J-S03005-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT
                                                          OF
                                                     PENNSYLVANIA
                         Appellee

                    v.

REGINALD CURRY,

                         Appellant                 No. 1923 EDA 2005


             Appeal from the PCRA Order Entered May 31, 2005
            In the Court of Common Pleas of Philadelphia County
                         Criminal Division at No(s):
                          CP-51-CR-0609751-2003
                          CP-51-CR-0609771-2003
                          CP-51-CR-0810361-2003
                          CP-51-CR-0810371-2003
                          CP-51-CR-0810381-2003
                          CP-51-CR-0900731-2003

BEFORE: BENDER, P.J.E., OLSON, J., and MUSMANNO, J.

MEMORANDUM BY BENDER, P.J.E.:                       FILED APRIL 16, 2019

      Appellant, Reginald Curry, appeals from the post-conviction court’s May

31, 2005 order dismissing his first petition filed pursuant to the Post

Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-9546.        In addition,

Appellant’s court-appointed PCRA counsel, Joseph Schultz, Esquire, petitions

this Court for leave to withdraw as counsel pursuant to Commonwealth v.

Turner, 544 A.2d 927 (Pa. 1988), and Commonwealth v. Finley, 550 A.2d

213 (Pa. Super. 1988) (en banc). We affirm the PCRA court’s order, and grant

Attorney Schultz’s petition to withdraw.
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        This case has a long and convoluted history, which we need not detail

here.    Instead, we briefly state that Appellant pled guilty to six counts of

robbery, and was sentenced to an aggregate term of 25-50 years’

imprisonment on January 23, 2004. He did not file post-sentence motions or

pursue a direct appeal from his judgment of sentence, and his judgment of

sentence became final on February 23, 2004. See 42 Pa.C.S. § 9545(b)(3)

(stating that judgment of sentence becomes final at the conclusion of direct

review or the expiration of the time for seeking the review); Pa.R.A.P. 903(a)

(directing that a notice of appeal to Superior Court must be filed within 30

days after the entry of the order from which the appeal is taken).1

        On August 12, 2004, Appellant filed a timely, pro se PCRA petition. In

that petition, Appellant asserted claims under 42 Pa.C.S. §§ 9543(a)(2)(i),

(ii), and (iii);2 however, the only elaboration Appellant gave in support of these

____________________________________________


1 Our review of the record shows that the thirtieth day after the entry of
Appellant’s judgment of sentence — which would ordinarily constitute the last
day of the appeal period pursuant to Rule 903 — fell on Sunday, February 22,
2004. We must omit that day from our computation of the appeal period.
See 1 Pa.C.S. § 1908 (“Whenever the last day of any such period shall fall on
Saturday or Sunday, … such day shall be omitted from the computation.”).
Therefore, the last day of the thirty-day appeal period fell on Monday,
February 23, 2004.

2Section 9543(a)(2)(i)-(iii) provides that, to be eligible for relief under the
PCRA, the petitioner must plead and prove by a preponderance of the
evidence, that his conviction or sentence resulted from, inter alia,
        (i) A violation of the Constitution of this Commonwealth or the
        Constitution or laws of the United States which, in the
        circumstances of the particular case, so undermined the truth-



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purported errors was that his guilty plea was unlawfully induced by his

counsel, and that his “[c]ounsel was ineffective for failing to suppress

identification due to [a] suggestive photographic array procedure and failure

to request a line up and lack of probable cause to arrest.” PCRA Petition,

8/12/2004, at 2, 3.        On April 28, 2005, after Appellant’s court-appointed

counsel filed a Turner/Finley no-merit letter, the PCRA court issued a

Pa.R.Crim.P. 907 notice of its intent to dismiss Appellant’s petition, and

Appellant did not respond. The PCRA court dismissed his petition on May 31,

2005, and Appellant subsequently filed a timely notice of appeal.

