J-S05025-20


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    DOUGLAS LEE MINER                          :
                                               :
                       Appellant               :   No. 559 MDA 2019


              Appeal from the PCRA Order Entered June 22, 2018,
                 in the Court of Common Pleas of York County,
             Criminal Division at No(s): CP-67-CR-0007251-2009.


    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    DOUGLAS LEE MINER                          :
                                               :
                       Appellant               :   No. 560 MDA 2019


              Appeal from the PCRA Order Entered June 22, 2018,
                 in the Court of Common Pleas of York County,
             Criminal Division at No(s): CP-67-CR-0003215-2010.


BEFORE: SHOGAN, J., KUNSELMAN, J., and MUSMANNO, J.

MEMORANDUM BY KUNSELMAN, J.:                           FILED AUGUST 24, 2020

        Douglas Lee Miner appeals from the order denying his petition for relief

filed pursuant to the Post Conviction Relief Act (“PCRA”).1 Additionally, Miner’s

court-appointed PCRA counsel has filed a motion to withdraw from
____________________________________________


1   See 42 Pa.C.S.A. §§ 9541-9546.
J-S05025-20



representation, as well as a “no-merit” brief pursuant to Commonwealth v.

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

213 (Pa. Super. 1988) (en banc) (“Turner/Finley Brief”).2             We grant

counsel’s motion and affirm the PCRA court’s order in part.

       This appeal involves multiple convictions at two different dockets. The

trial court summarized the facts pertinent to each docket as follows:

          The general facts of the case, according to testimony taken
          at trial, are as follows. John Brensinger, the victim in [Case
          No.] 7251-2009, was living in the same apartment building
          as [Miner] in September 2009. Mr. Brensinger made plans
          to go to his parents’ home for the evening; [Miner] was the
          only person whom Mr. Brensinger told he would be out of
          town for the evening. David Brensinger, John’s father,
          arrived to pick John up and also casually mentioned to
          [Miner] that John would be back the next day. When John
          returned to his apartment the next day, he realized several
          things were missing, including a leather jacket and a small
          amplifier that he had borrowed from a friend. He estimated
          the total value of the items stolen to be between $500 and
          $1,000. The amp was recovered from a music store and
          ultimately traced to [Patty] Lane, the victim in [Case No.]
          3215-2010. The other items were recovered from Patty’s
          residence and identified by John as the items taken from his
          apartment.

____________________________________________


2 PCRA counsel submitted his Turner/Finley letter as a brief similar to the
requirements of Anders v. California, 386 U.S. 738 (1967). Compliance
with Anders applies to counsel who seeks to withdraw from representation
on direct appeal. Anders imposes stricter requirements than those imposed
when counsel seeks to withdraw during the post-conviction process pursuant
to the dictates of Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc). See
Commonwealth v. Fusselman, 866 A.2d 1109, 1111 n.3 (Pa. Super. 2004).
Thus, we will assess counsel’s assertion that the issues Appellant wished to
raise have no merit under a Turner/Finley analysis.


                                           -2-
J-S05025-20


             Patty Lane met [Miner] in the beginning of September
         2009 and met up with him about a week later for drinks.
         [Miner] called her several times afterwards and when she
         finally, albeit reluctantly, spoke to him, [Miner] asked her to
         store some of his things at her house; she agreed to do so
         for a week or two. When [Miner] arrived, he brought his
         stuff and asked to use the bathroom; Patty felt
         uncomfortable and called her neighbor, Carrie Overton, to
         tell her [Miner] was there.         [Miner] came out of the
         bathroom and proceeded to drink a beer while talking to
         Patty; he then went back in the bathroom. When he exited
         the bathroom a second time, he told Patty to take her
         clothes off. Patty eventually took off her shirt and bra,
         trying to “sweet talk” [Miner] into stopping.          [Miner]
         continued, however, by pushing Patty on the couch,
         climbing on top of her, and pulling off her pants and
         underwear. [Miner] then proceeded to hold Patty down by
         her throat and forcibly have both vaginal and oral sex with
         her, which she described as painful. At one point her
         neighbors knocked on the door but [Miner] covered her
         mouth and told her to shut up or he would kill her.
         Eventually Patty got her hands around [Miner’s] neck and
         managed to push him off of her; she ran next door for help,
         still naked. Kevin Gephart, Patty’s neighbor and Carrie
         Overton’s boyfriend, went over to her house and directed
         [Miner] to get out.

