J-S18038-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    WILLIAM CHARLES WUNNER                     :
                                               :
                       Appellant               :   No. 1527 MDA 2019

              Appeal from the PCRA Order Entered August 21, 2019
      In the Court of Common Pleas of Luzerne County Criminal Division at
                        No(s): CP-40-CR-0003445-2014


BEFORE:      KUNSELMAN, J., KING, J., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.:                            FILED MAY 12, 2020

        Appellant, William Charles Wunner, appeals from the order entered by

the Court of Common Pleas of Luzerne County (“PCRA Court”), which denied

his request for collateral relief under the Post Conviction Relief Act (“PCRA”),

42 Pa.C.S.A. §§ 9541-46. PCRA counsel has filed a no-merit letter and petition

to withdraw under Turner/Finley.1 Upon review, we remand to the PCRA

court so that it may provide this panel with the benefit of a Pa.R.A.P. 1925(a)

opinion addressing Appellant’s preserved pro se issue maintaining trial counsel

rendered ineffective assistance of counsel by failing to object when the

Commonwealth’s medical expert opined he believed the victim was sexually

____________________________________________


*   Former Justice specially assigned to the Superior Court.

1Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth
v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
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assaulted even though the medical examination was not consistent with her

narrative.

      On December 9, 2014, the Commonwealth charged Appellant with rape

of a child, involuntary deviate sexual intercourse, two counts of aggravated

indecent assault, endangering the welfare of a child, corruption of minors,

indecent assault, and indecent exposure.        On January 20, 2016, a jury

convicted Appellant on all charges. On April 15, 2016, Appellant was

sentenced to an aggregate term of 24 to 48 years' imprisonment. This Court

affirmed judgment of sentence in a memorandum decision, Commonwealth

v. Wunner, No. 817 MDA 2016, 2017 WL 3379199 (Pa. Super. Ct. Aug. 7,

2017), and the Pennsylvania Supreme Court denied Appellant’s petition for

allowance of appeal. Commonwealth v. Wunner, 179 A.3d 439 (Pa. 2018).

      On December 10, 2018, Appellant filed pro se his first petition for relief

under the PCRA. The PCRA court appointed counsel and presided over a PCRA

evidentiary hearing, at which Appellant was the sole witness.            At the

conclusion of the hearing, the court denied Appellant relief. This timely appeal

followed.

      Appellant’s PCRA counsel filed in this Court an application to withdraw

as counsel and a no-merit letter, wherein counsel presented for our review

the following issues raised below in Appellant’s PCRA petition:

      1. [Was] trial counsel ineffective in failing to utilize the expert
         retained for trial?

      2. [Was] trial counsel ineffective with regard to his questioning in
         preparation for trial?

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      3. [Did] the trial counsel commit[] errors of law [by] failing to
         object to evidentiary rulings and by failing to move for mistrial?

Turner/Finley brief, at 1.

      In response to counsel’s Turner/Finley brief, Appellant has submitted

a pro se brief raising the following issues:

      1. [Did] the actions of the PCRA court coupled with PCRA counsel’s
         unwillingness to advocate for Appellant during the PCRA
         proceedings amount[] to a denial of counsel at a critical stage?

      2. [Did] the PCRA court err[] and violate[] Appellant’s due process
         rights when it failed to grant Appellant an extension of time so
         he could file objections to counsel’s motion to withdraw and
         amend his petition?


      3. In considering Appellant’s objections to the so-called Anders
         brief, does this Court have authority to consider the claim
         raised in Appellant’s timely objections as such claim regarding
         counsel’s ineffectiveness for failure to object to the testimony
         of Doctor Gary Lawrence when he opined that A.W. was
         sexually abused when such opinion was predicated on the
         witness accounts and not physical findings which was an error,
         as such claim disputes the Anders brief?

Appellant’s pro se brief, at 4 (unpaginated).

      Before we may consider these issues, we must address whether PCRA

counsel has met the requirements of Turner/Finley. For PCRA counsel to

withdraw under Turner/Finley in this Court:

      (1) PCRA counsel must file a no-merit letter that details the
      nature and extent of counsel’s review of the record; lists the
      appellate issues; and explains why those issues are meritless.

      (2) PCRA counsel must file an application to withdraw; serve the
      PCRA petitioner with the application and the no-merit letter; and



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      advise the petitioner that if the Court grants the motion to
      withdraw, the petitioner can proceed pro se or hire his own lawyer.


      (3) This Court must independently review the record and agree
      that the appeal is meritless.

