J-S02030-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

ABDUL MUSSAWIR JAMES

                            Appellant                  No. 231 EDA 2015


                Appeal from the PCRA Order September 2, 2014
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0000995-2008


BEFORE: SHOGAN, J., LAZARUS, J., and STABILE, J.

MEMORANDUM BY LAZARUS, J.:                            FILED MARCH 08, 2016

        Abdul Mussawir James appeals, nunc pro tunc, from the order of the

Court of Common Pleas of Philadelphia County that dismissed his petition

filed pursuant to the Post-Conviction Relief Act (PCRA).1 Counsel for James

had filed with this Court a Turner/Finley letter and an application to

withdraw as counsel.2        After our review, we affirm the PCRA court’s order

and grant counsel’s petition to withdraw.

        This Court previously set forth the underlying facts of the case as

follows:


____________________________________________


1
    42 Pa.C.S. §§ 9541-9546.
2
  See Commonwealth v. Turner, 544 A.2d 917                        (Pa.   1988);
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988).
J-S02030-16


     James was arrested and charged with [possession of a controlled
     substance and possession with intent to deliver a controlled
     substance (“PWID”)] based on police observation of a single sale
     of Oxycodone by James to an unidentified white male. On April
     28, 2008, James filed a motion to suppress the physical
     evidence, arguing that he was stopped without reasonable
     suspicion that criminal activity was afoot and was arrested
     without probable cause that a crime was committed. A hearing
     was held on the motion on August 11, 2008. Agent John
     Brennan (“Agent Brennan”) testified as a narcotics expert
     regarding his observations of what he believed to be a drug
     transaction between James and the unidentified white male. He
     stated that he was conducting surveillance in the 900 block of
     North 65th Street based on numerous complaints of drug activity
     in the area. He observed the unidentified white male walk up
     and down the street “looking around constantly,” and then sit
     down on the steps in front of 925 North 65th Street.

     Agent Brennan then saw James leave a conversation with two
     individuals at the 6400 block of Jefferson Street, walk directly
     over to the unidentified white male, pull out an amber colored
     pill bottle, pour some of its contents into the male’s hand, and
     place the pill bottle back in his pocket. The male then gave
     James something that James also put into his pocket, although
     Agent Brennan testified he could not see what was given to
     James. Agent Brennan stated that based on his expertise and
     experience, he believed a drug transaction had just occurred and
     radioed backup officers with a description of James. Police
     stopped James, went into his pant pockets, and removed $16.00
     and the amber pill bottle, which was found to contain 13
     Oxycodone pills.

     The trial court indicated that it found Agent Brennan’s testimony
     to be credible, and based on his testimony, denied the
     suppression motion. A bench trial immediately followed, wherein
     Agent Brennan’s prior testimony was incorporated into the
     record. He was briefly recalled to testify, at which time he
     indicated that the pill bottle bore James’ name and indicated that
     the prescription had been filled on the day of this incident, June
     4, 2007.

     James testified that he had a prescription for Oxycodone because
     he had recently been hit by a car and was experiencing back and
     arm pain. He stated that the unidentified white male was his
     neighbor, Joey, and that he merely said hello to Joey as James

                                   -2-
J-S02030-16


      exited the building. He denied selling or providing Joey with any
      drugs. He testified that he was on the corner talking to friends
      when a police officer “attacked” him and he was arrested.
      James alleged that the police officer told him that unless he
      could provide them with a “big fish,” James would be charged
      with selling drugs.

      The trial court indicated that it found James’ version of events to
      be incredible. He was convicted of possession of a controlled
      substance and PWID.

Commonwealth v. James, 46 A.3d 776, 777-78 (Pa. Super. 2012)

(citations omitted).

      On October 10, 2008, James was sentenced to two concurrent terms

of 3 to 6 years’ incarceration. Following a timely direct appeal to this Court,

the matter was remanded to the trial court, which on November 1, 2010,

vacated the sentence imposed for possession because it merged with the 3-6

year sentence for PWID.

      On June 5, 2012, this Court, en banc, affirmed James’ judgment of

sentence.

      On August 14, 2012, James filed a pro se PCRA petition, and the court

appointed Michael Doyle, Esquire to represent him. Attorney Doyle filed a

Turner/Finley    letter,   and   the   court   issued   an   order   pursuant   to

Pa.R.Crim.P. 907, advising James that the court intended to dismiss his

petition without a hearing. On September 2, 2014, the court dismissed the

PCRA petition and granted counsel’s request to withdraw.

      James did not file a timely appeal of the court’s September 2, 2014

order.      However, on December 15, 2014, upon review of                 pro se

correspondence from James asserting problems with the service of the Rule

                                       -3-
J-S02030-16



907 notice, the court reinstated his PCRA appellate rights and appointed new

counsel, Irina G. Ehrlich, Esquire to represent James. On January 8, 2015,

James filed a notice of appeal nunc pro tunc.

