J-S45007-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                      Appellee                 :
                                               :
               v.                              :
                                               :
    MICHAEL RHOADES                            :
                                               :
                      Appellant                :       No. 3789 EDA 2015

                Appeal from the PCRA Order December 1, 2015
             In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0008038-2012,
              CP-51-CR-0008039-2012, MC-51-CR-0041569-2007


BEFORE:      GANTMAN, P.J., PANELLA, J., and STRASSBURGER, J.*

MEMORANDUM BY GANTMAN, P.J.:                           FILED AUGUST 17, 2017

        Appellant, Michael Rhoades, appeals pro se from the order entered in

the Philadelphia County Court of Common Pleas, which denied his first

petition filed under the Post Conviction Relief Act (“PCRA”).1 We affirm.

        In its opinion, the PCRA court accurately set forth the relevant facts of

this case as follows:

           1. Victim 1—[Victim #1], CP-51-CR-0008038-2012

           Around late 2009 or early 2010, [Appellant’s] wife, co-
           defendant Tamara Rhoades (“co-defendant Ms. Rhoades”),
           met [Victim #1] online.   Based on co-defendant Ms.
____________________________________________


1
    42 Pa.C.S.A. §§ 9541-9546.




_____________________________

*Retired Senior Judge assigned to the Superior Court.
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          Rhoades’s encouragement, [Victim #1] came to live with
          [Appellant] and co-defendant Ms. Rhoades in their
          Philadelphia home to start some sort of romantic
          relationship with co-defendant Ms. Rhoades. During the
          two years that [Victim #1] lived with [Appellant] and co-
          defendant Ms. Rhoades, [Appellant] and co-defendant Ms.
          Rhoades subjected [Victim #1] to horrible abuse while at
          the same time trying to prevent her from leaving the
          house.

          [Appellant] and co-defendant Ms. Rhoades physically
          abused [Victim #1]. On one occasion, co-defendant Ms.
          Rhoades hit [Victim #1] over the head with a bottle.
          [Appellant] and co-defendant Ms. Rhoades worked
          temporary jobs with [Victim #1], and then took all the
          money that [Victim #1] earned from this work.
          [Appellant] and co-defendant Ms. Rhoades threatened to
          hurt [Victim #1]’s family. Throughout this two year time
          period, [Victim #1] was expected to have sex with co-
          defendant Ms. Rhoades and sometimes [Appellant].

          On February 16, 2012, co-defendant Steven Mills, (“co-
          defendant Mills”)[2] came over [to Appellant’s] house. The
          three co-defendants went into [Victim #1]’s bedroom
          where she was sleeping. [Appellant] punched [Victim #1]
          in the face. Co-defendant Mills then dragged [Victim #1]
          to the basement. Co-defendant Mills and co-defendant Ms.
          Rhoades beat [Victim #1], and co-defendant Mills poured
          alcohol and other flammable liquids on her. Co-defendant
          Mills then used a lighter to set her on fire.

          During this time when the co-defendants and [Victim #1]
          were in the basement, [Appellant] was in the upstairs
          bedroom.     However, at one point, co-defendant Ms.
          Rhoades and co-defendant Mills brought [Victim #1] to the
          upstairs bedroom where [Appellant] was, and [Appellant]
          asked [Victim #1] if she had enough. Co-defendant Ms.
          Rhoades then punched [Victim #1] and set her on fire
          again. [Victim #1] sustained second-degree burns to her
____________________________________________


2
  The certified record sometimes refers to Appellant’s co-defendant as
Steven Miller.



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       face, chest, breast, buttocks, and inside her genitals, and
       her hand and orbital bone were broken.