See Commonwealth v. Widgins, 29 A.3d 816, 817-18 (Pa. Super. 2011)

(citing or quoting Turner, Finley, Commonwealth v. Pitts, 981 A.2d 875

(Pa. 2009), and Commonwealth v. Friend, 896 A.2d 607 (Pa. Super. 2008),

overruled in part by, Pitts).

      We find that PCRA counsel has complied with Turner/Finley. PCRA

counsel has filed both an application to withdraw and a Turner/Finley no-

merit letter. Finally, PCRA counsel informed Appellant of his right to hire a

new lawyer or file a pro se response.

      We now address whether this appeal is indeed meritless. “On appeal

from the denial of PCRA relief, our standard of review requires us to determine

whether the ruling of the PCRA court is supported by the record and free of

legal error.” Widgins, 29 A.3d at 819. As this Court has explained:

      We review an order dismissing a petition under the PCRA in the
      light most favorable to the prevailing party at the PCRA level. This
      review is limited to the findings of the PCRA court and the evidence
      of record. We will not disturb a PCRA court’s ruling if it is
      supported by evidence of record and is free of legal error. This
      Court may affirm a PCRA court’s decision on any grounds if the
      record supports it. Further, we grant great deference to the
      factual findings of the PCRA court and will not disturb those
      findings unless they have no support in the record. However, we
      afford no such deference to its legal conclusions. Where the
      petitioner raises questions of law, our standard of review is de
      novo and our scope of review plenary.




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Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa. Super. 2012) (citations

omitted).

       A PCRA petitioner is entitled to relief if he pleads and proves that prior

counsel     rendered    ineffective    assistance   of   counsel.   42   Pa.C.S.A.   §

9543(a)(2)(ii). “It is well-established that 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.”

Commonwealth v. Koehler, 36 A.3d 121, 132 (Pa. 2012) (citation omitted).

“To prevail on an [ineffectiveness] claim, a PCRA petitioner must plead and

prove by a preponderance of the evidence that (1) the underlying legal claim

has arguable merit; (2) counsel had no reasonable basis for acting or failing

to act; and (3) the petitioner suffered resulting prejudice.” Commonwealth

v. Reyes-Rodriguez, 111 A.3d 775, 780 (Pa. Super. 2015) (en banc). “A

petitioner must prove all three factors of the “Pierce2 test,” or the claim fails.”

Id. In other words, “[t]he burden of proving ineffectiveness rests with

Appellant.” Commonwealth v. Chmiel, 889 A.2d 501, 540 (Pa. 2005).

       The first issue in the Turner/Finley brief asserts Appellant’s position

raised below that trial counsel rendered ineffective assistance by failing to use

an expert retained for trial. At the evidentiary hearing, however, Appellant

could identify neither the expert nor the substance of the expert’s opinion.



____________________________________________


2   Commonwealth v. Pierce, 527 A.2d 973 (Pa. 1987).


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      “Where a defendant claims that counsel was ineffective for failing to call

a particular witness, we require proof of that witness's availability to testify,

as well as an adequate assertion that the substance of the purported

testimony would make a difference in the case.” Commonwealth v. Clark,

961 A.2d 80, 90 (Pa. 2008).       The most Appellant could maintain at the

evidentiary hearing was his belief there was a “50/50” likelihood that the

expert’s opinion would have helped him. N.T., 8/21/19, at 5-6. Thus given

no meaningful discussion of the expert’s opinion or what difference it could

have made at Appellant’s trial, the PCRA court committed no error in

concluding Appellant failed to meet his burden of proving trial counsel’s

ineffectiveness on this claim.

      Appellant’s second issue raised in the Turner/Finley brief posits that

trial counsel was unprepared for trial. In an effort to advance this claim at his

evidentiary hearing, Appellant testified that he had only brief conversations

with trial counsel over the phone prior to trial. N.T. at 9. This unsubstantiated

testimony, however, did not show there existed “a reasonable probability that,

but for counsel's unprofessional errors, the result at trial would have been

different.” Commonwealth v. King, 57 A.3d 607, 613 (Pa. 2012) (quoting

Strickland, 466 U.S. at 694)). “A reasonable probability is a probability that

is sufficient to undermine confidence in the outcome of the proceeding.” Id.

Without having included in his testimony any discussion of the alleged

weaknesses in the Commonwealth’s case and of how trial counsel’s failure to

tailor an appropriate defense in response deprived him of a reasonable

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probability of a better outcome, Appellant cannot now prevail on his second

PCRA claim.

