J-S24045-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,               :     IN THE SUPERIOR COURT OF
                                            :           PENNSYLVANIA
                   Appellee                 :
                                            :
             v.                             :
                                            :
FALANDEZ MONROE JAMES,                      :
                                            :
                   Appellant                :          No. 3516 EDA 2014

          Appeal from the PCRA Order entered on September 30, 2014
               in the Court of Common Pleas of Chester County,
                Criminal Division, No. CP-15-CR-0002751-2010

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

MEMORANDUM BY MUSMANNO, J.:                             FILED MAY 11, 2015

        Falandez Monroe James (“James”) appeals the Order denying his first

Petition filed pursuant to     the   Post   Conviction Relief   Act (“PCRA”). 1

Additionally, James’s appellate counsel, Maria Heller, Esquire (“Attorney

Heller”), has filed a Petition to Withdraw as counsel and an accompanying




1
    See 42 Pa.C.S.A. §§ 9541-9546.
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brief (hereinafter the “Turner/Finley brief”).2     We grant Attorney Heller’s

Petition to Withdraw and affirm the PCRA court’s Order.

        On November 4, 2011, a jury convicted James of one count each of

voluntary manslaughter, firearms not to be carried without a license and

persons not to possess firearms.3 The trial court sentenced James to serve

an aggregate prison sentence of fifteen to thirty-three years. On September

17, 2013, this Court affirmed James’s judgment of sentence.                 See

Commonwealth v. James, 87 A.3d 384 (Pa. Super. 2013) (unpublished

memorandum).4

        On November 4, 2013, James, pro se, filed the instant PCRA Petition.

The PCRA court appointed PCRA counsel, who filed an amended Petition.

Following a hearing, the PCRA court denied the Petition on September 30,

2014. James, pro se, filed a timely Notice of Appeal, and the PCRA court


2
 Attorney Heller erroneously seeks to withdraw under 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). We will refer to Attorney Heller’s Anders
brief as a Turner/Finley brief.

3
    See 18 Pa.C.S.A. §§ 2503, 6106(a)(1), 6105(a).
4
  The facts giving rise to James’s conviction are set forth in this Court’s prior
Opinion affirming James’s judgment of sentence. See James, 87 A.3d 384
(unpublished memorandum, at 1-6).


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appointed Attorney Heller as appellate counsel.       In response to the PCRA

court’s Order to file a concise statement of matters complained of on appeal

pursuant to Pa.R.A.P. 1925(b), Attorney Heller filed with this Court a notice

of intent to withdraw, and thereafter filed a Petition to Withdraw as counsel

and a Turner/Finley brief.

      In the Turner/Finley brief, Attorney Heller raises the following issues

for our review:

      1. Whether the PCRA court erred in denying relief based on []
         trial counsel’s ineffectiveness for failing to interview Duboise
         Perry [“Ms. Perry”]?

      2. Whether [the] PCRA court erred in denying relief based on []
         trial counsel’s ineffectiveness for failing to call Farren
         Sweeney [(“Sweeney”) to testify at trial]?

      3. Whether [the] PCRA court erred in denying relief based on []
         trial counsel’s ineffectiveness for failing to call Jayron Perry
         [(“Jayron”) to testify at trial]?

      4. Whether [the] PCRA court erred in denying relief based on []
         trial counsel’s ineffectiveness for failing to provide [James]
         with discovery[,] so that [James] could aid in [the]
         preparation of his defense?

      5. Whether [the] PCRA court erred in denying relief based on []
         trial counsel’s ineffectiveness for failing to object with regard
         to the trial court’s jury instructions placing undue emphasis
         on three types of homicide?

Turner/Finley Brief at 4 (issues renumbered and reformatted for ease of

disposition).

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

Attorney   Heller’s   Petition   to   Withdraw   as   counsel.    Pursuant   to



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Turner/Finley, an independent review of the record by competent counsel

is required before withdrawal on collateral appeal is permitted.           See

Commonwealth v. Pitts, 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 PCRA court conducting its own independent review of the
         record; and

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

See id. 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).

