J-S08002-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

CALVIN HENDERSON

                            Appellant                  No. 1177 WDA 2014


                  Appeal from the Order Entered June 25, 2014
               In the Court of Common Pleas of Allegheny County
                Criminal Division at No: CP-02-CR-0011250-2005


BEFORE: STABILE, DUBOW, and MUSMANNO, JJ.

MEMORANDUM BY STABILE, J.:                             FILED APRIL 19, 2016

       Appellant, Calvin Henderson, appeals from the June 25, 2014 order

dismissing his petition pursuant to the Post Conviction Relief Act (“PCRA”).

Counsel has filed a petition to withdraw representation,1 and Appellant has

filed a pro se application to amend his PCRA petition. We affirm the PCRA

court’s order, grant counsel’s petition to withdraw, and deny Appellant’s

application to amend.

       In July of 2006, a jury found Appellant guilty of rape, involuntary

deviate sexual intercourse, aggravated indecent assault, simple assault,




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1
    We will address the procedural irregularities of counsel’s petition below.
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kidnapping, and unlawful restraint.2 On November 15, 2006, the trial court

found Appellant to be a sexually violent predator (SVP) and sentenced him

to an aggregate 36 to 90 years of incarceration. Appellant’s post-sentence

motion was denied by operation of law on May 3, 2007. Appellant filed a

timely notice of appeal one week later, and this Court affirmed in a

unanimous memorandum filed on September 3, 2008. On June 30, 2009,

our Supreme Court granted allowance of appeal on one issue:               whether a

second search warrant was valid under the independent source doctrine.

This case involved two search warrants.           The trial court deemed the first

warrant    invalid   and    granted     Appellant’s   motion   to   suppress.    The

Commonwealth procured a second warrant based on the investigation of a

police officer who worked in the same department as the officer who

produced an insufficient affidavit in support of the first warrant.              The

Supreme Court held that the second warrant and search were valid, and

affirmed Appellant’s conviction in an opinion filed on April 25, 2012.

Commonwealth v. Henderson, 47 A.3d 797 (Pa. 2012), cert. denied, 133

S. Ct. 435 (2012).

       Appellant filed this timely PCRA petition on April 26, 2013.             In it,

Appellant alleged the Commonwealth introduced inadmissible evidence

garnered from the execution of the original, invalid search warrant. On May

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2
    18 Pa.C.S.A. §§ 3121, 3123, 3125, 2701, 2901, and 2902.



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12, 2014, appointed counsel filed a no merit letter and petition to withdraw

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

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

June 5, 2014, the PCRA court filed a notice of intent to dismiss. Appellant

filed pro se responses to the no merit letter and the notice of intent to

dismiss, and the PCRA court entered an order dismissing Appellant’s petition

on June 25, 2015.

     Appellant filed a timely pro se notice of appeal on July 21, 2014. The

PCRA court appointed new counsel to represent Appellant in this appeal.

Appellate counsel has filed a brief and petition to withdraw pursuant to

Anders v. California, 386 U.S. 738 (1967) and Commonwealth v.

Santiago, 978 A.2d 349 (Pa. 2009).         Since this is a PCRA proceeding,

counsel should have proceeded in accord with Turner/Finley. Nonetheless,

this Court typically accepts an Anders brief in lieu of a Turner/Finley no

merit letter because Anders provides greater protection to the petitioner.

Commonwealth v. Widgins, 29 A.3d 816, 817 n.2 (Pa. Super. 2011).

     A proper Turner/Finley filing must comply with the following:

            The Turner/Finley decisions provide the manner for post-
     conviction counsel to withdraw from representation.               The
     holdings of those cases mandate an independent review of the
     record by competent counsel before a PCRA court or appellate
     court can authorize an attorney’s withdrawal. The necessary
     independent review requires counsel to file a ‘no-merit’ letter
     detailing the nature and extent of his review and list each issue
     the petitioner wishes to have examined, explaining why those
     issues are meritless. The PCRA court, or an appellate court if the
     no-merit letter is filed before it, [. . .] then must conduct its own

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      independent evaluation of the record and agree with counsel that
      the petition is without merit. [Commonwealth v. Pitts, 981
      A.2d 875, 876 n.1 (Pa. 2009)]

            In Commonwealth v. Friend, 896 A.2d 607 (Pa. Super.
      2006) abrogated in part by Pitts, supra, this Court imposed
      additional requirements on counsel that closely track the
      procedure for withdrawing on direct appeal. Pursuant to Friend,
      counsel is required to contemporaneously serve upon his client
      his no-merit letter and application to withdraw along with a
      statement that if the court granted counsel's withdrawal request,
      the client may proceed pro se or with a privately retained
      attorney. Though Chief Justice Castille noted in Pitts that this
      Court is not authorized to craft procedural rules, the Court did
      not overturn this aspect of Friend as those prerequisites did not
      apply to the petitioner in Pitts. See Pitts, supra at 881
      (Castille, C.J., concurring).

