J-S91043-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
               v.                              :
                                               :
                                               :
    GARY ADAM MILLER                           :
                                               :
                      Appellant                :   No. 932 MDA 2015

                  Appeal from the Order Entered May 4, 2015
                 In the Court of Common Pleas of Perry County
              Criminal Division at No(s): CP-50-MD-0000008-2001


BEFORE: FORD ELLIOTT, P.J.E., RANSOM, J., and STEVENS*, P.J.E.

MEMORANDUM BY STEVENS, P.J.E.:                        FILED JANUARY 10, 2017

        Appellant Gary Adam Miller appeals from the order entered in the

Court of Common Pleas of Perry County denying his first petition filed

pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-

9546. Miller’s court-appointed PCRA counsel has filed a petition to withdraw

his representation, along with an “Anders brief.”1 We grant PCRA counsel’s

petition to withdraw his representation and affirm the PCRA court’s order.

____________________________________________


1
  Counsel filed a brief pursuant to Anders v. California, 386 U.S. 738, 87
S.Ct. 1396 (1967), 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, 518 Pa. 491, 544 A.2d 927 (1988);
Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc).
However, since an Anders brief provides greater protection to a defendant,
(Footnote Continued Next Page)

* Former Justice specially assigned to the Superior Court.
J-S91043-16



      Previously, on direct appeal, this Court set forth, in relevant part, the

facts underlying this case as follows:

            According to the affidavit of probable cause, the charges
      against Miller arose out of a home invasion burglary perpetrated
      by Miller and Rodney Bible during the early morning hours of
      December 22, 2000. On that date, Trooper James E. Albert of
      the Pennsylvania State Police responded to a 911 call at the
      home of J.H., his wife, A.H., and their five minor children. At the
      scene, J.H. told Trooper Albert that he had been awakened by
      his wife telling him that there were two men in their bedroom.
      J.H. recognized Bible, but did not know Miller, whom Bible called
      “Alex” during the course of the incident.

             J.H. related that Bible was holding the couple’s nine-year-
      old son, who had been stripped naked, with a knife at his throat.
      Bible then ordered J.H. to leave the bedroom, go downstairs to
      the kitchen, and tell Miller where the family kept their money.
      After showing Miller where the money (approximately $527) was
      kept, Miller took J.H. to the garage at knife point and tied him
      with a garden hose and bailing twine. Miller then asked J.H. for
      the keys to the family’s van and demanded that J.H. tell him
      where the family kept duct tape so that Miller and Bible could
      use it to bind and gag the other members of the family. Fearing
      for the safety of his family if he refused, J.H. complied and Miller
      left. After approximately five minutes, J.H. was able to free
      himself and flee to a barn where he called 911.

            A.H. told Trooper Albert that she observed Bible bind and
      gag four of the couple’s children with duct tape. She also stated
      that she had been forced to write a check for the remainder of
      the money in the family’s checking account to give to Miller.

            The couple’s daughter, E.H., told Trooper Albert that while
      her mother was with Miller, Bible sexually assaulted one of the
      children, S.H., a six-year-old girl, and urinated on her before
                       _______________________
(Footnote Continued)

this Court may accept an Anders brief in lieu of a Turner/Finley letter.
See Commonwealth v. Fusselman, 866 A.2d 1109, 1111 n.3 (Pa.Super.
2004).




                                            -2-
J-S91043-16


       binding and gagging her. Bible then removed S.H. from the
       family’s residence in their van.2

             Soon after Miller and Bible left the home in the family’s
       van, they encountered two troopers who were responding to the
       911 call, who pursued the van. At one point the van stopped
       and the troopers left their vehicle. The van was then driven in
       reverse into the patrol car, causing the door of the patrol car to
       strike one of the troopers and knock him to the ground. In
       response, the troopers fired their weapons in an effort to stop
       the van. The van sped away and another pursuit ensued. The
       chase ended when the van left the roadway and struck an open
       foundation, causing the kidnapped victim, S.H., to suffer a
       broken arm.

             Trooper Albert interviewed Miller at a hospital   where he
       had been taken following the incident. During that      interview,
       Miller confessed to his involvement in the events        described
       above and explained that he had met Bible at a           homeless
       shelter.