       Following several snafus and years of delay, Attorney Schultz was

appointed to represent Appellant on appeal in February of 2018. On March

27, 2018, Attorney Schultz filed a petition for remand to the PCRA court in

order for Appellant to file an amended Pa.R.A.P. 1925(b) statement of errors

complained of on appeal, which we granted. On May 7, 2018, Attorney Schultz

filed a Rule 1925(c)(4) statement representing that an appeal would be

____________________________________________


       determining process that no reliable adjudication of guilt or
       innocence could have taken place.

       (ii) 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.

       (iii) A plea of guilty unlawfully induced where the circumstances
       make it likely that the inducement caused the petitioner to plead
       guilty and the petitioner is innocent.

42 Pa.C.S. § 9543(a)(2)(i)-(iii).


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“wholly frivolous[,]” but nevertheless set forth the following issues Appellant

intended to raise on appeal:
      The [PCRA c]ourt abused its discretion and erred when it
      dismissed Appellant’s August [12], 2004[ p]etition … without [a]
      hearing where:

         a. A violation of the Constitution of this Commonwealth or
         the Constitution or the laws of the United States 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.

         b. Ineffective assistance of counsel which, in the
         circumstances of the particular case, so undermined the
         truth-determining process proves that no reliable
         adjudication of guilt or innocence could have taken place.

            i. Counsel was ineffective for failing to suppress
            identification due to [a] suggestive photographic array
            procedure and failed to request a line up and lack of
            probable cause to arrest.

            ii. [The PCRA court] … should grant restoration of
            appellate rights to Appellant, … based on counsel[’s]
            failure to perfect his requested direct appeal rights
            following his conviction o[n] January 23, 2004.

            iii. [The PCRA court denied] a fundamental due process
            claim relating to Appellant’s appeal rights as directed by
            the Sixth Amendment “Violations”, [sic] caused by
            appointed counsel Donald Chisholm, Esq., who failed to
            follow the Order of the Superior Court … [t]o enter his
            appearance on behalf of Appellant … meeting the
            prejudice requirement of [42 Pa.C.S. §] 9543[(a)(2)](ii).

            iv. Appellant … intends to establish the 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.

            v. Appellant argues[] layered ineffectiveness of
            counsel(s), who failed to file requested appeal, affecting
            his appellate rights….

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     c. A plea of guilty unlawfully induced where the circumstances
     make it likely that the inducement caused Appellant to plead guilty
     and Appellant is innocent.

           i. Appellant … intends to bring forth … that his plea[] of
           guilty was unlawfully induced by counsel and/or
           prosecution during said negotiations where the
           circumstances made it likely that the inducement
           compelled Appellant to plead guilty. Appellant avers
           that[] this improper obstruction had affected his rights of
           appeal where meritorious appealable issues existed and
           had been preserved.

           ii. Appellant argues that trial counsel rendered ineffective
           assistance by failing to object to [the p]rosecution’s and
           [the] trial court[’s] participation in plea-bargaining
           process/negotations, as prosecution upon entrapment
           and trial counsel[] had Appellant by way of inducement
           plead to an agreement that was not offered initially,
           therefore compelling Appellant to an involuntary plea-
           agreement.

           iii. Appellant argues, that upon prosecutorial misconduct
           with concerns to plea negotiations, “prior to jury
           selections[,” the] prosecution … offered [a] plea-
           agreement of 10-20 years[’ incarceration to] Appellant
           while [he was] incarcerate[d.] [D]efense counsel …
           brought     forth   said    plea  o[f]  10-20     years[’]
           [imprisonment], “whereas [A]ppellant upon said
           agreement, agreed to [the] prosecutor[’s] offer.” Upon
           defense counsel[’s] presenting to [the] prosecution its
           acceptance of agreement, [the] prosecution had denied
           it[s] agreement. Prosecution upon entrapments prior to
           jury selections, wrongfully abused it[s] plea bargaining
           process to seek conviction; and further[] compelled
           Appellant, along with defense counsel who failed to
           object to said negotiations … into an involuntary plea-
           agreement that compelled him to accept 25-50 year[s’]
           imprisonment.

           iv. Appellant argues … that [the] sentencing [j]udge
           wrongfully participated in[] compelling Appellant to
           accept [the prosecution’s] offer, and further[] stated[,] if
           Appellant does[ not] accept[ the] offer, he would indeed
           receive a more severe sentenc[e].