         Finally, the Turner/Finley brief raises the third issue previously raised

in Appellant’s petition, namely, that trial counsel was ineffective when he

failed to object to certain evidentiary rulings and move for mistrial or, in the

alternative, request curative instructions.         Again, because nothing in

Appellant’s testimony at the PCRA evidentiary hearing supported this claim, it

fails.

         Turning to Appellant’s pro se brief filed in response to counsel’s service

of the Turner/Finley application and no-merit letter, we consider his first

assertion that a “conflict of interest” automatically arose between PCRA

counsel and him when counsel petitioned for withdrawal under Turner and

the court denied counsel’s request.3 At that time, Appellant contends, the

PCRA court was required to grant Appellant’s pro se motion for a continuance

because of the inherent conflict. See N.T. at 2-3. We disagree.

         When a court denies an appellate attorney’s petition to withdraw under

Turner, the ordinary course is not to presume the existence of an inherent

conflict of interest and remand for appointment of new counsel. Rather, it is

to direct counsel to file either a compliant Turner/Finley brief to correct

deficiencies or, if the court discerns meritorious issues to present on appeal,
____________________________________________


3Specifically, Appellant writes, “the process afforded to [Appellant] during the
PCRA proceedings was “presumptively unreliable” because once the Court
denied counsel’s motion to withdraw, a conflict of interest was created.”
Appellant’s pro se brief, at 6 (unpaginated).

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to advocate on the client’s behalf. See, e.g., Commonwealth v. Flowers,

113 A.3d 1246 (Pa.Super. 2015) (denying appointed counsel’s petition to

withdraw under Anders, and remanding for counsel to acquire complete

record before settling on Anders brief or advocate’s brief). See also

Commonwealth v. Colon, No. 422 MDA 2017, 2017 WL 6014426, at *1 (Pa.

Super. Dec. 5, 2017) (denying PCRA counsel's petition to withdraw and

remanding for PCRA counsel to review full record before filing an advocate's

brief or another Turner/Finley “no-merit” letter); Commonwealth v.

McCarty, 117 MDA 2015, 2015 WL 7253818 (Pa.Super. Nov. 17, 2015)

(denying counsel’s request to withdraw and directing counsel to prepare an

advocate’s brief, as it disagreed with counsel’s position that no meritorious

issues existed).

      As such, Appellant’s “inherent conflict” argument is not consonant with

the jurisprudence of our courts, which presumes that appointed counsel is

effective and remains capable of representing the appellant’s legal interests

even after having sought unsuccessfully to withdraw from representation. As

Appellant directs us to no authority recognizing a pertinent exception to this

precept, we reject his argument on this point.

      Appellant’s remaining argument, however, that trial counsel rendered

ineffective assistance by failing to object when the Commonwealth’s medical

expert testified he believed the victim was sexually abused even though the

physical examination was not consistent with the victim’s allegations, bears




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further inquiry. In this respect, Appellant relies on the Pennsylvania Supreme

Court decision in Commonwealth v. Maconeghy, 171 A.3d 707 (Pa. 2017).

      In Maconeghy, the Commonwealth presented a pediatrician as an

expert witness, who opined that a child had suffered sexual abuse. Although

the pediatrician's physical examination of the child showed no evidence of

abuse, he based his opinion on his observation of a forensic interview of the

child and his review of other historical information. Id. at 708. Our Supreme

Court held that “an expert witness may not express an opinion that a particular

complainant was a victim of sexual assault based upon witness accounts

couched as a history, at least in the absence of physical evidence of

abuse.” Id. at 712. (emphasis added). The Court found that “such testimony

intrudes into the province of the jury relative to determining credibility.” Id.

      We   note   that   the   record   establishes   Appellant   preserved   the

Maconeghy issue for review by raising it first with the PCRA court in his

written response to PCRA counsel’s motion to withdraw pursuant to

Turner/Finley. Yet, we are without the benefit of the PCRA court’s opinion

on this issue, which would aid meaningful appellate review given the PCRA

court’s unique role in having presided over both Appellant’s criminal trial and

his PCRA evidentiary hearing.

      Accordingly, we remand this matter for the PCRA court’s preparation of

a Pa.R.A.P. 1925(a) opinion addressing the merits of Appellant’s claim that he

is entitled to a new trial pursuant to Maconeghy. The PCRA court shall file




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said opinion within 60 days of receiving this Court’s order and the certified

record.

      Panel jurisdiction is retained. The Prothonotary of this Court is directed

to return the record to the Court of Common Pleas of Luzerne County.




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