     First, we determine whether PCRA counsel has complied with the

technical requirements of Turner/Finley:

     Counsel petitioning to withdraw from PCRA representation must
     proceed under [Turner/Finley and] . . . must review the case
     zealously. Turner/Finley counsel must then submit a “no-
     merit” letter to the trial court, or brief on appeal to this Court,
     detailing the nature and extent of counsel’s diligent review of the
     case, listing the issues which petitioner wants to have reviewed,
     explaining why and how those issues lack merit, and requesting
     permission to withdraw.        Counsel must also send to the
     petitioner: (1) a copy of the “no merit” letter/brief; (2) a copy
     of counsel’s petition to withdraw; and (3) a statement advising
     petitioner of the right to proceed pro se or by new counsel.
     Where counsel submits a petition and no-merit letter that satisfy
     the technical demands of Turner/Finley, the court — trial court
     or this Court — must then conduct its own review of the merits
     of the case. If the court agrees with counsel that the claims are
     without merit, the court will permit counsel to withdraw and
     deny relief.

Commonwealth v. Doty, 48 A.3d 451, 454 (Pa. Super. 2012) (citations

omitted). If counsel’s petition and no-merit letter satisfy Turner/Finley, we

then conduct an independent review of the merits of the case. If this Court

agrees with counsel that the claims are meritless, we will permit counsel to

withdraw and deny relief. Commonwealth v. Wrecks, 931 A.2d 717, 721

(Pa. Super. 2007) (citing Commonwealth v. Mosteller, 633 A.2d 615, 617

(Pa. Super. 1993)).




                                    -4-
J-S02030-16



        Here, James’ counsel has complied with the technical requirements of

Turner/Finley. She forwarded to James a copy of the brief and the petition

to withdraw along with a letter informing him of his right to hire private

counsel or proceed pro se. In the brief, counsel sets forth the claims that

James sought to raise before this Court. Counsel presents the background

of the case, and an explanation as to why the record does not support the

claims raised by James in his PCRA petition. Accordingly, we proceed with

the merits of the appeal.

        On appeal, James raises three issues for our review:

        1. Did the trial court err by holding that James’ claim of trial
           counsel ineffectiveness for failing to properly present evidence
           of a valid prescription did not entitle him to relief?

        2. Did the PCRA court err by holding that James’ claim that his
           trial counsel was ineffective for failing to investigate or call a
           defense witness named Joey did not entitle him to relief?

        3. Did the PCRA court err by not holding an evidentiary hearing?

        Our standard of review regarding a PCRA court’s order is whether the

determination of the PCRA court is supported by evidence of record and is

free from legal error. The PCRA court’s findings will not be disturbed unless

there    is   no   support   for   those   findings   in   the   certified   record.

Commonwealth v. Garcia, 23 A.3d 1059, 1061 (Pa. Super. 2011) (citing

Commonwealth v. Smith, 995 A.2d 1143, 1149 (Pa. 2010).

        To be eligible for relief under the PCRA, James must prove by a

preponderance of the evidence that his conviction resulted from “ineffective

assistance of counsel which, in the circumstances of the particular case so


                                        -5-
J-S02030-16



undermined the truth-determining process that no reliable adjudication of

guilt or innocence could have taken place.”        42 Pa.C.S. § 9543(a)(2)(ii).

“Counsel is presumed to be effective and the burden of demonstrating

ineffectiveness rests on appellant.”    Commonwealth v. Ousley, 21 A.3d

1238, 1244 (Pa. Super. 2011). To prevail on an ineffectiveness claim, the

defendant must show that the underlying claim had arguable merit, counsel

had no reasonable basis for his or her action, and counsel’s action resulted

in prejudice to the defendant. Commonwealth v. Pierce, 527 A.2d 973,

975-77 (Pa. 1987).

      At trial, police officers testified that they found James in possession of

an amber pill bottle with a CVS pharmacy label indicating James’ name and

information about the contents.        James asserts that trial counsel was

ineffective for failing to present evidence that he had a valid prescription for

Oxycodone at the time of his arrest.         In James’ pro se PCRA petition he

stated:

      [James] was denied the right to effective assistance of counsel
      when trial counsel failed to procure evidence of [James’]
      innocence, namely, that the “PILL-BOTTLE” that [James’]
      prescription came in was labeled with the prescribing physician’s
      information, and was in police custody under property receipt
      2722780. In addition to the prescription information being on
      the bottle, counsel would have been able to subpoena the
      physician, [who] would have testified to the lawful[ness] of the
      prescription.

PCRA Petition, 8/14/12, at 1-2.