            Susan McDonald, a Forensic Nurse Examiner at York
         Hospital conducted an examination of Patty after the
         incident and took vaginal and neck swab samples for DNA
         testing. Some saliva was detected in the neck swab and
         some sperm was detected in the vaginal sample. While a
         partial Y DNA profile obtained from the vaginal swab
         excluded [Miner] as a contributor, the neck swab did
         indicate the presence of DNA from both Patty and [Miner].
         Ms. McDonald also testified regarding [Patty’s] visible
         injuries.

Commonwealth v. Miner, 64 A.3d 273 (Pa. Super. 2013), unpublished

memorandum at 1 (citing Trial Court Opinion, 5/18/12, at unnumbered 3-4

(citations omitted)).



                                      -3-
J-S05025-20



       Based on this evidence, at Case No. 7251-2009, the jury found Miner

guilty of burglary, theft by unlawful taking, and receiving stolen property.3 At

Case No. 3125-2010, the jury convicted Miner of two counts of rape, and

multiple, related charges. On November 28, 2011, the trial court sentenced

Miner at both dockets to an aggregate term of eight to sixteen years of

imprisonment. Following the denial of a post-sentence motion, Miner filed a

timely appeal to this Court. In an unpublished memorandum filed on January

10, 2013, we rejected Miner’s claims and affirmed his judgment of sentence.

Miner, supra.

       Miner filed a pro se PCRA petition on May 2, 2013. The PCRA court

appointed counsel, and PCRA counsel filed an amended petition on April 13,

2017. The PCRA court held an evidentiary hearing on April 24, 2017, and the

court denied Miner’s PCRA petition by order entered June 19, 2018.4 Although

Miner sought appellate review of this decision, his then-appellate attorney
____________________________________________


3 On November 9, 2010, the trial court granted Miner’s request for a mistrial
in the Commonwealth’s first attempt to prosecute him at this docket.

4 The PCRA court explained the over five-year delay in disposing of Miner’s
PCRA petition as follows: “We would note that [Miner] is a prolific filer of
voluminous materials and supplemental PCRA petitions, which necessarily
take longer to review. We do not question [Miner’s] zeal and desire to
overturn what he views as an injustice; rather, we note that his case
progressed as quickly as his filing and our own docket would allow. Moreover,
owing to changes in counsel [Miner’s] petition was, regrettably, further
delayed.” PCRA Court Opinion, 8/16/19, at 2 n.1. Our review of the record
supports this statement. Indeed, the number of issues addressed by PCRA
counsel in his Turner/Finley Brief is indicative of Miner’s pro se filings.




                                           -4-
J-S05025-20



failed to prosecute the appeal. On August 30, 2018, however, the PCRA court

reinstated Miner’s appeal rights nunc pro tunc, and appointed counsel.

Although Miner continued to contact counsel and the court regarding his desire

to do so, a direct appeal was not pursued. On March 15, 2019, the PCRA court

appointed current counsel (“PCRA counsel”), and once again reinstated Miner’s

PCRA appellate rights nunc pro tunc. This timely appeal followed.5

       As noted above, PCRA counsel determined that the issues Miner wished

to raise on appeal lacked merit, and accordingly filed a petition to withdraw

from representation and the Turner/Finley Brief.

