J-S52041-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                             Appellee

                       v.

CURTIS BARBEE

                             Appellant                No. 1173 EDA 2014


                    Appeal from the PCRA Order July 20, 2012
               In the Court of Common Pleas of Philadelphia County
               Criminal Division at No(s): CP-51-CR-0006134-2007


BEFORE: GANTMAN, P.J., ALLEN, J., and FITZGERALD, J.*

MEMORANDUM BY GANTMAN, P.J.:                     FILED SEPTEMBER 04, 2014

        Appellant, Curtis Barbee, appeals nunc pro tunc from the order

entered in the Philadelphia County Court of Common Pleas, which dismissed

his first petition brought pursuant to the Post Conviction Relief Act
           1
               We affirm.

        The relevant facts and procedural history of this appeal are as follows.



Taylor in the head.         A jury convicted Appellant on October 20, 2008, of

possessing an instrument of crime, and two counts of first-degree murder.

The trial court sentenced Appellant on October 22, 2008, to two consecutive

____________________________________________


1
    42 Pa.C.S.A. §§ 9541-9546.


_____________________________

*Former Justice specially assigned to the Superior Court.
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sentences of life imprisonment, followed by two and one half (2½) to five (5)



on March 15, 2010.      See Commonwealth v. Barbee, 996 A.2d 534

(Pa.Super. 2010) (unpublished memorandum).

       Appellant timely filed a pro se PCRA petition on July 19, 2010.   The

PCRA court appointed counsel, who filed a mo                                 -

                         Commonwealth v. Turner, 518 Pa. 491, 544 A.2d

927 (1988) and Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988)

(en banc

   -          ter. Thereafter, the PCRA court issued notice of its intent to




On July 20, 2012, the PCRA court dismiss



       Appellant purportedly filed a notice of appeal on July 27, 2012.

Nevertheless, after inquiring into the status of his appeal, this Court sent

Appellant a letter informing him that no notice of appeal had been entered

on the docket. On May 7, 2013, Appellant subsequently filed a pro se PCRA

petition requesting reinstatement of his appellate rights nunc pro tunc,

which the PCRA court granted on April 2, 2014. On April 16, 2014, Appellant

timely filed a notice of appeal nunc pro tunc, and a voluntary concise

statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).


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      Appellant raises the following issue for our review:

         WHETHER THE PCRA COURT ERRED WHEN DISMISSING

                                                                     -MERIT
         LETTER?



      Our standard of review of the denial of a PCRA petition is limited to

ex

determination   and    whether    its    decision    is   free   of    legal   error.

Commonwealth v. Conway, 14 A.3d 101 (Pa.Super. 2011), appeal denied,

612 Pa. 687, 29 A.3d 795 (2011). This Court grants great deference to the

findings of the PCRA court if the record contains any support for those

findings. Commonwealth v. Boyd, 923 A.2d 513 (Pa.Super. 2007), appeal

denied, 593 Pa. 754, 932 A.2d 74 (2007).            We give no such deference,

                                  nclusions.    Commonwealth v. Ford, 44

A.3d 1190, 1194 (Pa.Super. 2012). Further, a petitioner is not entitled to a

PCRA hearing as a matter of right; the PCRA court can decline to hold a

hearing if there is no genuine issue concerning any material fact, the

petitioner is not entitled to PCRA relief, and no purpose would be served by

any further proceedings.     Commonwealth v. Wah, 42 A.3d 335, 338

(Pa.Super. 2012).

                                          Turner/Finley          -

deficient. Appellant claims he has the right to effective assistance of counsel

during his first PCRA petition, but he was deprived of that right because

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                     -

Turner/Finley.     Specifically, Appellant alleges PC                         -



ineffectiveness,   failed    to   explain    what    PCRA   counsel   reviewed     and

investigated regarding these claims, and failed to explain why these claims

are meritless. Appellant concludes the PCRA court erred in granting PCRA




counsel. We disagree.

      Preliminarily, our Supreme Co

[not] sua sponte review the sufficiency of a no-merit letter when the

                                                  Commonwealth v. Pitts, 603 Pa.

1, 9, 981 A.2d 875, 879 (2009) (determining appellant failed to raise issue

                         -

Nevertheless, in the present case, Appellant challenged the adequacy of

                     -

Turner/Finley letter, and the

                                      -

                                  Pitts.

