J-S58019-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

KEVIN MITCHELL, JR.,

                            Appellant                No. 724 MDA 2015


                 Appeal from the PCRA Order of March 30, 2015
               In the Court of Common Pleas of Lebanon County
              Criminal Division at No(s): CP-38-CR-0001268-2008


BEFORE: GANTMAN, P.J., OLSON AND PLATT,* JJ.

MEMORANDUM BY OLSON, J.:                        FILED DECEMBER 04, 2015

       Appellant, Kevin Mitchell, Jr., appeals from the order entered on March

30, 2015, dismissing his first petition pursuant to the Post Conviction Relief

Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546.           Counsel filed a petition to

withdraw from further representation and a brief pursuant to Anders v.

California, 386 U.S. 738 (1967).1 Upon review, we grant counsel’s petition

to withdraw and affirm the dismissal of Appellant’s PCRA petition.


____________________________________________


1
  Counsel filed a brief pursuant to Anders, apparently in the mistaken belief
that an Anders brief is required where counsel seeks to withdraw on appeal
from the denial of PCRA relief. A Turner/Finley no-merit letter, however, is
the appropriate filing. See Commonwealth v. Turner, 544 A.2d 927 (Pa.
1988); Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en
banc). However, because an Anders brief provides greater protection to a
defendant, this Court may accept an Anders brief in lieu of a Turner/Finley
letter. Commonwealth v. Widgins, 29 A.3d 816, 817 (Pa. Super. 2011).



* Retired Senior Judge assigned to the Superior Court.
J-S58019-15



      On direct appeal, we summarized the facts and history of this case as

follows:

           On May 24, 2009, officers from the Lebanon County Police
           Department conducted a search of Appellant’s apartment.
           Police recovered a nylon bag containing three grams of
           crack cocaine, a straw, and a razor blade from inside the
           refrigerator. In addition, in various other rooms, police
           found two digital scales and an envelope containing a large
           quantity of plastic baggies. Appellant admitted to police that
           he was unemployed and purchased the crack cocaine with
           the intent to sell it.

           The Commonwealth charged Appellant with various
           narcotics related offenses. The trial court scheduled a jury
           trial to begin on September 18, 2009. That day, Appellant
           made an oral motion to suppress his statements made to
           police. The trial court denied the request as untimely. The
           matter proceeded to trial and a jury found Appellant guilty
           of the aforementioned crimes. The trial court sentenced
           Appellant to an aggregate term of five to 10 years of
           imprisonment.

Commonwealth v. Mitchell, 40 A.3d 201 (Pa. Super. 2011) (unpublished

memorandum).        We affirmed Appellant’s judgment of sentence on appeal.

Id.   Our Supreme Court denied further review.              Commonwealth v.

Mitchell, 69 A.3d 601 (Pa. 2013).

      On June 6, 2014, Appellant filed a pro se PCRA petition, alleging five

claims of ineffective assistance of trial counsel. The PCRA court appointed

counsel to represent Appellant. The PCRA court held a hearing on March 20,




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2015. On March 30, 2015, the PCRA court filed an order and accompanying

opinion denying Appellant relief. This timely appeal resulted.2

       On appeal, Appellant’s counsel included the following issue in his brief:

         1. Does an examination of the record provide any basis for
            any arguments supporting reversal or modification of the
            order in question?

Appellant’s Brief at 2.

       Prior to reviewing the merits of this appeal, we first decide whether

counsel fulfilled the procedural requirements for withdrawing as counsel.

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

have explained:

         Counsel petitioning to withdraw from PCRA representation
         must proceed ... under Turner, supra and Finley, supra
         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.

                                *          *       *
____________________________________________


2
  Counsel for Appellant filed a notice of appeal on April 21, 2015. On the
same day, counsel also filed a statement of errors complained of on appeal
pursuant to Pa.R.A.P. 1925(c)(4), stating that he intended to file an Anders
brief. On April 30, 2015, the PCRA court filed an order relying upon its April
2, 2015 decision.



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        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.

Id.

      Here, counsel satisfied all of the above procedural requirements and

Appellant has not responded to counsel’s request to withdraw. Thus, having

concluded that counsel's petition to withdraw is Turner/Finley compliant,

we now undertake our own review of the case to consider whether the PCRA

court erred in dismissing Appellant's petition.

      In reviewing the denial of PCRA relief,

        we examine whether the PCRA court's determination is
        supported by the record and free of legal error. To be
        entitled to PCRA relief, an appellant must establish, by a
        preponderance of the evidence, that his conviction or
        sentence resulted from one or more of the enumerated
        errors in 42 Pa.C.S.A. § 9543(a)(2); his claims have not
        been previously litigated or waived, id. § 9543(a)(3); and
        the failure to litigate the issue prior to or during trial or on
        direct appeal could not have been the result of any rational,
        strategic, or tactical decision by counsel. Id. § 9543(a)(4).

