J-S24006-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA              :       IN THE SUPERIOR COURT OF
                                          :             PENNSYLVANIA
            v.                            :
                                          :
JEREMY R. KENDRICKS,                      :
                                          :
                  Appellant               :            No. 860 MDA 2015

           Appeal from the PCRA Order entered on April 23, 2015
             in the Court of Common Pleas of Luzerne County,
            Criminal Division, No(s): CP-40-CR-0004155-2008

BEFORE: GANTMAN, P.J., BOWES and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                            FILED MAY 26, 2016

      Jeremy R. Kendricks (“Kendricks”) appeals from the denial of his first

Petition filed pursuant to the Post Conviction Relief Act (“PCRA”).    See 42

Pa.C.S.A. §§ 9541-9546.       Additionally, Kendricks’s counsel, Matthew P.

Kelly, Esquire (“Kelly”), has filed a Petition to Withdraw as Counsel and an

accompanying brief.1 We grant Kelly’s Petition to Withdraw as Counsel and

affirm the PCRA court’s Order.

      The PCRA court set forth the relevant factual and procedural history in

its Opinion, which we adopt for the purpose of this appeal. See PCRA Court

1
  Kelly’s brief on appeal appears to be in the nature of a brief filed pursuant
to Anders v. California, 386 U.S. 738 (1967), which applies when counsel
seeks to withdraw from representation on direct appeal. When, as in this
case, counsel seeks to withdraw from representation on collateral appeal,
the dictates of Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc), are
applicable. However, because an Anders brief provides greater protection
to a defendant, this Court may accept an Anders brief in lieu of a
Turner/Finley “no-merit” letter. See Commonwealth v. Reed, 107 A.3d
137, 139 n.5 (Pa. Super. 2014).
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Opinion, 4/23/15, at 1-5.       Following the denial of the PCRA Petition,

Kendricks filed a timely Notice of Appeal.2

      In the Turner/Finley brief, Kelly raises the following questions for our

review:

      1. Whether trial counsel was ineffective in failing to object to the
         testimony of David Green [“Green”?]

      2. Whether trial counsel was ineffective in not being prepared to
         cross-examine [] Green[] with regard to his [blood alcohol
         content (“BAC”)?]

      3. Whether trial counsel was ineffective in failing to object to the
         way the trial court read the jury charge[?]

      4. Whether trial counsel was ineffective in failing to object to the
         Commonwealth’s questioning of witness, Robin Malia
         [“Malia”][?]

      5. Whether trial counsel was ineffective in failing to object to the
         racial makeup of the jury pursuant to Batson v. Kentucky[,
         476 U.S. 79 (1986)?]

Turner/Finley Brief at 1.

      Prior to addressing Kendricks’s claims on appeal, we must address

Kelly’s Petition to Withdraw as Counsel.      Pursuant to Turner/Finley, an

independent review of the record by competent counsel is required before

withdrawal on collateral appeal is permitted. See Commonwealth v. Pitts,




2
  Following the filing of his PCRA Petition, the PCRA court appointed
Kendricks counsel on April 16, 2013. Counsel filed a Supplemental PCRA
Petition. Following the denial of the Supplemental Petition and the filing of
the Notice of Appeal, Kendricks’s PCRA counsel withdrew his representation
and Kelly was appointed as appellate counsel.


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981 A.2d 875, 876 n.1 (Pa. 2009). In Pitts, our Supreme Court explained

that such independent review requires proof of the following:

      1. A “no-merit” letter by PCRA counsel detailing the nature and
         extent of his review;

      2. The “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 [] court conducting its own independent review of the
         record; and

      5. The [] court agreeing with counsel that the petition was
         meritless.

Id.; see also Commonwealth v. Freeland, 106 A.3d 768, 774 (Pa. Super.

2014) (stating that if a no-merit letter is filed before it, the appellate court

“must conduct its own independent evaluation of the record and agree with

counsel that the petition is without merit.”).    Further, our Court has held

that the Supreme Court in Pitts did not expressly overrule the additional

requirement imposed by this Court in Commonwealth v. Friend, 896 A.2d

607, 615 (Pa. Super. 2006), stating

      that PCRA counsel seeking to withdraw contemporaneously
      forward to the petitioner a copy of the application to withdraw
      that includes (i) a copy of both the “no-merit” letter, and (ii) a
      statement advising the PCRA petitioner that, in the event the
      trial court grants the application of counsel to withdraw, the
      petitioner has the right to proceed pro se, or with the assistance
      of privately retained counsel.

Commonwealth v. Widgins, 29 A.3d 816, 818 (Pa. Super. 2011).




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      Here, in the Turner/Finley brief, Kelly described the extent of his

review, identified the issues that Kendricks seeks to raise, and explained

why the issues lack merit. In addition, Kelly provided Kendricks with notice

of his intention to seek permission to withdraw from representation, a copy

of the Turner/Finley brief, and advised Kendricks of his rights in lieu of

representation. Thus, we conclude that Kelly has substantially complied with

the requirements necessary to withdraw as counsel. See Commonwealth

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

substantial compliance with the requirements to withdraw as counsel will

satisfy   the    Turner/Finley   criteria).   We   now   independently   review

Kendricks’s claims to ascertain whether they entitle him to relief.3

             We review an order [denying] a petition under the PCRA in
      the light most favorable to the prevailing party at the PCRA
      level. This review is limited to the findings of the PCRA court
      and the evidence of record. We will not disturb a PCRA court’s
      ruling if it is supported by evidence of record and is free of legal
      error.

Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa. Super. 2012) (citations

omitted).