            After the decision in Pitts, this Court held in [Widgins],
      that the additional procedural requirements of Friend were still
      applicable during collateral review.

Commonwealth v. Freeland, 106 A.3d 768, 774-75 (Pa. Super. 2014).

We have reviewed counsel’s purported Anders filing and found that it

complies sufficiently with Turner/Finley.    We therefore conduct our own

review of the record to determine whether Appellant’s appeal lacks merit.

      Counsel addresses a single issue in the brief:   whether trial counsel

was ineffective for failing to object when the Commonwealth introduced

evidence garnered from the invalid search warrant. “To the extent review of

the PCRA court’s determinations is implicated, an appellate court reviews the

PCRA court’s findings of fact to determine whether they are supported by the

record, and reviews its conclusions of law to determine whether they are

free from legal error.”   Commonwealth v. Spotz, 84 A.3d 294, 311 (Pa.



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2014). “The scope of review is limited to the findings of the PCRA court and

the evidence of record, viewed in the light most favorable to the prevailing

party at the trial level.” Id.

      We analyze an assertion of ineffective assistance as follows:

             [A] PCRA petitioner will be granted relief only when he
      proves, by a preponderance of the evidence, that his conviction
      or sentence resulted from the [i]neffective 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.
      Counsel is presumed effective, and to rebut that presumption,
      the PCRA petitioner must demonstrate that counsel’s
      performance was deficient and that such deficiency prejudiced
      him. In Pennsylvania, we have refined the [Strickland v.
      Washington, 466 U.S. 668 (1984)] performance and prejudice
      test into a three-part inquiry. Thus, to prove counsel ineffective,
      the petitioner must show that: (1) his underlying claim is of
      arguable merit; (2) counsel had no reasonable basis for his
      action or inaction; and (3) the petitioner suffered actual
      prejudice as a result. If a petitioner fails to prove any of these
      prongs, his claim fails.       Generally, counsel’s assistance is
      deemed constitutionally effective if he chose a particular course
      of conduct that had some reasonable basis designed to
      effectuate his client’s interests. Where matters of strategy and
      tactics are concerned, [a] finding that a chosen strategy lacked a
      reasonable basis is not warranted unless it can be concluded that
      an alternative not chosen offered a potential for success
      substantially greater than the course actually pursued.          To
      demonstrate prejudice, the petitioner must show that there is a
      reasonable probability that, but for counsel's unprofessional
      errors, the result of the proceedings would have been different.
      [A] reasonable probability is a probability that is sufficient to
      undermine confidence in the outcome of the proceeding.

Id. at 311-12 (internal citation and quotation marks omitted).

      Counsel’s    brief   explains   that   no   relief   is   due   because   the

Commonwealth did not introduce suppressed evidence at trial. Indeed, the



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trial transcript contains detailed testimony concerning the execution of the

second search warrant and the DNA evidence garnered therefrom.               N.T.

Trial, 7/10-12/2006, at 207-208, 244-267. In addition, the charts Appellant

attached to his pro se PCRA petition do not confirm that the Commonwealth

relied on excluded evidence.          Rather, the charts confirm that the

Commonwealth obtained samples of Appellant’s DNA on two occasions: one

after the original, defective search warrant, and one after the second, valid

warrant. Nothing in the record indicates the Commonwealth introduced the

former at trial.       We therefore agree with counsel’s conclusion that

Appellant’s argument lacks merit.

          In his response to the PCRA court’s notice of intent to dismiss,

Appellant asserted, among other things, that his sentence was manifestly

excessive.      Response to Notice of Intent to Dismiss, 6/25/2104, at 4.

Appellant raised this issue on direct appeal, but this Court deemed the issue

waived for noncompliance with Pa.R.A.P. 2119(f).         On collateral review, a

challenge to the trial court’s sentencing discretion lacks merit because it is

not cognizable under the PCRA. Assuming arguendo that Appellant intended

to challenge appellate counsel’s effectiveness, Appellant still is not entitled to

relief.

          We observe that the “proper standard of review when considering

whether to affirm the sentencing court’s determination is an abuse of

discretion....” Commonwealth v. Allen, 24 A.3d 1058, 1064 (Pa. Super.


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2011).     “An abuse of discretion may not be found merely because an

appellate court might have reached a different conclusion, but requires a

result of manifest unreasonableness, or partiality, prejudice, bias, or ill-will,

or such lack of support so as to be clearly erroneous[.] Id. “The rationale

behind such broad discretion and the concomitantly deferential standard of

appellate review is that the sentencing court is in the best position to

determine the proper penalty for a particular offense based upon an

evaluation of the individual circumstances before it.”        Id.    In addition,

§ 9781 of the Judicial Code governs this Court’s review.            42 Pa.C.S.A.

§ 9781.