       Over the next few days, [Appellant], co-defendant Ms.
       Rhoades, and co-defendant Mills tried to concoct a plan for
       how to explain the victim’s injuries. [Appellant] and the
       co-defendants devised the story that [Victim #1] had
       sexually abused [Appellant’s] fourteen-year-old daughter
       and that it was [Appellant’s] daughter who had injured
       [Victim #1]. [Appellant] prepared a script for [Victim #1]
       to read on camera confessing to the supposed crime. They
       also bought [Victim #1] a bus ticket to Pittsburgh and
       made sure that she got on the bus. [Appellant], co-
       defendant Ms. Rhoades, and co-defendant Mills, and
       [Appellant’s] daughter, Michelle, then went to police.
       [Appellant] told the police that his daughter hurt [Victim
       #1] because [Victim #1] had sexually abused her. The
       police were able to determine the real story because the
       victim had gone to a hospital in Pittsburgh and reported
       what happened to the police.

       2. Victim 2—[Victim #2], CP-51-CR-008039-2012

       A detective went to [Appellant’s] house with a search
       warrant. The second victim, [Victim #2], opened the door
       of [Appellant’s] house.      The detective was alarmed
       because [Victim #2] had two black eyes and was the same
       age as the other victim, [Victim #1].         The police
       discovered that [Victim #2] had been treated similarly to
       [Victim #1], although [Victim #2] was not beaten as badly
       as [Victim #1].

       Co-defendant Ms. Rhoades had persuaded [Victim #1] to
       look on the internet for other people to come live with
       them.     [Victim #1] found [Victim #2] online and
       persuaded her to come live at the Rhoades’ home.
       [Appellant] and co-defendant Ms. Rhoades took Social
       Security checks and student loan checks from [Victim #2].
       Co-defendant Ms. Rhoades also beat [Victim #2], including
       punching her in the face and hitting her in the face with a
       master lock. [Victim #2] was threatened by [Appellant]
       and co-defendant Ms. Rhoades, and [Victim #2] felt that
       she could not leave the house.



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(PCRA Court Opinion, filed June 14, 2016, at 3-5) (internal citations and

footnotes omitted).

      Procedurally, on September 25, 2012, Appellant entered a negotiated

guilty plea at docket No. CP-51-CR-0008038-2012, to aggravated assault,

arson, conspiracy, false imprisonment and trafficking of persons (Victim #1).

Appellant also entered a negotiated guilty plea at docket No. CP-51-CR-

0008039-2012, to conspiracy, trafficking of persons, and simple assault

(Victim #2).   In exchange for Appellant’s guilty plea, the Commonwealth

agreed to recommend an aggregate sentence at both dockets of fifteen (15)

to thirty (30) years’ imprisonment and to ask the court to enter nolle

prosequi for other more serious charges including attempted murder.

Appellant executed a written guilty plea colloquy and the court performed a

thorough oral plea colloquy to confirm Appellant’s plea was knowing,

intelligent, and voluntary.   Appellant expressly stated in his written plea

colloquy and during the oral plea colloquy that he had not ever been treated

for mental illness.

      Appellant waived preparation of a pre-sentence investigation (“PSI”)

report and mental health evaluation, and proceeded to sentencing on

November 5, 2012.       The court imposed the recommended aggregate

sentence of fifteen (15) to (30) years’ incarceration.         Plea counsel

acknowledged at sentencing that the parties had agreed to some sentences

above the standard range guidelines in light of the Commonwealth’s


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agreement to drop other more serious charges.        Appellant did not file a

direct appeal.

      On April 10, 2013, Appellant timely filed a pro se PCRA petition,

claiming the court should not have accepted his guilty plea which agreed to

some sentences above the standard range guidelines, where Appellant was

the least culpable defendant.    Appellant also baldly asserted plea counsel

had unlawfully induced his guilty plea. The court appointed PCRA counsel,

who filed on May 11, 2015, a motion to withdraw and a “no-merit” letter

pursuant to Commonwealth v. Turner, 518 Pa. 491, 544 A.2d 927 (1988)

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

On June 26, 2015, the court issued notice of its intent to dismiss the petition

without a hearing per Pa.R.Crim.P. 907. Appellant responded pro se on July

13, 2015.   In his response, Appellant claimed for the first time that plea

counsel was ineffective for failing to investigate Appellant’s mental health.