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Rule 1925(c)(4) Statement, 5/7/2018, at 1-5 (unnumbered pages; internal

citations and footnotes omitted).

       On July 2, 2018, Attorney Schultz filed a petition to withdraw and a

Turner/Finley no-merit letter, styled as a brief, with this Court. We must

determine whether counsel has satisfied the prerequisites of withdrawal. In

Turner, our Supreme Court “set forth the appropriate procedures for the

withdrawal of court-appointed counsel in collateral attacks on criminal

convictions.”    Turner, 544 A.2d at 927.        The traditional requirements for

proper withdrawal of PCRA counsel, originally set forth in Finley, were

updated by this Court in Commonwealth v. Friend, 896 A.2d 607 (Pa.

Super. 2006), abrogated by Commonwealth v. Pitts, 981 A.2d 875 (Pa.

2009),3 which provides:
       1) As part of an application to withdraw as counsel, PCRA counsel
       must attach to the application a “no-merit” letter[;]

       2) PCRA counsel must, in the “no-merit” letter, list each claim the
       petitioner wishes to have reviewed, and detail the nature and
       extent of counsel’s review of the merits of each of those claims[;]

       3) PCRA counsel must set forth in the “no-merit” letter an
       explanation of why the petitioner’s issues are meritless[;]

       4) PCRA counsel must contemporaneously forward to the
       petitioner a copy of the application to withdraw, which must
       include (i) a copy of both the “no-merit” letter, and (ii) a
       statement advising the PCRA petitioner that, in the event the trial
____________________________________________


3 In Pitts, our Supreme Court abrogated Friend “[t]o the extent Friend
stands for the proposition that an appellate court may sua sponte review the
sufficiency of a no-merit letter when the defendant has not raised such issue.”
Pitts, 981 A.2d at 879. In this case, Attorney Schultz filed his petition to
withdraw and no-merit brief with this Court and, thus, our Supreme Court’s
holding in Pitts is inapplicable.

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      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;

      5) the court must conduct its own independent review of the
      record in [] light of the PCRA petition and the issues set forth
      therein, as well as of the contents of the petition of PCRA counsel
      to withdraw; and

      6) the court must agree with counsel that the petition is meritless.

Friend, 896 A.2d at 615 (footnote omitted).

      “Once counsel for the petitioner determines that the issues raised under

the PC[R]A are ‘meritless,’ and the PC[R]A court concurs, counsel will be

permitted to withdraw and the petitioner may proceed on his own or with the

aid of private counsel to pursue a review of the ruling entered, if he/she so

wishes.”   Finley, 550 A.2d at 215. The preceding sentence assumes that

counsel filed the no-merit letter/brief with the PCRA court. However, counsel

“may withdraw at any stage of collateral proceedings if he, in the exercise of

his professional judgment, determines that the issues raised in those

proceedings are meritless,” Commonwealth v. Bishop, 645 A.2d 274, 275

(Pa. Super. 1994), and “the initial court before whom the request to withdraw

is pleaded would logically be the tribunal making the ruling.”     Finley, 550

A.2d at 215 n.4. Attorney Schultz filed his petition to withdraw with our Court;

accordingly, we must determine whether he has complied with the

Turner/Finley requirements.

      Attorney Schultz submitted to Appellant a copy of his no-merit brief.

That brief sets forth each claim Appellant “wishes to have reviewed, and

detail[s] the nature and extent of counsel’s review of the merits of each of


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those claims[.]”      Friend, 896 A.2d at 615.4     The brief also provides an

explanation as to why each issue is without merit. Moreover, Attorney Schultz

advised Appellant of his right to retain new counsel, or to proceed pro se.5

Accordingly, we conclude that Attorney Schultz has complied with the

requirements necessary to withdraw as counsel.