      Here, each of Kendricks’s claims involves the ineffective assistance of

trial counsel.    To succeed on such a claim, he must demonstrate by the

preponderance of the evidence that

      (1) [the] underlying claim is of arguable merit; (2) the particular
      course of conduct pursued by counsel did not have some

3
  We note that Kendricks has filed neither a pro se brief nor retained
alternate counsel for this appeal.


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      reasonable basis designed to effectuate his interests; and (3) but
      for counsel’s ineffectiveness, there is a reasonable probability
      that the outcome of the proceedings would have been different.

Commonwealth v. Ali, 10 A.3d 282, 291 (Pa. 2010). A failure to satisfy

any prong of the test for ineffectiveness will require rejection of the claim.

Commonwealth v. Martin, 5 A.3d 177, 183 (Pa. 2010).                 Counsel is

presumed to be effective, and the burden is on the appellant to prove

otherwise. Commonwealth v. Hanible, 30 A.3d 426, 439 (Pa. 2011).

      In his first claim, Kendricks contends that his trial counsel was

ineffective for failing to object to Green’s testimony that Kendricks shot him.

Turner/Finley Brief at 5.      Kendricks argues that because he was not

charged with shooting Green, Green’s testimony was irrelevant and

prejudicial. Id. at 5-6. Kendricks asserts that counsel’s failure to object to

Green’s testimony did not have a reasonable basis. Id. at 6.

      The PCRA court addressed Kendricks’s first claim and determined that

it is without merit.   See PCRA Court Opinion, 4/23/15, at 5-6; see also

Commonwealth v. Kearney, 92 A.3d 51, 65 (Pa. Super. 2014) (stating

that “the following factors are to be considered in determining the propriety

of admitting identification evidence: the opportunity of the witness to view

the perpetrator at the time of the crime, the witness’[s] degree of attention,

the accuracy of his prior description of the perpetrator, the level of certainty

demonstrated at the confrontation, and the time between the crime and

confrontation.”). We adopt the sound reasoning of the PCRA court for the



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purpose of this appeal, and conclude that Kendricks’s first ineffectiveness

claim fails.   See PCRA Court Opinion, 4/23/15, at 5-6; see also

Commonwealth v. Cousar, 928 A.2d 1025, 1033 (Pa. 2007) (stating that

the testimony of an eyewitness supported the murder conviction, even

though the witness admitted to drug use at time of the shooting, because

the witness was only a few feet from the shooting, the shooter walked by

the witness after the shooting, the witness picked the shooter’s photo from

an array, and the witness unequivocally identified defendant in court).

      In his second claim, Kendricks contends that his trial counsel was

ineffective for failing to prepare a proper cross-examination of Green with

regard to Green’s BAC on the night of the shooting. Turner/Finley Brief at

6. Kendricks argues that counsel was prevented from properly questioning

Green about his BAC by failing to present a toxicologist to testify.      Id.

Kendricks claims that evidence showing that Green had a high BAC would

have undermined Green’s credibility to the jury. Id.

      The PCRA court addressed Kendricks’s second claim and determined

that it is without merit.   See PCRA Court Opinion, 4/23/15, at 6-8.      We

adopt the sound reasoning of the PCRA court for the purpose of this appeal.

See id.4




4
 Additionally, Green clearly identified Kendricks as the shooter. See, e.g.,
N.T., 5/3/10, at 379 (wherein Green stated that he was “one hundred
percent” positive that Kendricks was the shooter).


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      In his third claim, Kendricks contends that trial counsel was ineffective

for failing to ensure proper jury instructions.   Turner/Finley Brief at 6-7.

Kendricks argues that “trial counsel should have objected to the way the

jury was charged in order to ensure that the jury understood the various

levels of [h]omicides and their options.” Id.

      The PCRA court addressed Kendricks’s third claim and determined that

it is without merit.   See PCRA Court Opinion, 4/23/15, at 8-9; see also

Pa.R.Crim.P. 647(D) (authorizing the trial court to provide additional

instructions to the jury after the jury has retired to consider its verdict);

Commonwealth v. Davalos, 779 A.2d 1190, 1195 (Pa. Super. 2001)

(noting that “[t]he scope of supplemental instructions given in response to a

jury’s request rests within the sound discretion of the trial judge.”).    We

adopt the sound reasoning of the PCRA court for the purpose of this appeal.

See PCRA Court Opinion, 4/23/15, at 8-9.

      In his final claim, Kendricks contends that trial counsel was ineffective

for failing to object to the racial makeup of the jury pursuant to Batson.

Turner/Finley Brief at 7.       Kendricks argues that one or two African

American jurors were stricken for no reason other than race. Id.

      The PCRA court addressed Kendricks’s final claim and determined that

it is without merit. See PCRA Court Opinion, 4/23/15, at 11-12. We adopt

the sound reasoning of the PCRA court for the purpose of this appeal. See

id.



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      Our independent review of the record has revealed no meritorious

claims that Kendricks could have raised, and we agree with Kelly that this

appeal lacks merit.5   Accordingly, we affirm the Order denying Kendricks’s

first PCRA Petition and grant Kelly’s Petition to Withdraw as Counsel.

       Order affirmed. Petition to Withdraw as Counsel granted.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 5/26/2016




5
  We note that in the Turner/Finley brief, Kelly does not set forth an
argument related to the fourth question in the Statement of Questions
Involved, i.e., whether trial counsel was ineffective for failing to object to the
Commonwealth’s questioning of Malia. However, our independent review of
the record reveals that the PCRA court properly addressed this claim and
determined that it is without merit. See PCRA Court Opinion, 4/23/15, at 9-
10. We adopt the sound reasoning of the PCRA court as to this claim for the
purpose of this appeal. See id.


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