Appellant also raised a layered ineffectiveness claim, challenging PCRA

counsel’s failure to raise plea counsel’s ineffectiveness in an amended PCRA

petition. On August 14, 2015, PCRA counsel asked the court for additional

time to confer with Appellant about these new allegations. Counsel informed

the court on November 30, 2015, that no amended PCRA petition was

necessary. The court denied PCRA relief on December 1, 2015.

      Appellant timely filed a pro se notice of appeal on December 14, 2015.

The court did not order Appellant to file a concise statement of errors


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complained of on appeal pursuant to Pa.R.A.P. 1925(b), and Appellant filed

none. On July 22, 2016, PCRA counsel filed an application in this Court to

withdraw, stating the PCRA court had not ruled on his prior petition to

withdraw.3      On August 11, 2016, this Court expressly permitted PCRA

counsel to withdraw.

       Appellant raises two issues for our review:

          APPELLANT MOVES THIS HONORABLE COURT TO REMAND
          THE INSTANT CASE TO THE COURT OF COMMON PLEAS OF
          PHILADELPHIA “CCP”…WITH AN ORDER TO APPOINT
          COMPETENT COUNSEL, THUS, PERMITTING MEANINGFUL
          POST CONVICTION REVIEW.

          [PLEA] COUNSEL AS WELL AS PCRA COUNSEL WERE
          INEFFECTIVE FOR FAILING TO INVESTIGATE APPELLANT’S
          PSYCHIATRIC HISTORY.

(Appellant’s Brief at 4).

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

examining whether the record evidence supports the court’s determination

and whether the court’s decision is free of legal error. Commonwealth v.

Ford, 947 A.2d 1251 (Pa.Super. 2008), appeal denied, 598 Pa. 779, 959

A.2d 319 (2008). This Court grants great deference to the findings of the

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

____________________________________________


3
 The PCRA court entered two orders denying PCRA relief in this case, one on
November 30, 2015 (mentioning only docket No. 8039-2012), and one on
December 1, 2015 (mentioning all relevant dockets). The November 30,
2015 order stated: “Attorney relieved.” The December 1, 2015 order did not
mention counsel’s request to withdraw.



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

593 Pa. 754, 932 A.2d 74 (2007).        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. Hardcastle, 549 Pa. 450, 701 A.2d 541

(1997).

      In his first issue, Appellant argues that his review of the record in this

case shows PCRA counsel demonstrated a “lack of candor” to the court.

Specifically, Appellant asserts that, after receipt of Appellant’s pro se

response to Rule 907 notice, PCRA counsel told the court it was the first time

counsel had heard about Appellant’s purported mental health issues.

Appellant contends PCRA counsel’s statement was untrue because Appellant

notified PCRA counsel numerous times since counsel’s appointment about

Appellant’s   ongoing   mental   illness.   Appellant   claims   PCRA   counsel

abandoned him by filing a Turner/Finley letter and declining to file an

amended PCRA petition raising Appellant’s mental health issues. Appellant

concludes he is entitled to meaningful appellate review of his first PCRA

petition, which necessitates the appointment of competent counsel to

advance his claims, and this Court should remand for the appointment of

new counsel to represent Appellant in this appeal. We disagree.

      Generally, an indigent PCRA petitioner is entitled to the appointment of


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counsel during litigation of the petitioner’s first PCRA petition including any

appeal.    See Pa.R.Crim.P. 904(C), (F)(2) (explaining court shall appoint

counsel to represent indigent defendant on first PCRA petition; appointment

of   counsel    shall    be    effective    throughout      post-conviction   collateral

proceedings, including any appeal from disposition of petition for post-

conviction collateral relief).       Nevertheless, where the court accepts a

Turner/Finley no-merit letter and permits counsel to withdraw, the

petitioner is not entitled to the appointment of new PCRA counsel, and he

must retain private counsel or proceed pro se in future proceedings.

Commonwealth v. Rykard, 55 A.3d 1177, 1183 n.1 (Pa.Super. 2012),

appeal denied, 619 Pa. 714, 64 A.3d 631 (2013) (citing Commonwealth v.

Maple, 559 A.2d 953 (Pa.Super. 1989) (holding that where appointed post-

conviction     counsel   has     been      permitted   to    withdraw    pursuant    to

Turner/Finley, appointment of new counsel is unnecessary and improper)).