       In the Turner/Finley Brief, PCRA counsel raises thirteen issues upon

which Miner sought post-conviction relief. These issues involve the alleged

ineffectiveness of trial counsel, the alleged ineffectiveness of appellate

counsel, and two claims of prosecutorial misconduct. Prior to addressing any

of these claims, however, we must address current counsel’s petition to

withdraw.

       In order to withdraw under Turner/Finley in this Court:

____________________________________________


5  Although Miner included both trial court docket numbers on his separate
notices of appeal, this fact no longer requires quashal. See Commonwealth
v. Johnson, ___ A.3d ___, ___ (Pa. Super. 2020)(en banc) (filed July 9,
2020), Slip Opinion at 12 (partially overruling Commonwealth v. Creese,
216 A.3d 1142 (Pa. Super. 2019), to the extent that Creese interpreted
Commonwealth v. Walker, 185 A.3d 969 (Pa. 2018), as requiring Superior
Court to quash appeals when appellant filed multiple notices of appeal and
each notice lists all of the appealed from docket numbers). See also
Commonwealth v. Larkin, ___ A.3d ___, ___ (Pa. Super. 2020) (en banc)
(filed July 9, 2020), Slip Opinion at 3 (accord).


                                           -5-
J-S05025-20


            (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
                  the 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 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 Commonwealth v. Pitts, 981 A.2d 875, 876 n.1 (Pa. 2009); Turner,

544 A.2d at 928; Finley, 550 A.2d at 215.

          Here, in the Turner/Finley Brief and accompanying letter to Miner,

PCRA counsel described the extent of his review, identified the issues that

Miner sought to raise, and explained why the issues lacked merit. In addition,

PCRA counsel provided Miner with a notice of his intention to seek permission

to withdraw from representation, a copy of the Turner/Finley Brief, and

advised Miner of his rights in lieu of representation. Thus, we conclude that

PCRA counsel has substantially complied with the requirements necessary to

withdraw as counsel. See Commonwealth v. Karanicolas, 836 A.2d 940,

947 (Pa. Super. 2003) (holding that substantial compliance with requirements

to withdraw as counsel will satisfy the Turner/Finley criteria).           We now

independently review Miner’s claims to ascertain whether they entitle him to

relief.




                                       -6-
J-S05025-20



      In reviewing the denial of a PCRA Petition, we examine whether the

PCRA court’s determination “is supported by the record and free of legal

error.” Commonwealth v. Rainey, 928 A.2d 215, 223 (Pa. 2007) (citations

omitted).

      Additionally, when a petitioner alleges counsel’s ineffectiveness in a

PCRA petition, he must prove by a preponderance of the evidence that his

conviction or sentence resulted from 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.”    42 Pa.C.S.A. § 9543(a)(2)(ii).      The petitioner must

demonstrate:

         (1) that the underlying claim has arguable merit; (2) that
         no reasonable basis existed for counsel’s actions or failure
         to act; and (3) that the petitioner suffered prejudice as a
         result of counsel’s error. To prove that counsel's chosen
         strategy lacked a reasonable basis, a petitioner must prove
         that an alternative not chosen offered a potential for success
         substantially greater than the course actually pursued.
         Regarding the prejudice prong, a petitioner must
         demonstrate that there is a reasonable probability that the
         outcome of the proceedings would have been different but
         for counsel’s action or inaction. Counsel is presumed to be
         effective; accordingly, to succeed on a claim of
         ineffectiveness[,] the petitioner must advance sufficient
         evidence to overcome this presumption.

Commonwealth v. Johnson, 139 A.3d 1257, 1272 (Pa. 2016) (internal

citations and quotation marks omitted). A failure to satisfy any prong of the

test for ineffectiveness will require rejection of the claim. Commonwealth

v. Martin, 5 A.3d 177, 183 (Pa. 2010).

                                     -7-
J-S05025-20



        Miner’s first five issues involve the alleged ineffectiveness of trial

counsel. We address each issue separately.

        In his first issue, Miner argues that trial counsel was ineffective for

failing to object to the consolidation of his two cases for trial. This issue lacks

merit, as our review of the record refutes it.