      The   law    presumes       counsel    has    rendered   effective   assistance.

Commonwealth v. Williams, 597 Pa. 109, 950 A.2d 294 (2008).                       When

asserting a claim of ineffective assistance of counsel, the petitioner is


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required to demonstrate that: (1) the underlying claim is of arguable merit;

(2) counsel had no reasonable strategic basis for his action or inaction; and,

(3) but for the errors and omissions of counsel, there is a reasonable

probability that the outcome of the proceedings would have been different.

Commonwealth v. Kimball, 555 Pa. 299, 724 A.2d 326 (1999).                   The

failure to satisfy any prong of the test for ineffectiveness will cause the claim

to fail. Williams, supra.



issue/argument/tactic which counsel has foregone and which forms the basis

for the assertion of ineffectivene                            Commonwealth

v. Pierce, 537 Pa. 514, 524, 645 A.2d 189, 194 (1994).



Commonwealth v. Poplawski, 852 A.2d 323, 327 (Pa.Super. 2004).

         On


         that the particular course chosen by counsel had some
         reasonable basis, our inquir
         assistance is deemed effective.

Pierce, supra at 524, 645 A.2d at 194-95 (internal citations omitted).

         Prejudice is established when [an appellant] demonstrates
         that            chosen course of action had an adverse
         effect on the outcome of the proceedings. The [appellant]
         must show that there is a reasonable probability that, but
         for             unprofessional errors, the result of the
         proceeding would have been different.         A reasonable
         probability is a probability sufficient to undermine
         confidence in the outcome. In [Kimball, supra], we held
                          [appellant] alleging prejudice must show

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         that            errors were so serious as to deprive the
         defendant of a fair trial, a trial whose result is reliable.

Commonwealth v. Chambers, 570 Pa. 3, 21-22, 807 A.2d 872, 883

(2002) (some internal citations and quotation marks omitted).

                                                                               -

conviction petitioner must, at a minimum, present argumentation relative to

each layer of ineffective assistance, on all three prongs of the ineffectiveness

                                               , 579 Pa. 490, 500, 856 A.2d



                                        merely by focusing his attention on



argument as to how the second and third prongs of the Pierce test are met

                             Commonwealth v. Santiago, 579 Pa. 46, 69,

8

meaningfully discuss and apply the standard governing the review of



establishing that he is entitled to any re       Commonwealth v. Bracey,

568 Pa. 264, 273 n.4, 795 A.2d 935, 940 n.4 (2001).




Turner/Finley. Appellant baldly asserts his right to effective assistance of

counsel during his first PCRA petition.      Nevertheless, Appellant does not

attempt to apply the standard governing the review of ineffectiveness

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claims. Thus, Appellant has not established he is entitled to any relief on his

claim. See id.

      Moreover, PCRA counsel substantially complied with the requirements

of a Turner/Finley      -

to withdraw from representing a petitioner under the PCRA, Pennsylvania

law                                                              -       letter

pursuant to the mandates of Turner/Finley                 Commonwealth v.

Karanicolas, 836 A.2d 940, 947 (Pa.Super. 2003) (emphasis in original).

         [C]                              -
         court, or brief on appeal to this Court, detailing the nature

         the issues which the petitioner wants to have reviewed,
         explaining why and how those issues lack merit, and
         requesting permission to withdraw.

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

                                                     -

petition to withdraw and advise the petitioner of his right to proceed pro se

or with new counsel. Id.

will satisfy the            Karanicolas, supra.

      Here, PCRA counsel filed a Turner/Finley letter and motion to

withdraw as counsel with the PCRA court.          PCRA counsel stated that he



notes of testimony.   PCRA counsel also listed the ineffective assistance of

trial/appellate counsel claims Appellant wished to raise and explained why

the claims merit no relief.     PCRA counsel indicated that he was sending

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                              -



right to proceed pro se or with private counsel.           Thus, PCRA counsel

substantially   complied    with   the    Turner/Finley   requirements.        See

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

counsel   substantially    complied      with   Turner/Finley   requirements    to

withdraw as counsel); Karanicolas, supra.            Accordingly, we affirm the




      Order affirmed.

      *JUSTICE FITZGERALD CONCURS IN THE RESULT.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/4/2014




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