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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA          :    IN THE SUPERIOR COURT OF
                                      :          PENNSYLVANIA
                  v.                  :
                                      :
CHRISTOPHER SYMMS,                    :         No. 230 WDA 2013
                                      :
                       Appellant      :


            Appeal from the PCRA Order, December 20, 2012,
            in the Court of Common Pleas of Allegheny County
            Criminal Division at Nos. CP-02-CR-0003182-2005,
                         CP-02-CR-0005435-2005


BEFORE: FORD ELLIOTT, P.J.E., SHOGAN AND ALLEN, JJ.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:           FILED JANUARY 29, 2015

     Appellant appeals the order dismissing his first petition brought

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

9546. Finding no error, we affirm.

     On June 13, 2006, appellant was found guilty following bench trial of

third degree murder, aggravated assault, recklessly endangering another

person, carrying a firearm without a license, possession of a controlled

substance with intent to deliver, and possession of marijuana. Appellant’s

convictions arose from an incident in Wilkinsburg on February 13, 2005,

during which appellant shot and killed a man with whom he had been

arguing. A friend of appellant was accidently wounded during the crime. A

gun and a jacket containing drugs were left behind at the crime scene.
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Fingerprint evidence connected appellant to the gun while DNA matched him

to the jacket.

      On December 13, 2006, appellant was sentenced to an aggregate term

of 15 to 30 years’ imprisonment. On July 10, 2008, this court affirmed the

judgment of sentence; and on December 23, 2008, our supreme court

denied appeal.    Commonwealth v. Symms, 959 A.2d 974 (Pa.Super.

2008) (unpublished memorandum), appeal denied, 963 A.2d 470 (Pa.

2008). On March 3, 2009, appellant filed his first PCRA petition pro se. On

December 4, 2009, appellant filed an amended PCRA petition pro se.

Ultimately, David Hoffman, Esq., was appointed to represent appellant on

May 15, 2012.

      On June 15, 2012, counsel filed a motion for leave to withdraw and a

“no-merit” brief pursuant to Turner-Finley practice. See Commonwealth

v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth v. Finley, 550 A.2d

213 (Pa.Super. 1988) (en banc).        On September 19, 2012, the court

entered an order permitting counsel to withdraw.       On October 25, 2012,

appellant filed a response to the order permitting counsel to withdraw which

challenged PCRA counsel’s effectiveness. On December 20, 2012, the PCRA

court entered its order dismissing appellant’s PCRA petition without hearing. 1



1
  We previously remanded this case for a factual finding as to whether
appellant was properly notified as to the PCRA court’s intention to dismiss
his petition without hearing pursuant to Pa.R.Crim.P. 907, 42 Pa.C.S.A. In
response, the PCRA court made a finding that it did comply with Rule 907.


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      On appeal, appellant raises three issues:

            1.     DID THE PCRA COURT ERR IN DISMISSING
                   APPELLANT’S PCRA PETITION, SPECIFICALLY
                   IN FAILING TO ORDER AMENDMENT OF
                   APPELLANT’S DEFECTIVE PRO SE PETITION,
                   WITH ASSISTANCE OF COUNSEL, IN LIEU OF
                   ADOPTING PCRA COUNSEL’S “NO MERIT”
                   LETTER,  AND   DISMISSING   APPELLANT’S
                   PETITION WITHOUT A HEARING?

            2.     DID THE PCRA COURT ERR IN DISMISSING
                   APPELLANT’S  PRO   SE  PCRA PETITION,
                   PURSUANT TO COUNSEL’S “NO MERIT”
                   LETTER, WHICH FAILED TO COMPORT WITH
                   THE STANDARDS GOVERNING WITHDRAWAL
                   UNDER THE PCRA?

            3.     WAS   THE   ASSISTANCE    OF   COUNSEL
                   RENDERED BY THE PCRA COURT SUFFICIENT
                   TO DISCHARGE APPELLANT’S RIGHT TO
                   COUNSEL UNDER THE POST-CONVICTION
                   COLLATERAL RELIEF PROCEDURAL RULES?

Appellant’s brief at 3.

      Our standard of review for an order denying post-conviction relief is

whether the record supports the PCRA court’s determination, and whether

the PCRA court’s determination is free of legal error.   Commonwealth v.

Franklin, 990 A.2d 795, 797 (Pa.Super. 2010). The PCRA court’s findings

will not be disturbed unless there is no support for the findings in the

certified record. Id.