      Here, in the Turner/Finley brief, Attorney Heller described the extent

of her review, identified the issues that James seeks to raise, and explained


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why the issues lack merit. In addition, Attorney Heller provided James with

a notice of her intention to seek permission to withdraw from representation,

a copy of the Turner/Finley brief, and advised James of his rights in lieu of

representation.   Thus, we conclude that Attorney Heller 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 James’s claims to ascertain whether they entitle him to relief.5

      In reviewing the denial of a PCRA Petition, we examine whether the

PCRA court’s determination “is supported by the record and free of legal

error.”   Commonwealth v. Rainey, 928 A.2d 215, 223 (Pa. 2007)

(citations omitted). The PCRA court’s credibility determinations are binding

on this Court when they are supported by the record. See Commonwealth

v. Johnson, 966 A.2d 523, 532, 539 (Pa. 2009).           However, this Court

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

See Commonwealth v. Rios, 920 A.2d 790, 810 (Pa. 2007).

      To succeed on an ineffectiveness claim, James must demonstrate by

the preponderance of the evidence that

      (1) the underlying legal claim was of arguable merit; (2) counsel
      had no reasonable strategic basis for his action or inaction; and
      (3) the petitioner was prejudiced -- that is, but for counsel’s

5
 We note that James has filed neither a pro se brief nor retained alternate
counsel for this appeal.


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      deficient stewardship, there is a reasonable likelihood the
      outcome of the proceedings would have been different.

Commonwealth v. Pierce, 527 A.2d 973, 975 (Pa. 1987).             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 issue, James contends that trial counsel was ineffective for

failing to interview Ms. Perry.   Turner/Finley Brief at 24.    James asserts

that, had his trial counsel interviewed Ms. Perry, her testimony could have

been favorable to James. Id. at 25.

             There are two requirements for relief on an ineffectiveness
      claim for a failure to present witness testimony. The first
      requirement is procedural.      The PCRA requires that, to be
      entitled to an evidentiary hearing, a petitioner must include in
      his PCRA petition “a signed certification as to each intended
      witness stating the witness’s name, address, date of birth and
      substance of testimony.”         42 Pa.C.S.A. § 9545(d)(1);
      Pa.R.Crim.P. 902(A)(15).         The second requirement is
      substantive. Specifically, when raising a claim for the failure to
      call a potential witness, to obtain relief, a petitioner must
      establish that: (1) the witness existed; (2) the witness was
      available; (3) counsel was informed or should have known of the
      existence of the witness; (4) the witness was prepared to
      cooperate and would have testified on defendant’s behalf; and
      (5) the absence of such testimony prejudiced him and denied
      him a fair trial.

Commonwealth v. Reid, 99 A.3d 427, 438 (Pa. 2014).                 “Failure to

substantially comply with the requirements of [section 9545(d)(1)] shall




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render the proposed witness’s testimony inadmissible.”           42 Pa.C.S.A.

§ 9545(d)(1).

      At the evidentiary hearing conducted by the PCRA court, James’s PCRA

counsel conceded that James’s ineffectiveness claim relating to Ms. Perry

lacked merit, as (1) no certification had been made for that witness, in

violation of 42 Pa.C.S.A. § 9545(d)(1) and Pa.R.Crim.P. 902(A)(15); and (2)

she did not appear at the PCRA hearing.        See N.T., 9/8/14, at 124-25.

Thus, the record supports the PCRA court’s denial of James’s first

ineffectiveness claim, as related to Ms. Perry, based on James’s failure to

satisfy the procedural requirements       of section 9545(d)(1) and Rule

902(A)(15). See Reid, 99 A.3d at 438.6


6
   Even if James had satisfied the procedural requirements of his
ineffectiveness claim relating to Ms. Perry, we would have concluded that he
failed to satisfy the substantive requirements for his claim. Trial counsel
testified that Ms. Perry, who was the Commonwealth’s main witness at trial,
provided two different versions of the shooting to law enforcement prior to
the preliminary hearing, and then provided a “totally different” version of the
shooting at the preliminary hearing. N.T., 9/8/14, at 27-29; see also id. at
35 (wherein trial counsel testified that Ms. Perry “probably gave five
different versions.”). Trial counsel further testified that he deliberately
chose not to interview Ms. Perry so that he could use her inconsistent
statements to destroy her credibility during her cross-examination at trial.
Id. at 29. Trial counsel indicated that, consistent with his trial strategy, he,
in fact, discredited Ms. Perry at trial, and that a decision to interview her
prior to trial would have been “foolish.” Id. at 28-30. Thus, even if James
had satisfied the procedural requirements of 42 Pa.C.S.A. § 9545(d)(1) and
Pa.R.Crim.P. 902(A)(15), he nevertheless failed to establish that trial
counsel had “no reasonable strategic basis” for not interviewing Ms. Perry, or
that, if trial counsel had interviewed Ms. Perry, “there is a reasonable
likelihood the outcome of the proceedings would have been different.”
Pierce, 527 A.2d at 975.