        Next, this Court must conduct its own independent review of the record

in light of the issues presented in Appellant’s PCRA petition. “Our standard of

review of a PCRA court order granting or denying relief under the PCRA calls

upon us to determine ‘whether the determination of the PCRA court is

supported by       the   evidence     of record and is free   of legal error.’”

Commonwealth v. Pier, 182 A.3d 476, 478 (Pa. Super. 2018) (citations and

brackets omitted).

        At the outset, we note that Appellant has waived most of the issues set

forth in the Rule 1925(c)(4) statement because he did not raise them before


____________________________________________


4 Attorney Schultz organizes the argument section of his brief based on the
three main claims Appellant raises in his petition, i.e., that he is eligible for
relief because of a: (i) a violation of the Constitution of this Commonwealth
or the Constitution or laws of the United States 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; (ii)
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; and (iii) a plea of
guilty unlawfully induced where the circumstances make it likely that the
inducement caused the petitioner to plead guilty and the petitioner is innocent.
See PCRA Petition at 2; see also 42 Pa.C.S. § 9543(a)(2)(i)-(iii), supra.

5   We note that Appellant has not filed a response with this Court.

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the PCRA court. See Pa.R.A.P. 302(a) (“Issues not raised in the lower court

are waived and cannot be raised for the first time on appeal.”). We reiterate

that, although Appellant raised claims pursuant to Sections 9543(a)(2)(i), (ii),

and (iii), in his petition, he only bolstered those claims by averring that his

guilty plea was unlawfully induced by his counsel, and that his “[c]ounsel was

ineffective for failing to suppress identification due to [a] suggestive

photographic array procedure and failure to request a line up and lack of

probable cause to arrest.” PCRA Petition at 2, 3. We therefore limit our review

to the issues Appellant presented to the PCRA court that are preserved for our

review.

      We first address Appellant’s claim that he is eligible for relief because of

the ineffectiveness of his counsel. PCRA Petition at 2. We acknowledge:
      To prevail on a claim of ineffective assistance of counsel, a PCRA
      petitioner must prove each of the following: (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 deficient stewardship, there
      is a reasonable likelihood the outcome of the proceedings would
      have been different.

          Allegations of ineffectiveness in connection with the entry of
          a guilty plea will serve as a basis for relief only if the
          ineffectiveness caused the defendant to enter an involuntary
          or unknowing plea. Where the defendant enters his plea on
          the advice of counsel, the voluntariness of the plea depends
          on whether counsel’s advice was within the range of
          competence demanded of attorneys in criminal cases.

      Thus, to establish prejudice, the defendant must show that there
      is a reasonable probability that, but for counsel’s errors, he would
      not have pleaded guilty and would have insisted on going to trial.




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Pier, 182 A.3d at 478-79 (internal citations, quotation marks, and footnote

omitted).   Further, “[a] person who elects to plead guilty is bound by the

statements he makes in open court while under oath and he may not later

assert grounds for withdrawing the plea which contradict the statements he

made at his plea colloquy.” Id. at 480 (citation omitted).

      In the case sub judice, during the guilty plea colloquy, Appellant

demonstrated that he understood the nature of the charges to which he was

pleading guilty, see N.T., 1/23/2004, at 4, 14-23, 26-29; indicated that the

Commonwealth’s factual basis for the plea was correct, id. at 14-23;

confirmed that he understood that he had a right to a trial with or without a

jury, and would be presumed innocent until found guilty, id. at 5-13;

represented that he was informed of the permissible range of sentences

and/or fines for the offenses at issue, id. at 24-25; and expressed that he was

aware that the judge was not bound by the terms of the plea agreement unless

the judge decided to accept it, id. at 4. See generally Commonwealth v.

Pollard, 832 A.2d 517, 522-23 (Pa. Super. 2003) (setting forth the areas that

must be included in a colloquy) (citation omitted). Further, Appellant stated

that he was satisfied with the representation of his lawyer, and testified that

no undisclosed promises were made to him and nobody threatened him to

enter the pleas.   N.T. at 12-13, 25.    In light of the foregoing, we deem

meritless Appellant’s claim that counsel unlawfully induced him to plead guilty.