        The parties had a pre-trial conference before the Honorable John H.

Chronister on September 15, 2010, approximately one week after the court

had granted Miner’s motion for mistrial in Case No. 7251-2009.             At this

conference, the Commonwealth moved to consolidate the cases, and Miner’s

trial counsel stated Miner was not objecting to consolidation. N.T., 9/15/10,

at 2.    Upon the court’s inquiry, Miner assured Judge Chronister that he

discussed the advantages and disadvantages of consolidating the cases with

trial counsel, and Judge Chronister discussed these factors with Miner as well.

See id. at 3-4. When Judge Chronister asked Miner if he was “willing to take

that risk,” Miner responded, “Yes.” Id. at 5.

        By the time of a pre-trial conference held on November 16, 2010,

Miner’s cases had been reassigned to the Honorable Michael E. Bortner. At

that time, trial counsel informed Judge Bortner:

             Although originally agreeing to [consolidation], [Miner]
          has changed his mind and would like those cases to be tried
          separately.

             At this time, Your Honor, I would put on the record that
          I have advised him I think it’s better for them to be tried
          together. He disagrees with me, and he wishes to exercise
          his rights to have separate trials on those two cases, Your
          Honor.

                                       -8-
J-S05025-20



N.T., 11/16/10, at 2-3. The Commonwealth then informed Judge Bortner of

when the issue of consolidation was first raised and that “it was felt by Judge

Chronister that the cases were so connected that they should be tried

together.” Id. at 3. Judge Bortner then denied trial counsel’s request, and

noted that “Judge Chronister’s order would stand that the cases be tried

together.” Id.

      Given the above, it is clear that trial counsel unsuccessfully sought to

sever Miner’s two cases.        Thus, Miner’s first claim of trial counsel’s

ineffectiveness fails.

      In his second issue, Miner claims that trial counsel was ineffective for

failing to object to his retrial at Case No. 7251 based on double jeopardy

principles. We cannot agree.

      Because an appeal grounded in double jeopardy raises a question of

constitutional law, this Court’s scope of review is plenary and our standard of

review is de novo.       Commonwealth v. Vargas, 947 A.2d 777, 780 (Pa.

Super. 2008).     If the factual findings of the trial court impact its double

jeopardy ruling, we apply a deferential standard of review:

             Where issues of credibility and weight of the evidence are
         concerned, it is not the function of the appellate court to
         substitute its judgment based on a cold record for that of
         the trial court. The weight to be accorded conflicting
         evidence is exclusively for the fact finder, whose findings
         will not be disturbed on appeal if they are supported by the
         record.




                                     -9-
J-S05025-20



Commonwealth v. Wood, 803 A.2d 217, 220 (Pa. Super. 2002) (citation

omitted).

              This Court has summarized the protections afforded by both

Double Jeopardy Clauses6 as follows:

           It is now well-settled that when a defendant requests a
           mistrial, the federal Double Jeopardy Clause bars retrial only
           when “the conduct giving rise to the successful motion for a
           mistrial was intended to provoke the defendant into moving
           for a mistrial.” [Oregon v. Kennedy, 456 U.S. 667, 679
           (1982).      The additional protections provided under
           Pennsylvania’s Double Jeopardy Clause do not extend to
           non-intentional prosecutorial misconduct, but rather only
           bar retrial following a defendant’s successful motion for a
           mistrial “when the conduct of the prosecutor [giving rise to
           the mistrial] is intentionally undertaken to prejudice the
           defendant to the point of the denial of a fair trial.”
           [Commonwealth v. Smith, 615 A.2d 321, 325 (Pa.
           2002)].

Commonwealth v. Kearns, 70 A.3d 881, 886 (Pa. Super. 2013).