        Instantly, Appellant timely filed a pro se PCRA petition on April 10,

2013.      The court appointed PCRA counsel, who subsequently filed a

Turner/Finley “no merit” letter and a petition to withdraw as counsel. This

Court expressly permitted counsel to withdraw on August 11, 2016. Thus,

Appellant is no longer entitled to the appointment of counsel to assist him

with this appeal. See Rykard, supra; Maple, supra.

        In his second issue, Appellant argues plea counsel was ineffective for

failing to investigate Appellant’s mental health, and PCRA counsel was


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ineffective for failing to raise plea counsel’s ineffectiveness in an amended

PCRA petition. Appellant asserts he has a long history of mental illness and

has been involuntarily committed several times. Appellant maintains he is a

“people pleaser” and would have done anything his co-defendant/ex-wife

had asked him to do.       Appellant claims his statements at the guilty plea

colloquy denying prior mental health treatment are “immaterial.” Appellant

insists his mental health is particularly relevant in this case because the

court did not have the benefit of a PSI report prior to sentencing. If plea

counsel had investigated Appellant’s mental health, Appellant claims he then

might have been able to use that history to advance a diminished capacity

defense if he proceeded to trial or to obtain a lighter sentence or more

favorable plea deal. Appellant contends he notified PCRA counsel about his

mental health issues on numerous occasions.              Appellant submits PCRA

counsel failed to represent Appellant adequately by declining to present plea

counsel’s ineffectiveness in an amended PCRA petition. Appellant concludes

plea counsel and PCRA counsel were ineffective, and this Court should

vacate the order denying PCRA relief and remand for further proceedings.

We disagree.

      The     law   presumes    counsel    has   rendered     effective   assistance.

Commonwealth v. Gonzalez, 858 A.2d 1219, 1222 (Pa.Super. 2004),

appeal denied, 582 Pa. 695, 871 A.2d 189 (2005). To prevail on a claim of

ineffective   assistance   of   counsel,    a    petitioner   must   show,    by   a


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preponderance of the evidence, ineffective assistance of counsel, which, in

the circumstances of the particular case, so undermined the truth-

determining process that no reliable adjudication of guilt or innocence could

have taken place. Commonwealth v. Turetsky, 925 A.2d 876 (Pa.Super.

2007), appeal denied, 596 Pa. 707, 940 A.2d 365 (2007).         The petitioner

must demonstrate: “(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.”

Id. at 880. “The petitioner bears the burden of proving all three prongs of

the test.” Id.

      To demonstrate a “layered” claim of current counsel’s ineffectiveness

has arguable merit, the petitioner must develop all three prongs of the test

as to the ineffectiveness of prior counsel. Commonwealth v. Brown, 582

Pa. 461, 474, 872 A.2d 1139, 1146 (2005).          “Stated differently, if the

petitioner fails to develop any of the three…prongs regarding the underlying

issue of trial counsel ineffectiveness, he…will have failed to establish the

arguable merit prong of the claim of [subsequent] counsel’s ineffectiveness.”

Id.   “Only when the petitioner has adequately pled and presented the

ineffectiveness of [prior] counsel pursuant to the [three prong] test will this

Court proceed to review the layered claim to determine whether he…has

proven [subsequent] counsel’s ineffectiveness.” Id. (emphasis in original).


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“With regard to an attorney’s duty to investigate [a defendant’s mental

health], …the reasonableness of a particular investigation depends upon

evidence known to counsel, as well as evidence that would cause a

reasonable attorney to conduct a further investigation.” Commonwealth v.

Willis, 68 A.3d 997, 1002 (Pa.Super. 2013). See also Commonwealth v.

Lewis, 560 Pa. 240, 743 A.2d 907 (2000) (holding neither trial nor

appellate counsel was ineffective for failing to investigate whether appellant

suffered from brain damage or serious mental illness where appellant

showed no indication of mental illness during pre-trial proceedings or at

trial).

