withdraw from representation.      As described by our

Supreme Court, the requirements PCRA counsel must adhere to when

requesting to withdraw include the following.

              1) A “no-merit” letter by PC[R]A counsel detailing
              the nature and extent of his review;

              2) The “no-merit” letter by PC[R]A counsel listing
              each issue the petitioner wished to have reviewed;

              3) The PC[R]A counsel’s “explanation”, in the “no-
              merit” letter, of why the petitioner’s issues were
              meritless[.]




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

Finley, supra at 215. “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. Wrecks, 931 A.2d 717, 721 (Pa. Super.

2007).

                  [W]here 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. 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.

Id. (citation omitted).

      Here, we conclude that counsel has complied with the technical

requirements of Turner/Finley. Specifically, counsel’s Turner/Finley letter

details the nature and extent of his review, addresses the claims Appellant

raised in his PCRA petition and Rule 1925(b) statement, and determines that

the issues lack merit.    Counsel provides a discussion of Appellant’s claim,

explaining why the issue is without merit.       Additionally, counsel served

Appellant with a copy of the petition to withdraw and Turner/Finley letter,

advising Appellant that, if counsel was permitted to withdraw, Appellant had

the right to proceed pro se or with privately retained counsel. We proceed,

therefore, to conduct an independent merits review of Appellant’s claims.

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      Turning to the merits of Appellant’s issues on appeal, Appellant has

not pled or proved that he is eligible for PCRA relief.           Appellant was

sentenced on January 26, 2005 to two to four years’ imprisonment, to run

concurrently to any other sentence he was already serving.          Therefore, it

appears that Appellant’s sentence maxed out on January 26, 2009.              The

PCRA court concluded that Appellant was not eligible for PCRA relief because

he completed his sentence in 2009.       PCRA Court Opinion, 10/13/15, at 3.

Appellant’s pro se response to the PCRA court’s Rule 907 notice does not

assert that he was still serving a sentence in this case or that he was eligible

for PCRA relief.   Similarly, in his Turner/Finley letter, appellate counsel

concurs that Appellant’s sentence concluded in 2009, and his PCRA claims

are now moot. Turner/Finley Letter at 5-6. Likewise, the Commonwealth’s

brief states that Appellant’s sentence was never revoked or modified, and it

expired on January 26, 2009.       Commonwealth’s Brief at 5.       Further, the

Commonwealth advises that it has contacted the records supervisor for the

Department of Corrections at State Correctional Institute Mahanoy, who

confirmed that Appellant completed his sentence in this case on January 26,

2009. Id. at 5 n.3.

      Appellant is ineligible for PCRA relief. To be eligible for relief under the

PCRA, the petitioner must be “currently serving a sentence of imprisonment,

probation or parole for the crime.”       42 Pa.C.S.A. § 9543(a)(1)(i).       Our

Supreme Court has held that as soon as his sentence is completed, the


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petitioner becomes ineligible for PCRA relief, regardless of whether he was

serving his sentence when he filed the petition.         Commonwealth v.

Ahlborn, 699 A.2d 718, 720 (Pa. 1997); Commonwealth v. Matin, 832

A.2d 1141, 1143 (Pa. Super. 2003), appeal denied, 843 A.2d 1237 (Pa.

2004). It is the petitioner’s burden to plead and prove that he is currently

serving a sentence in order to be eligible for PCRA relief.      42 Pa.C.S.A.

§ 9543(a)(1)(i). Appellant has failed to meet his burden to plead and prove

he is serving a sentence in this case.

      Based on the foregoing, we agree with counsel that the issues

Appellant raises in this appeal are meritless. Further, the trial court did not

abuse its discretion by disposing of Appellant’s petition without a hearing.

See Roney, supra. Therefore, we grant counsel’s petition to withdraw, and

we conclude the PCRA court properly dismissed Appellant’s PCRA petition

without a hearing because Appellant is not eligible for PCRA relief in this

case. Accordingly, the PCRA court’s March 6, 2015 order is affirmed.

      Order affirmed. Petition to withdraw as counsel granted.

      Judge Platt joins the memorandum.

      Judge Bowes concurs in the result.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/15/2016




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