Commonwealth v. Miller, No. 1182 MDA 2001, at 1-3 (Pa.Super. filed

4/24/02) (unpublished memorandum) (footnote in original).

       Represented by Kevin Prosser, Esquire of the Public Defender’s Office,

Miller entered into a negotiated guilty plea to three counts of robbery; one

count of conspiracy to commit robbery; one count of robbery of a motor

vehicle; one count of burglary; one count of kidnapping; one count of

interference with the custody of children; one count of theft by unlawful

taking; three counts of terroristic threats; and two counts of unlawful


____________________________________________


2
  Bible later confessed that he had sexually assaulted another of the
children, four-year-old daughter R.H., as well.




                                           -3-
J-S91043-16


restraint.3 As part of the negotiated guilty plea agreement, Miller agreed to

the imposition of a sentence of twenty to forty years in prison, and the

Commonwealth agreed to nol pros the remaining charges against Miller.4

       At the June 15, 2001, oral guilty plea colloquy, which referenced the

written    guilty   plea,    Miller   requested   a   pre-sentence   investigation.

Accordingly, sentencing was deferred until July 12, 2001, at which time, and

after review of the pre-sentence investigation report, the trial court

sentenced Miller in accordance with the plea agreement to an aggregate

term of twenty to forty years in prison.

       Miller filed a timely direct appeal, and represented by new privately-

retained counsel, William Costopoulos, Esquire, he presented a single claim:

guilty plea counsel was ineffective for failing to object to the defective guilty

plea colloquy and/or in failing to move to withdraw the guilty plea since it

was entered by Miller in an unknowing and involuntary manner.                Upon

review, this Court concluded Miller’s guilty plea colloquy was not defective,

and consequently, he voluntarily, knowingly, and understandingly tendered

his guilty plea.     See id.      Thus, his ineffective assistance of guilty plea


____________________________________________


3
  18 Pa.C.S.A. §§ 3701, 903, 3702, 3502, 2901, 2904, 3921, 2706, and
2902 respectively.
4
  Those charges were four additional counts of robbery, four additional
counts of terroristic threats, and five additional counts of unlawful restraint.




                                           -4-
J-S91043-16


counsel claim failed,5 and we affirmed his judgment of sentence on April 24,

2002.     Miller filed a petition for allowance of appeal, which our Supreme

Court denied on September 24, 2002. See Commonwealth v. Miller, 397

MAL 2002 (Pa. filed 9/24/02) (per curiam order).          Miller did not seek

certiorari with the United States Supreme Court.

        On or about October 23, 2003, Miller filed a pro se timely, first PCRA

petition, and by order entered on January 19, 2011,6 the PCRA court

directed that the Public Defender’s Office was appointed to represent Miller.

On February 11, 2011, Public Defender Sean Potter, Esquire entered his

appearance on behalf of Miller; however, on April 11, 2011, Attorney Potter

filed a motion to withdraw as counsel on the basis Miller would not cooperate

with him and had threatened to file a civil lawsuit against him.     By order

entered on April 14, 2011, the PCRA court granted Attorney Potter’s motion

to withdraw and appointed Ralph Germak, Esquire to represent Miller.

        On September 30, 2011, Attorney Germak filed an amended PCRA

petition on behalf of Miller, and the matter proceeded to a multi-day PCRA

____________________________________________


5
  As more fully discussed infra, our Supreme Court held in the seminal case
of Commonwealth v. Grant, 572 Pa. 48, 813 A.2d 726 (2002), that all
claims of guilty plea counsel’s ineffectiveness raised on direct appeal must
be deferred to consideration under the PCRA. However, Miller’s direct appeal
pre-dated Grant, and thus, this Court addressed his ineffectiveness claim
under the pre-Grant framework.
6
  The record is not clear as to the reasons for the delay in the appointment
of counsel.



                                           -5-
J-S91043-16


evidentiary hearing, commencing on October 11, 2011. After the conclusion

of the initial hearings, and prior to issuing a ruling, the PCRA court filed an

order on January 28, 2013, indicating it would permit Miller to present

additional    medical/psychiatric      evidence    and    testimony      related   to   his

retrospective competency to stand trial issues.