        Here, the PCRA court concluded that Miner’s claim of ineffectiveness

failed. The court found that trial counsel “warned [Miner] that there was no

basis to a double jeopardy claim” and found that “there was a lack of proof of

prosecutorial misconduct[.] PCRA Court Opinion, 6/19/18, at 8-9.7 We agree.



____________________________________________


6   See U.S.C.A. Const. Amendment. 5; Pa. Const. Art. I, Section 10.

7  In addressing each of Miner’s ineffectiveness claims, the PCRA court
discussed all three prongs of the ineffectiveness test. The court did not have
to since the failure to prove any one prong results in the denial of relief.
Martin, supra.


                                          - 10 -
J-S05025-20


      Our review of the record reveals that, during her direct examination by

the Commonwealth during Miner’s first trial at Case No. 7251-2009, Ms. Lane

unexpectedly referred to the police coming to her house for a reason different

from their search for items taken from Mr. Brensinger’s apartment. See N.T.,

9/9/10, at 66-69.    It is clear from reading the transcript, that Ms. Lane’s

reference to the other case pending against Miner was inadvertent, and in no

way elicited by the Commonwealth. Miner’s second ineffectiveness claim fails

because counsel cannot be deemed ineffective for failing to pursue a meritless

claim. Commonwealth v. Loner, 836 A.2d 125, 132 (Pa. Super. 2003) (en

banc).

      In the third issue, Miner asserts that the PCRA court erred in rejecting

his claim that trial counsel was ineffective for failing to consult with an expert

regarding the rape kit taken from Ms. Lane.

      This Court has reiterated a PCRA petitioner’s burden when raising this

claim:

             When raising a claim of ineffectiveness for failure to call
         a potential witness, a petitioner satisfies the performance
         and prejudice requirements of the [Strickland v.
         Washington, 466 U.S. 668 (1984)] test by establishing
         that: (1) the witness existed; 2) the witness was available
         to testify for the defense; (3) counsel know of, or should
         have known of, the existence of the witness; (4) the witness
         was willing to testify for the defense; and (5) the absence
         of the testimony of the witness was so prejudicial as to have
         denied the defendant a fair trial[.]

Commonwealth v. Matias, 63 A.3d 807, 810-11 (quoting Commonwealth

v. Sneed, 45 A.3d 1096, 1108-09 (Pa. 2012).


                                      - 11 -
J-S05025-20


         These same standards apply when considering whether counsel was

ineffective for failing to call an expert witness. Commonwealth v. Chmiel,

30 A.2d 1111, 1143 (Pa. 2011). “To demonstrate Strickland prejudice, a

petitioner must show how the uncalled witnesses’ testimony would have been

beneficial under the circumstances of the case.” Commonwealth v. Matias,

63 A.3d 807, 811 (Pa. Super. 2013) (citation omitted). Finally, “[a] failure to

call a witness is not per se ineffective assistance of counsel for such decision

usually involves matters of trial strategy.” Id.

         Initially, we note that Miner’s claim fails because he did not identify a

potential expert with whom he had consulted regarding the rape kit. A PCRA

petitioner claiming he received the ineffective assistance of counsel must

allege     sufficient   facts   from   which   a   court   can   determine   counsel’s

effectiveness.     Pa.R.Crim.P. 902(A)(12); see Commonwealth v. Pettus,

424 A.2d 1332 (Pa. 1981) (stating that a defendant may not argue

ineffectiveness in vacuum). Thus, because Appellant has not established the

Strickland criteria regarding lack of an expert witness, his claim has no

arguable merit, and it must fail. Johnson, supra.

         Additionally, the PCRA court found no merit to Miner’s claim because

trial counsel, “changed his theory of the case, upon [Miner’s] request, to argue

that there was consensual sexual intercourse.” PCRA Court Opinion, 6/19/19,

at 9. The record supports this statement, and, given the change in strategy,

the results of the rape kit became irrelevant. Finally, the PCRA court accepted


                                         - 12 -
J-S05025-20


as credible trial counsel’s testimony that counsel “was afraid if he consulted

an expert it [might] give support to the Commonwealth’s evidence and case.”