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      In his second issue, James contends that trial counsel was ineffective

for failing to call Sweeney to testify at trial. Turner/Finley Brief at 21.7

      At the PCRA hearing, trial counsel testified that he never attempted to

locate or interview Sweeney because he was never provided with her name.

N.T., 9/8/14, at 27. However, James testified that he provided Sweeney’s

name to trial counsel’s assistant in a telephone conversation.      Id. at 105.

Additionally, James’s mother, Lorraine Thompson (“Thompson”), testified

that she provided Sweeney’s name, number and address to trial counsel,

identifying Sweeney as a potential witness for her son’s defense. Id. at 80-

81, 95. Sweeney testified that, although she was present at the time of the

shooting, she never went to the police or reported what she saw. Id. at 73.

Sweeney further testified that no one had ever asked her to testify at

James’s trial, and that if she had been asked to testify, she would not have

been willing to testify. Id. at 66, 68.

      Based on the evidence, we conclude that, even if trial counsel had

been “informed or should have known of the existence of” Sweeney, James

failed to establish that Sweeney “was prepared to cooperate and would have

testified on [James’s] behalf.” Reid, 99 A.3d at 438. Therefore, the record




7
  We observe that PCRA counsel provided a signed certification for Sweeney,
in compliance with 42 Pa.C.S.A. § 9545(d)(1) and Pa.R.Crim.P. 902(A)(15).


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supports the PCRA court’s denial James’s second ineffectiveness claim, as it

relates to Sweeney.8

      In his third issue, James contends that trial counsel was ineffective for

failing to call Jayron to testify at trial.     Turner/Finley Brief at 21.

      Initially, we observe that James failed to provide a certification for

Jayron, in violation of 42 Pa.C.S.A. § 9545(d)(1) and Pa.R.Crim.P.

902(A)(15).   See N.T., 9/8/14, at 7-8, 11-12.     Moreover, Jaryon failed to

appear at the PCRA hearing, despite being subpoenaed to appear by James’s

PCRA counsel. See id. at 18, 76, 116, 133. Thus, the record supports the

PCRA court’s denial of James’s third ineffectiveness claim, as related to

Jayron, based on James’s failure to satisfy the procedural requirements of




8
  Notably, Sweeney testified that, prior to the PCRA hearing, at the request
of Thompson, she lied to PCRA counsel, and signed a statement wherein she
falsely certified that she saw the victim holding a gun prior to the shooting.
N.T., 9/8/14, at 51-62, 70. At the PCRA hearing, Sweeney admitted that
she did not see either James or the victim carrying a gun prior to the
shooting. Thus, James cannot establish that, if trial counsel had called
Sweeney as a witness at trial, her testimony (i.e., that she did not see either
James or the victim carrying a gun prior to the shooting) would have
changed the outcome of the proceedings. See Pierce, 527 A.2d at 975.



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section 9545(d)(1) and Rule 902(A)(15). See Reid, 99 A.3d at 438.9

      In his fourth issue, James contends that trial counsel was ineffective

for failing to “disclose, produce and review discovery materials” with James

prior to trial, resulting in James’s inability to assist in the preparation of his

defense. Turner/Finley Brief at 17.