       The record reflects that Appellants’ 36 to 90 year aggregate sentence

is comprised of consecutive, guideline-range sentences for rape, IDSI,

aggravated indecent assault, and kidnapping.3 N.T. Sentencing, 9/17/2007,

at 25-26. Given his age—58—at the time of sentencing, Appellant asserted

that his sentence is manifestly excessive because it amounts to a life

sentence.     The trial court addressed in response to Appellant’s Pa.R.A.P.

1925(b) statement on direct appeal:

             The Commonwealth related and detailed the severity of
       the victim’s trauma, the ongoing struggles of both the victim in
       India and her family remaining in the United States, and the
       desire of the entire family that Appellant ‘die in jail.’     In

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3
   The court imposed no further penalty for simple assault and unlawful
restraint.



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      conclusion,   the    Commonwealth        requested    consecutive
      sentencing on the five felony convictions.

             Appellant in his defense merely stated that he would ‘stick
      to his plea’ and that he and his co-defendant were not guilty.

            In agreeing with the Commonwealth and sentencing
      Appellant consecutively, the Court was aware of Appellant being
      58 years old at the time of sentencing; no details regarding
      Appellant’s health had been placed on the record other than the
      request by defense counsel that the Court consider Appellant’s
      ‘overall’ health.

            The Court found Appellant’s crime to be ‘heinous.’ The
      Court also considered Appellant’s conviction thirty years earlier
      for a nearly identical violent sexual crime and verbalized the
      concern that society be protected from Appellant.

Trial Court Opinion, 9/07/2011, at 16 (record citations omitted).

      We conclude Appellant’s sentencing challenge clearly lacks merit.

Under the circumstances before us, we do not believe Appellant’s argument

presents a substantial question for review. See 42 Pa.C.S.A. § 9781(b). “A

substantial question exits only when the appellant advances a colorable

argument that the sentencing judge’s actions were either: (1) inconsistent

with a specific provision of the Sentencing Code; or (2) contrary to the

fundamental     norms     which    underlie    the    sentencing    process.”

Commonwealth v. Austin, 66 A.3d 798, 808 (Pa. Super. 2013), appeal

denied, 77 A.3d 1258 (Pa. 2013). “[T]he imposition of consecutive, rather

than concurrent, sentences may raise a substantial question in only the most

extreme circumstances, such as where the aggregate sentence is unduly

harsh, considering the nature of the crimes and the length of imprisonment.”

Id.

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      Here, the trial court took account of Appellant’s brutal kidnapping and

rape of the victim, the impact on the victim and her family, Appellant’s prior

conviction for a similar offense, and the need to protect the public from

Appellant. We therefore cannot conclude that the aggregate sentence was

so unduly harsh as to raise a substantial question of the propriety of

imposing consecutive sentences. For these same reasons, we would discern

no abuse of discretion even if we addressed this issue on the merits.

Counsel was not ineffective for failing to preserve this issue on direct appeal.

      Our review of the record reveals no other potentially meritorious

arguments. Appellant unsuccessfully challenged the weight and sufficiency

of the evidence on direct appeal. Our Supreme Court rejected his argument

that the trial court erred in admitting evidence garnered from the second

search warrant. Henderson, 47 A.3d at 805.

      Finally, we are in receipt of Appellant’s March 10, 2016 application for

leave to file an amended PCRA petition.      Appellant argues his sentence is

illegal under Alleyne v. United States, 133 S. Ct. 2151 (2013), wherein

the Supreme Court held that the imposition of a mandatory minimum

sentence based on judicial fact finding violates the Sixth Amendment of the

United States Constitution.   Appellant argues Alleyne applies retroactively

under the Supreme Court’s analysis in Montgomery v. Louisiana, 136 S.

Ct. 718 (2016).     Thus, Appellant seeks leave to file an amended PCRA

petition challenging his sentence under Alleyne.         We deny Appellant’s


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application, as the trial court did not impose any mandatory minimum

sentences.4 N.T. Sentencing, 9/17/2007, at 25-26.5

       In summary, we have concluded the PCRA court did not err in

dismissing Appellant’s petition without a hearing. We also have concluded

that counsel’s filing complies sufficiently with Turner/Finley. We therefore

affirm the PCRA court’s order and grant counsel’s petition to withdraw.

       Order affirmed. Petition to withdraw granted. Application to Amend

denied.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/19/2016




____________________________________________


4
   We also direct Appellant’s attention to our Supreme Court’s opinion in
Commonwealth v. Lark, 746 A.2d 585, 588 (Pa. 2000), wherein the Court
held that a new petition must await the final resolution of any prior petition
pending on appeal.       The sixty-day filing deadline of § 9545(b)(2)
commences with the final resolution of the prior appeal. Id.
5
  Appellant has already filed one new PCRA petition while this appeal was
pending. We address the PCRA court’s dismissal of that petition at No. 318
WDA 2015.



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