Id. This statement is supported by our review of the PCRA hearing, as trial

counsel testified that he saw no need to hire an expert because the results fit

into his defense, which he highlighted upon cross-examination of the

Commonwealth’s expert. See N.T., 4/24/17, at 82. Thus, for these reasons,

Miner’s third claim of trial counsel’s ineffectiveness fails.

       In his fourth issue, Miner challenges that trial counsel was ineffective

for failing to impeach Ms. Lane with her prior inconsistent statements. This

claim is refuted by the record. Our review of the record supports the PCRA

court’s conclusion that trial counsel “did strenuously cross-examine [Ms.

Lane].” PCRA Court Opinion, 6/19/19 at 10. Regarding Miner’s PCRA hearing

testimony about certain inconsistencies in Ms. Lane’s testimony between the

first and second trials at Case No. 7251-2009, the PCRA court explained:

“[Miner] argues that timing and names of what [Ms. Lane] testified to was

crucial to be brought out [at] trial. [Trial counsel] did not need to touch on

specifically every single inconsistency in order to make a point.” Id.8   Finally,

the PCRA court noted that Miner testified at the PCRA hearing that trial counsel



____________________________________________


8 We note that trial counsel did cross-examine Lane regarding the timing of
when a call was placed to 9-1-1. See N.T., 5/3/11, at 204-06. In addition,
trial counsel did cross-examine a Commonwealth witness regarding a
discrepancy in her name as listed in police reports. See id. at 253.


                                          - 13 -
J-S05025-20


was too aggressive in cross-examining Ms. Lane and “hurt his image with the

jury.” Id. We agree with the PCRA court that Miner “cannot argue it both

ways.” Id. Thus, Miner’s fourth ineffectiveness claim fails.

      In his fifth and final claim of trial counsel’s ineffectiveness, Miner claims

that counsel was ineffective for failing to poll the jury. However, at the PCRA

hearing, prior PCRA counsel conceded that, based on case law, this claim

lacked arguable merit. We agree.

      As our Supreme Court has stated:

         An accused has an absolute right to poll the jury to ensure
         that each juror voluntarily has joined in the verdict as
         written and announced. Commonwealth v. Martin, 379
         Pa. 587, 109 A.2d 325 (1954). Failure to do so, however,
         does not constitute ineffectiveness of counsel in the absence
         of other factors. Here, the verdict slip contained the
         signatures of all twelve jurors. Appellant has demonstrated
         no error and, indeed, no prejudice.

Commonwealth v. Williams, 640 A.2d 1251, 1266 (Pa. Super 1994).

      Here, as in Williams, Miner’s verdict slip was signed by all twelve jurors.

Thus, Miner cannot establish prejudice, and his fifth ineffectiveness claim fails.

      In sum, the PCRA court properly rejected all of Miner’s claims of trial

counsel’s ineffectiveness and correctly concluded that none of the claims

entitled him to post-conviction relief.

      In his next six issues, Miner claims that the PCRA court erred in rejecting

his claims that appellate counsel provided ineffective assistance.

      In this case, the trial court actually appointed appellate counsel prior to

sentencing. In his sixth issue, Miner wished to raise the claim that appellate


                                      - 14 -
J-S05025-20



counsel was ineffective for failing to object to him receiving separate

sentences for burglary and theft. At the PCRA hearing, the parties agreed that

the offenses should have merged for sentencing purposes. Prior PCRA counsel

conceded that Miner could not prove prejudice because he received a

concurrent sentence on this theft charge. Nonetheless, Miner’s merger claim

is a non-waivable challenge to the legality of sentence. Commonwealth v.

Petersen, 49 A.3d 903, 911 (Pa. Super. 2012).          Miner’s theft conviction

should have merged with his burglary sentence. See generally, 42 Pa.C.S.A.