          Further, a PCRA petitioner cannot raise a claim of trial counsel’s

ineffectiveness for the first time in response to Rule 907 notice; the

petitioner must instead seek leave to amend his petition.       See Rykard,

supra at 1192 (explaining appellant could not raise claim of trial counsel’s

ineffectiveness for first time in response to Rule 907 notice; to aver properly

new non-PCRA counsel ineffectiveness claim, petitioner must seek leave to

amend his petition).4

          Instantly, on June 26, 2015, the court issued Rule 907 notice of its
____________________________________________


4
 Conversely, the response to Rule 907 notice is the first opportunity for a
petitioner to aver PCRA counsel’s ineffectiveness. See Commonwealth v.
Smith, 121 A.3d 1049 (Pa.Super. 2015) (explaining response to Rule 907
notice is opportunity for petitioner to object to PCRA counsel’s effectiveness;
petitioner’s failure to raise ineffectiveness of PCRA counsel after receipt of
Rule 907 notice results in waiver of claim).



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intent to dismiss Appellant’s PCRA petition without a hearing. On July 13,

2015, Appellant responded pro se and asserted for the first time that plea

counsel was ineffective for failing to investigate Appellant’s mental health.

Significantly, Appellant had omitted this claim from his pro se PCRA petition

and PCRA counsel did not mention it in his Turner/Finley no-merit letter.

As well, Appellant did not seek leave to amend his petition to raise this new

claim.     Therefore, Appellant’s challenge to plea counsel’s ineffectiveness is

waived. See Rykard, supra.

      Moreover, even if Appellant had properly preserved his claim of plea

counsel’s ineffectiveness, it would merit no relief. During his oral guilty plea

colloquy and in his written plea colloquy, Appellant expressly stated he had

not been treated for mental illness. (See N.T. Guilty Plea Hearing, 9/25/12,

at 10); (Written Guilty Plea Colloquy, 9/25/12, at 1) (stating: “I have never

seen a doctor or been in a hospital for any mental health problems—I can

understand what is going on.        I am not under the influence of drugs or

alcohol.     I have not taken any medicine in the last week”).        Appellant

actively participated in his guilty plea and sentencing proceedings, stating he

was “more than satisfied” with plea counsel’s representation (see N.T.,

9/25/12, at 28) and providing a detailed allocution at sentencing expressing

his regret and remorse for his crimes (see N.T. Sentencing, 11/5/12, at 6-

7). At no time during either proceeding did Appellant exhibit signs that he

suffered from any mental health issues. In fact, Appellant expressly stated


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that he wanted to thank plea counsel and the prosecutor because his “crime

was far worse than what [he pled] guilty to” and “[the sentence] could have

been worse.” (Id.) Under these circumstances, plea counsel had no reason

to investigate Appellant’s mental health. See Lewis, supra; Willis, supra.

      Further, to the extent Appellant suffers from any mental health issues,

a diminished capacity defense would be inapplicable here because Appellant

was not charged with or did not plead guilty to first-degree murder.           See

Commonwealth v. Cuevas, 574 Pa. 409, 832 A.2d 388 (2003) (explaining

diminished capacity is extremely limited defense, which requires extensive

psychiatric testimony establishing defendant suffered from one or more

mental disorders which prevented him from formulating specific intent to

kill; when defendant asserts successful diminished capacity defense to

negate specific intent to kill, first-degree murder is reduced to third-degree

murder).

      Additionally, to the extent Appellant suggests plea counsel was

ineffective for failing to order a PSI report, Appellant ignores the fact that he

entered a negotiated plea agreement, including a sentence; and the court

imposed the agreed-upon sentence. Appellant’s claims that an investigation

into his mental health might have secured a more favorable plea deal or

more lenient sentence are mere speculation.              Consequently, Appellant

cannot     establish   prejudice   with   respect   to   plea   counsel’s   alleged

ineffectiveness. See Turetsky, supra. Because Appellant failed to satisfy


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the test concerning plea counsel’s alleged ineffectiveness, his layered claim

of PCRA counsel’s ineffectiveness lacks arguable merit and necessarily fails

as well. See Brown, supra. Accordingly, we affirm.

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/17/2017




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