      We likewise deem meritless Appellant’s assertion that his “[c]ounsel was

ineffective for failing to suppress identification due to [a] suggestive

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photographic array procedure and failure to request a line up and lack of

probable cause to arrest.” PCRA Petition at 3. At the very least, Appellant

fails to establish that he was prejudiced due to these purported failures. At

the colloquy, the Commonwealth noted:
        On June … 10th of 2003, [detectives] met with [Appellant] at
        approximately 3:35 p.m. at Southwest Detective Division. At that
        point, they advised him of his Miranda[6] warnings and after being
        advised, he consented to give a statement. In summary, in the
        statement, [Appellant] admitted to committing approximately 10
        robberies during the last week in May. He said that he had used
        a fake gun, a B.B. gun in all robberies. He said that they occurred
        between 52nd and 54th Street between Haverford Avenue and
        Parrish Street [sic], all in West Philadelphia. He said that all of his
        victims were African-American women. He said that he had been
        staying at a friend[’s] house on Ogden Street at this time. He said
        that he had worn a black leather jacket and blue jeans for most of
        these robberies. When asked how he committed the robberies,
        he said that they were all basically the same. [He] just showed
        them [his] gun and asked for money. [He] did … two at bus stops.
        The statement was concluded at approximately 6:10 p.m.
        [Appellant] dated and signed all pages of the statement.

N.T. at 21-22. Appellant testified that these facts were substantially correct.

Id. at 23.     In light of the statement given by Appellant to detectives, we

determine that there is not a reasonable likelihood the outcome of the

proceedings would have been different if Appellant’s counsel had sought to

suppress identification evidence due to a suggestive photographic array

procedure, requested a line up, and argued that there was a lack of probable

cause to arrest Appellant. See Pier, 182 A.3d at 478; see also PCRA Petition

at 3.

____________________________________________


6   Miranda v. Arizona, 384 U.S. 436 (1966).

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      Lastly, with respect to ineffectiveness, Appellant challenges the

effectiveness of his previously appointed PCRA counsel who failed to enter his

appearance on appeal in accordance with this Court’s order directing him to

do so, thereby causing significant delays in this case. See Rule 1925(c)(4)

Statement at 2 (unnumbered pages).         Regardless of whether this issue is

waived, Appellant has not established prejudice, as we appointed new counsel

to litigate his appeal. Thus, this claim is also meritless.

      In his second claim, Appellant alleges that he is eligible for relief because

of “[a] plea of guilty unlawfully induced where the circumstances make it likely

that the inducement caused [him] to plead guilty and [he] is innocent.” PCRA

Petition at 2. In support, Appellant relies on the above-stated reasons: his

guilty plea was unlawfully induced by his counsel and his “counsel was

ineffective for failing to suppress identification due to [a] suggestive

photographic array procedure and failure to request a line up and lack of

probable cause to arrest.” Id. at 3. However, Appellant does not contend

that he is innocent of the offenses at issue. See Commonwealth v. Barndt,

74 A.3d 185, 191 n.9 (Pa. Super. 2013) (determining that the appellant

waived his argument under Section 9543(a)(2)(iii) that his guilty plea was

unlawfully induced where he did not maintain that he is innocent of the crimes

charged) (citation omitted). Thus, this claim lacks merit.

      In his third claim, Appellant alleges that he is eligible for relief because

of “[a] violation of the Constitution of this Commonwealth or the Constitution

or laws of the United States which, in the circumstances of the particular case,

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so undermined the truth-determining process that no reliable adjudication of

guilt or innocence could have taken place.” PCRA Petition at 2. Again, he

apparently proffers the same reasons in support of this claim. As we have

already ascertained that his counsel was not ineffective, this claim fails.

Therefore, after our review of the record and Appellant’s claims, we agree with

Attorney Schultz that Appellant’s PCRA petition is meritless.

      Order affirmed. Petition to withdraw granted.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/16/19




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