§ 9765.    As such, we grant Miner post-conviction relief and vacate the

concurrent sentence of six to twelve months he received for his theft

conviction. See N.T., 11/28/11, at 4.

      In his seventh issue, Miner asserts that appellate counsel should have

raised claims of trial counsel’s ineffectiveness as part of his direct appeal. At

the PCRA hearing, prior counsel conceded that this claim had no merit

because, in general, ineffectiveness claims must await collateral review. See

N.T., 4/24/17, at 64. We agree. Claims of ineffective assistance of counsel

are not cognizable on direct appeal except in limited circumstances not

applicable to any of Miner’s trial counsel ineffectiveness claims.          See

generally, Commonwealth v. Delgros, 183 A.3d 352 (Pa. 2018). Thus,

Miner’s seventh issue fails.

      In issues eight through eleven, Miner claims that appellate counsel was

ineffective in the claims he actually raised on appeal and his failure to support

those claims with citations to the record. Specifically, in his eighth and ninth

                                     - 15 -
J-S05025-20



issues, Miner asserts that appellate counsel was ineffective for raising a

Brady9 violation regarding the wrong evidence.

       Resolution of these issues requires the following summary of Miner’s

direct appeal. In the Rule 1925(b) statement, appellate counsel asserted that

the trial court erred in allowing the Commonwealth “to introduce testimony at

trial in [Case No.] 3215-2010 regarding [Ms. Lane’s] underwear as pictures of

such were not provided to [Miner] prior to trial.”          Miner, unpublished

memorandum at 5. In his brief to this Court, however, counsel asserted that

the trial court erred “by allowing the prosecution to publish to the jury the

photos depicting the injuries to [Ms. Lane] that were taken by [a nurse] as

they were never provided during discovery[.]” Id. at 2. We found Miner’s

issue to be waived, because it was not raised in his Rule 1925(b) statement.

Id. at 6.

       The PCRA court found Miner’s claim regarding the Brady misstep to be

of arguable merit. Id. at 11.10 The PCRA court concluded, however, that the

claim failed because Miner could not establish prejudice:

____________________________________________


9 Brady v. Maryland, 373 U.S. 83 (1963). A Brady claim requires a
petitioner to show (1) the prosecutor has suppressed evidence; (2) the
evidence, whether exculpatory or impeaching, is helpful to the defendant; and
(3) the suppression prejudiced the defendant. Commonwealth v. Cox, 146
A.3d 221, 229 (Pa. 2016).

10 In his Turner/Finley Brief, PCRA counsel mistakenly refers to the
photographs Miner wished to challenge based upon a Brady violation were of
the crime scene. See Turner/Finley Brief at 42. At the PCRA hearing, Miner



                                          - 16 -
J-S05025-20


             [T]here was no possibility that the outcome would have
          been different if [appellate counsel] filed the claim in
          regards to the photograph[s] as opposed to the
          underclothing and was able to properly cite that. While the
          Superior Court did not rule on the Brady violation [Miner
          wished to raise] in the direct appeal, the alleged Brady
          violation was meritless because the photograph[s’]
          introduction at trial did not change or affect [trial counsel’s]
          case.

PCRA Court Opinion, 6/19/19, at 12.

       Our review of the record supports the PCRA court’s conclusion that Miner

could not establish prejudice. At trial, trial counsel unsuccessfully objected to

the introduction of the photographs because the Commonwealth did not

provide them in discovery.         See N.T., 5/3/11, at 299-300.     At the PCRA

hearing, trial counsel testified that this evidence was not material to the

defense he presented at trial. See N.T., 4/24/17, at 84-85. Finally, this court

did not find Miner’s issue waived for lack of citation to the record, but rather

because it was inappropriately raised for the first time on appeal. See supra.

Thus, Miner’s eighth and ninth issues fail.