      In his first issue, appellant contends that the PCRA court erred in

failing to order the amendment of appellant’s defective pro se PCRA

petitions pursuant to Pa.R.Crim.P., Rule 905, 42 Pa.C.S.A. Such amendment



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was not required because the court appointed counsel who reviewed

appellant’s case, determined that there were no meritorious issues, and filed

a proper motion for leave to withdraw and no-merit brief. Moreover, as the

PCRA court notes, appellant’s petition was not denied because it was

defective, but because there were no issues of merit. (Trial court opinion,

12/16/13 at 4.) We agree.

      In his second issue, appellant complains that the no-merit brief filed

by PCRA counsel did not comport with Turner-Finley standards. Appellant

notes that counsel must detail the nature and extent of his review and

contends that PCRA counsel failed to do so, citing Commonwealth v.

Mosteller, 633 A.2d 615 (Pa.Super. 1993).          In Mosteller, counsel’s

statement of his review was merely “[t]hat after a review of the entire

record and upon completion of my investigation . . . .”    Id. at 617.   The

Mosteller court found said review to be both cryptic and inadequate.

      At page 9 of the no-merit brief, present PCRA counsel stated the

nature of his review:

                 The undersigned reviewed the file maintained
            by the Department of Court Records, the dockets
            and the transcripts of the September 13, 14 and 18
            Nonjury Trial and December 19, 2006 Sentencing.

No-merit brief, 6/15/12 at 9.     Unlike the statement in Mosteller, this

statement identifies the file maintained by the Department of Court Records,

the docket, and the precise transcripts in appellant’s case.     Our review

reveals that counsel correctly identified the transcripts that are present in


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this case.   PCRA counsel clearly reviewed the instant record and properly

described the nature of his review in the no-merit letter. There is no merit

in appellant’s contention.

      Appellant also argues that counsel failed to raise the claims that

appellant wished to be raised as counsel is required to do under

Turner-Finley practice. In appellant’s first pro se PCRA petition, no issues

were raised.    In his second PCRA petition, appellant raised the following

three issues:

             Issue #1: The trial court erred in substituting
             evidentiary tools for facts and/or evidence resulting
             in a verdict based on conjecture.

             Issue #2: The Trial Court’s faulty opinion thwarted
             the petitioners [sic] right to an appeal when it
             restated facts and/or evidence and mischaracterized
             the petitioner’s arguments.

             Issue #3: Trial and appellate counsels’ failures to
             practice competent skill and knowledge within
             prevailing professional norms procedurally denied
             the petitioner counsel.

PCRA petition, 12/4/09.2


2
  Appellant suggested a possible fourth issue to counsel in a letter dated June 8,
2012. (See Record Document No. 54, Exhibit D.) Therein, appellant suggested a
possible Confrontation Clause violation because the forensic pathologist that
testified at trial, Dr. Shakir, was not the pathologist who conducted the autopsy and
prepared the autopsy report, which was a Dr. Ladham. We see no error or issue
here. Dr. Ladham’s report was not entered into evidence and although Dr. Shakir
testified that he had reviewed that report, Dr. Shakir largely testified as to his own
evaluations and conclusions, rather than those of Dr. Ladham. Furthermore, there
was no issue at trial questioning either the injuries to the victim or the manner of
the victim’s death. Finally, appellant’s counsel actually relied upon Dr. Shakir’s
testimony to support a defense theory that the victim was killed during a struggle
over the gun. (Notes of testimony, 9/18/06 at 308.)


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      Appellant’s first two issues effectively raise a weight of the evidence

challenge.   Appellant raised the weight of the evidence on direct appeal.

Commonwealth v. Symms, unpublished memorandum filed July 10, 2008

at 10-11. Consequently, counsel was prohibited from raising this issue since

it was previously litigated.   See 42 Pa.C.S.A. §§ 9543(a)(3); 9544(a)(2).

Furthermore, as to the second issue, the trial court’s opinion in no way

“thwarted” appellant’s direct appeal as that appeal continued through to

resolution by this court.   As for appellant’s third issue, the no-merit brief

thoroughly raised and explored possibilities of ineffective assistance on the

part of prior counsel. There is no merit to this contention by appellant.

      Appellant’s final issue presents a bald claim that PCRA counsel was

ineffective for failing to amend his defective pro se PCRA petition and for

failing to file a legitimate no-merit brief.3 Clearly, for the reasons discussed

as to appellant’s prior issues, we find no merit in the suggestion that PCRA

counsel was ineffective. Accordingly, we will affirm the order below.

      Order affirmed.




3
  Appellant preserved this issue by raising it in a response to the PCRA
court’s order permitting counsel to withdraw. See Commonwealth v.
Pitts, 981 A.2d 875, 879 n.3 (Pa. 2009).


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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 1/29/2015




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