      Here, trial counsel testified that he met with James several times,

including prior to and after the preliminary hearing, prior to various other

hearings, to prepare James for his testimony, and to review discovery with

him. See N.T., 9/8/14, at 16-17, 35. Trial counsel also communicated with

James by telephone.      Id. at 33.    Trial counsel testified that he did not

provide James with the discovery because he generally does not do so in

order to protect his incarcerated clients from other inmates, who might

inadvertently see the discovery and use the information contained therein to

the client’s disadvantage. Id. at 33-34. Trial counsel further testified that,

9
    Even if James had satisfied the procedural requirements of his
ineffectiveness claim relating to Jayron, we would have concluded that he
failed to satisfy the substantive requirements for his claim. Here, trial
counsel testified that he attempted to locate and interview Jayron prior to
the preliminary hearing, and that he had enlisted James’s family and friends
to assist him in locating Jayron. N.T., 9/8/14, at at 23. According to trial
counsel, despite the fact that “Coatsville is a small area,” “no one could find
[Jayron],” as he was either “hidden by his mother, [Ms.] Perry,” or “he didn’t
want to be found.” Id. at 23, 38. Trial counsel indicated that, had he been
able to locate Jayron, he would have put him on the witness stand. Id. at
38. Based on the evidence, we conclude that, even if James had satisfied
the procedural requirements of 42 Pa.C.S.A. § 9545(d)(1) and Pa.R.Crim.P.
902(A)(15), he nevertheless failed to establish that Jayron was “available” to
testify, or that he “was prepared to cooperate and would have testified on
[James’s] behalf.” Reid, 99 A.3d at 438.



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had James requested the discovery, he would have provided it to him. Id.

at 34-35. James, on the other hand, testified that he met with trial counsel

only once, on the night before his trial started.           Id. at 102, 106.

Additionally, James testified that, prior to his trial, he spoke with trial

counsel four or five times, and spoke with his assistant ten times, and that

“every single time” he requested his discovery, but trial counsel never

provided it to him. Id. at 103. James testified that he was provided with a

copy of his discovery prior to the PCRA hearing, and that he had reviewed

the discovery. Id. at 110. James testified that, based on his review of the

discovery, the only piece of evidence that he found in his discovery that he

believed could have changed the outcome of his case was Jayron’s grand

jury testimony.10 Id. at 111.

      Based on the evidence, we conclude that James has failed to establish

that trial counsel rendered ineffective assistance by failing to provide James

with the discovery.   As noted above, James failed to establish that Jayron

was “available” to testify, or that he “was prepared to cooperate and would

have testified on [James’s] behalf.” See Reid, 99 A.3d at 438. Thus, even

if James had been able to review of Jayron’s grand jury testimony prior to

trial, he has failed to show that there is “there is a reasonable likelihood that

the outcome of the proceedings would have been different.”         Pierce, 527


10
  Jayron testified to the grand jury that, right before the shooting, the victim
told Jayron that “Flock” was threatening to take the victim’s life and that the
victim “might have to shoot [Flock].” N.T., 9/8/14, at 19-22.


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A.2d 973, 975.11 Therefore, the record supports the PCRA court’s denial of

James’s ineffectiveness claim based on trial counsel’s failure to provide the

discovery to him.

      In his final issue, James contends that trial counsel was ineffective for

failing to object to the trial court’s wording of the jury instruction specifying

the three types of criminal homicide.      Brief for Appellant at 25.     James

asserts that the trial court should have “offered the jury the ‘fourth option

which is just not guilty by way of justification.’” Id. (citing N.T., 9/8/14, at

125-26).

      When the trial court instructed the jury, it read, verbatim, the 2012

Pennsylvania Suggested Standard Criminal Jury Instruction § 15.2501A

regarding criminal homicide. See N.T., 11/14/11, at 679-81. The trial court

also read, verbatim, the 2012 Pennsylvania Suggested Standard Criminal

Jury Instruction § 9.501 regarding justification (use of deadly force in self-

defense). See N.T., 11/14/11, at 674-78.

      Because our review of the record discloses that the trial court

specifically instructed the jury on justification, the legal claim underlying

James ineffectiveness claim lacks arguable merit. See Pierce, 527 A.2d at

975; see also Martin, 5 A.3d at 183 (stating that a failure to satisfy any

11
  We observe that, even if Jayron had been located and testified at trial,
James has failed to establish that Jayron’s trial testimony would have been
favorable to James’s case.      According to trial counsel, Jayron’s trial
testimony could have been damaging to James’s case, given that Jayron
described the victim as his “best friend” who was “almost like a brother” to
Jayron. See N.T., 9/8/14, at 20, 38-39.


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

Therefore,   the        record   supports   the   PCRA     court’s   denial   of   James’s

ineffectiveness claim based on trial counsel’s failure to object to the trial

court’s jury instruction on criminal homicide.

      For the foregoing reasons, we conclude that the PCRA court’s

determination      is    supported    by    the   record   and   free   of    legal   error.

Accordingly, we grant Attorney Heller’s Petition to Withdraw, and affirm the

PCRA court’s Order.

      Petition to Withdraw granted. Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 5/11/2015




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