       In his tenth and eleventh issues, Miner asserts that the PCRA court erred

by rejecting his claim that appellate counsel was ineffective for not raising

issues regarding joinder and the Commonwealth’s use of perjured testimony,

even though he communicated these “errors” to counsel. See Turner/Finley

Brief at 13. We agree with the PCRA court’s conclusion that Miner cannot
____________________________________________


testified that he wished to challenge on appeal the use of pictures taken by
the nurse as part of her examination of Ms. Lane. See N.T., 4/24/17, at 48-
50. The PCRA court addressed the proper Brady claim. See infra.


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establish prejudice. As noted above, Miner initially agreed to the joinder of

the cases and the trial court, in its discretion, refused to sever them because

they were logically connected. See supra, at 9.

       Moreover, Miner’s claim that the Commonwealth used perjured

testimony has no support in the certified record. In making his argument,

Miner essentially asserts that, to the extent Ms. Lane’s testimony at the

second trial of Case No. 7251-2009 did not match her testimony from the first

trial, she committed perjury.          Even if this were the case, Miner cannot

establish that, had this claim been raised on direct appeal, the result would

have been different.        Thus, Miner’s tenth and eleventh claims regarding

appellate counsel’s ineffectiveness fail.

       In his final two issues, Miner claims that the PCRA court erred when it

held: 1) that the Commonwealth did not commit a Brady violation regarding

a police report;11 and 2) that the Commonwealth did not violate his

constitutional rights when the prosecutor alleged elicited perjured testimony

during his trial. Id. at 13.




____________________________________________


11 At the PCRA hearing, Miner also argued that the Commonwealth violated
Brady when it failed to turn over a victim impact statement and other
documents prior to sentencing. As noted by the PCRA court, Miner could not
establish a Brady violation because the items “were created for purposes of
sentencing and not for the adjudication of guilt. PCRA Court Opinion, 6/29/19,
at 14.



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J-S05025-20


      Initially, we must determine whether these claims are properly before

us. To be eligible for post-conviction relief, a petitioner must plead and prove

by a preponderance of the evidence that his conviction or sentence resulted

from one or more of the enumerated errors or defects in 42 Pa.C.S.A. section

9543(a)(2), and that the issues he raises have not been previously litigated.

Commonwealth v. Carpenter, 725 A.2d 154, 160 (Pa. 1999). An issue has

been "previously litigated" if the highest appellate court in which the petitioner

could have had review as a matter of right has ruled on the merits of the issue,

or if the issue has been raised and decided in a proceeding collaterally

attacking the conviction or sentence.          Carpenter, 725 A.2d at 160; 42

Pa.C.S.A. § 9544(a)(2), (3). If a claim has not been previously litigated, the

petitioner must then prove that the issue was not waived. Carpenter, 725

A.2d at 160. An issue will be deemed waived under the PCRA “if the petitioner

could have raised it but failed to do so before trial, at trial, during unitary

review, on appeal, or in a prior state post-conviction proceeding.”            42

Pa.C.S.A. § 9544(b).

      Miner’s prosecutorial misconduct claims based on Brady and its use of

perjured testimony at trial could have been raised on direct appeal. For this

reason, these two claims are waived. Carpenter, supra.

      In sum, because Miner’s concurrent sentence for his theft conviction

should have merged with his burglary sentence, we reverse the PCRA court’s

order to the extent that we vacate that judgment of sentence. All of Miner’s


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other claims of ineffectiveness regarding trial and appellate counsel lack merit.

In addition, Miner’s claims regarding an additional Brady violation and the

use of perjury are waived or otherwise without merit. Thus, with the limited

exception of part of his sentence, we agree with PCRA counsel’s assessment

that Miner’s appeal is wholly frivolous. We therefore grant counsel’s motion

to withdraw and affirm in part and reverse in part the PCRA court’s order

denying Miner post-conviction relief.

      Motion to withdraw granted.       Order affirmed in part and reversed in

part. Judgment of sentence for theft vacated. Jurisdiction relinquished.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 08/24/2020




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