      Included in the record is the Turner/Finely letter submitted by the

first attorney appointed to represent James on his PCRA petition, Attorney

                                       -6-
J-S02030-16



Doyle. Attached as an exhibit to the Turner/Finley letter is a letter to CVS

Prescription Records in Woonsocket, Rhode Island seeking records for a

prescription for Oxycodone that was filled at a CVS for James. The request

included the following information from the pill bottle label:    (1) James’

name; (2) the prescription number; and (3) the name of the prescriber of

the medication, Dr. Samuel Peacock.       CVS informed counsel that James’

name did not match any of its records.

      Attorney Doyle also sent a request to Dr. Peacock, who responded that

he did not know James and never knowingly wrote any prescriptions for him.

      The diligent efforts of PCRA counsel to procure evidence supporting

James’ contention that he possessed the Oxycodone pursuant to a valid

prescription were fruitless. Under these circumstances, James has failed to

establish that he suffered prejudice from his trial counsel’s failure secure

evidence of a valid prescription. Accordingly, he is not entitled to relief on

this claim under the PCRA. See Pierce, supra.

      James next asserts that trial counsel was ineffective for failing to

investigate or call as a witness James’ neighbor Joey.        At trial, James

maintained that Joey was a neighbor he said hello to on the street, and not a

person to whom he sold drugs, as Agent Brennan testified.

      To prevail on a claim that trial counsel rendered ineffective assistance

by failing to call a witness, the defendant must show that: (1) the witness

existed; (2) the witness was available; (3) counsel was informed of the

existence of the witness or should have known of the witness’ existence; (4)

                                    -7-
J-S02030-16



the witness was prepared to cooperate and would have testified on

defendant's behalf; and (5) that the absence of the witness’ testimony

prejudiced the defendant. Commonwealth v. Brown, 767 A.2d 576, 582

(Pa. Super. 2001). James has the burden of showing that trial counsel had

no reasonable basis for failing to call a particular witness. Commonwealth

v. Small, 980 A.2d 549, 560 (Pa. 2009).

      Although James did not raise this issue in his PCRA petition, he

informed counsel that Joey would testify that he shook his hand and walked

away before the incident. PCRA counsel reviewed trial counsel’s file, which

included a request dated April 20, 2008 for an investigator to locate Joey at

923 North 65th St. and take a statement. This establishes that trial counsel

investigated the issue.

      PCRA counsel later tried to obtain the witness’s last name from James,

but to no avail. Despite several attempts, PCRA counsel was unable to reach

James’ stepmother, who according to James, lived next door to Joey.

Accordingly, James is unable to prove that Joey exists and was willing to

cooperate. In light of these circumstances, James cannot establish that trial

counsel was ineffective for not calling Joey as a witness. Accordingly, James

is not entitled to PCRA relief. See Brown, supra.

      James next asserts that the PCRA court erred by dismissing his

petition without a hearing.

      The PCRA court has the discretion to dismiss a petition without a
      hearing when the court is satisfied “that there are no genuine
      issues concerning any material fact, the defendant is not entitled

                                    -8-
J-S02030-16


       to post-conviction collateral relief, and no legitimate purpose
       would be served by further proceedings.” Commonwealth v.
       Paddy, 15 A.3d 431, 442 (Pa. 2011) (quoting Pa.R.Crim.P.
       909(B)(2)). “To obtain reversal of a PCRA court's decision to
       dismiss a petition without a hearing, an appellant must show
       that he raised a genuine issue of fact which, if resolved in his
       favor, would have entitled him to relief, or that the court
       otherwise abused its discretion in denying a hearing.”       Id.
       (quoting Commonwealth v. D'Amato, 856 A.2d 806, 820 (Pa.
       2004)).

Commonwealth v. Roney, 79 A.3d 595, 604-05 (Pa. 2013). In light of the

PCRA court’s conclusion that James’ claims lacked merit, it did not abuse its

discretion in denying the petition without a hearing.

       Order affirmed.3

       STABILE, J., Joins the majority.

       SHOGAN, J., Concurs in the result.



____________________________________________


3
  In its brief, the Commonwealth argues that the court’s order reinstating
James’ right to appeal was a legal nullity. The trial court sentenced James
to three to six years’ incarceration on October 10, 2008. However, it
reinstated James’ appellate rights on December 15, 2014.                The
Commonwealth notes, “it cannot be inferred from the docket that he was
currently serving a sentence, since the maximum term of his sentence was
six years and the order reinstating his appeal rights was entered six years
and two months after sentencing date.” Appellee’s Brief, at 9.

Our review of the sentencing hearing transcript indicates that at the time
James committed the offenses, he was on probation. N.T. Sentencing
Hearing, 10/10/08, at 10-12. In light of his conviction in this case, it is
reasonable to assume that his probation was revoked, thus delaying the
commencement of his three to six year sentence. We also note that on July
20, 2015, counsel sent her Turner/Finley letter to James at SCI Forrest.
Under these circumstances, we decline the Commonwealth’s request that we
quash the appeal, and instead render this decision on the merits.



                                           -9-
J-S02030-16




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/8/2016




                          - 10 -