Commonwealth v. Montalvo, 2015 WL 1888580, at *7 (Pa. 2015)

(quotations, ellipsis and some citations omitted).

      Counsel   for   Appellant   identifies   three   issues   for   our   review.

Specifically, Appellant alleges trial counsel was ineffective for failing to: (1)

meet with Appellant prior to trial, (2) provide Appellant with discovery




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materials, and (3) move to suppress certain statements Appellant made to

police. Appellant’s Brief at 5-6.

      Our Supreme Court stated:

        In order to obtain relief on a claim of ineffectiveness of
        counsel, a PCRA petitioner must satisfy the performance
        and prejudice test set forth in Strickland v. Washington,
        466 U.S. 668 (1984). In Pennsylvania, we have applied the
        Strickland test by requiring that a petitioner establish that
        (1) the underlying claim has arguable merit; (2) no
        reasonable basis existed for counsel's action or failure to
        act; and (3) the petitioner suffered prejudice as a result of
        counsel's error, with prejudice measured by whether there
        is a reasonable probability that the result of the proceeding
        would have been different. In other words, prejudice is
        assessed in terms of whether the petitioner has shown that
        the demonstrated ineffectiveness sufficiently undermines
        confidence in the verdict. Counsel is presumed to have
        rendered effective assistance, and, if a claim fails under any
        required element of the Strickland test, the court may
        dismiss the claim on that basis.

Montalvo, 2015 WL 1888580, at *8 (quotations and some citations

omitted).   Additionally, “[w]e are bound by the PCRA court's supported

credibility determinations.” Commonwealth v. Treiber, 121 A.3d 435, 451

n.11 (Pa. 2015).

      Here, the PCRA court determined that trial counsel adequately

consulted with Appellant prior to trial. PCRA Court Order, 4/2/2015, at 1-2

(unpaginated). Upon review of the record, trial counsel testified he met with

Appellant “nine, ten or more times” to discuss the case prior to trial. N.T.,

3/20/2015, at 17. The trial court found defense counsel credible. We will




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not usurp that determination. As such, there is no merit to Appellant’s claim

that trial counsel was ineffective for failing to meet with him before trial.

      Next,    the   PCRA     court    concluded     Appellant    received      the

Commonwealth’s discovery from trial counsel. PCRA Court Order, 4/2/2015,

at 2. Trial counsel testified that he provided all of the discovery material to

Appellant between one to two months prior to trial. N.T., 3/2/0/2015, at 19.

The PCRA credited defense counsel’s testimony and, again, we will not

disturb that finding. Thus, there is no merit to Appellant’s claim that trial

counsel was ineffective for failing to turn over discovery.

      Finally, the PCRA recognized that Appellant did not claim that his

statements to police following his arrest were made in violation of his rights

pursuant to Miranda v. Arizona, 384 U.S. 436 (1966). Instead, Appellant

claimed that he never made inculpatory statements to police. PCRA Court

Order, 4/2/2015, at 2-3.      Thus, the PCRA court determined “the factual

challenge of whether or not a statement existed [was] for the jury to

determine at trial [and] not the proper subject of a [s]uppression [m]otion.”

Id. We agree.

      “Counsel may not be deemed ineffective for failing to pursue a

baseless or frivolous issue.” Commonwealth v. Moore, 446 A.2d 960, 962

(Pa. Super. 1982).    “Absent some showing by appellant that an adequate

basis existed on which to obtain a pre-trial suppression of the evidence in

question, we will not find counsel ineffective.”           Commonwealth v.


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Thomas, 539 A.2d 829, 837 (Pa. Super. 1988). We previously determined

that trial counsel provides effective representation when he affirmatively

decides not to file a pretrial motion to suppress his client’s statements to

police where there were no alleged constitutional violations by police and the

defendant insisted that after police advised him of his rights, he made no

statement. See Commonwealth v. Durah-El, 496 A.2d 1222, 1225 (Pa.

Super. 1985).    Here, Appellant does not complain that police coerced his

statement or somehow violated his constitutional rights. N.T., 3/2/0/2015,

at 27.   Instead, Appellant testified that he never made the statements at

issue. Id. Counsel cannot be deemed ineffective for failing to file a motion

to suppress when there was no basis for suppression.       Hence, Appellant’s

third contention lacks merit.

      On the foregoing basis, and because our independent assessment of

the record yields no non-frivolous issues which merit our review, we grant

counsel leave to withdraw and we affirm the order denying PCRA relief.

      Leave to withdraw granted. Order affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/4/2015



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