       On March 14, 2013, Attorney Germak filed a motion to withdraw his

representation on health basis, and following the grant of this motion, on

May 3, 2013, the PCRA court appointed William Shreve, Esquire to represent

Miller.    On May 28, 2014, the PCRA court held an additional PCRA

evidentiary hearing, and by order entered on May 4, 2015, the PCRA court

entered an order denying Miller’s PCRA petition.               This timely, counseled

appeal followed.      By order filed on June 4, 2015, the PCRA court directed

Miller to file a Pa.R.A.P. 1925(b) statement,7 and on June 29, 2015, counsel

filed on behalf of Miller a statement in which he presented six issues. The

PCRA court filed a detailed responsive Pa.R.A.P. 1925(a) opinion on January

8, 2016. Subsequently, as indicated supra, PCRA counsel filed in this Court

a petition to withdraw his representation and Anders brief.

       Preliminarily, we note that “[o]ur standard of review of the denial of

PCRA relief is clear; we are limited to determining whether the PCRA court’s

findings     are   supported     by    the     record    and   without     legal   error.”
____________________________________________


7
  In its order, the PCRA court specifically indicated Miller had twenty-five
days to file a Pa.R.A.P. 1925(b) statement.



                                             -6-
J-S91043-16


Commonwealth v. Wojtaszek, 951 A.2d 1169, 1170 (Pa.Super. 2008)

(quotation and quotation marks omitted).

     Before we proceed to review the merits of the issues presented in

PCRA counsel’s Anders brief, we must determine whether counsel has

satisfied certain procedural requirements to withdraw his representation.

     Counsel petitioning to withdraw from PCRA representation...must
     review the case zealously. [PCRA] 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.

     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.

Commonwealth v. Walters, 135 A.3d 589, 591 (Pa.Super. 2016)

(quotations omitted).

     Instantly, we determine that PCRA counsel has complied with the

requirements of Turner/Finley. Specifically, PCRA counsel’s Anders brief

and petition to withdraw detail the nature and extent of PCRA counsel’s

review, address the claims raised in Miller’s pro se PCRA petition and at the

PCRA hearing, and determine that the issues lack merit.        PCRA counsel



                                    -7-
J-S91043-16


indicated that after his own independent review of the record, he could not

identify any meritorious issues that he could raise on Miller’s behalf. Counsel

also attached proof that he sent Miller his petition to withdraw, along with

his Anders brief, and instructed him that he had the right to retain private

counsel or proceed pro se.8 As counsel has complied with the technical

Turner/Finley requirements to withdraw his representation, we must now

conduct our independent review of the issues raised by counsel and

determine whether the issues lack merit.9 See Walters, supra.

        Initially, we note that, on appeal from the denial of PCRA relief, our

standard of review calls for us to determine whether the ruling of the PCRA

court     is   supported   by    the   record    and   free   of   legal   error.   See

Commonwealth v. Breakiron, 566 Pa. 323, 781 A.2d 94 (2001). To be

eligible for PCRA relief, the appellant must prove the issues raised have not

been previously litigated or waived, and that “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.” 42 Pa.C.S.A. §§

9543(a)(3), (4). An issue has been previously litigated if the highest

appellate court in which the petitioner was entitled to review as a matter of

____________________________________________


8
    Miller has filed no response.
9
 Where appropriate for effective appellate review, we have consolidated and
considered Miller’s issues in an order different from the order presented in
PCRA counsel’s Anders brief.



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right   has   ruled   on   the   merits   of   the   issue.   Id.   §   9544(a)(2);

Commonwealth v. Crawley, 541 Pa. 408, 663 A.2d 676, 678 (1995). A

PCRA claim is waived “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).

        With regard to claims of ineffective assistance of counsel, we presume

that counsel is effective.    Commonwealth v. Rollins, 558 Pa. 532, 738

A.2d 435, 441 (1999).       To overcome this presumption, an appellant must

establish three factors: (1) that the underlying claim is of arguable merit;

(2) that counsel's performance lacked a reasonable basis; and (3) that the

ineffectiveness of counsel caused the appellant prejudice. Commonwealth

v. Travaglia, 541 Pa. 108, 661 A.2d 352, 356 (1995). A claim of

ineffectiveness may be denied by a showing that the appellant’s evidence

fails to meet any of these prongs. See id.

        In his first issue, Miller avers guilty plea counsel, Attorney Prosser,

was ineffective for failing to adequately investigate the possibility of a duress

defense. See PCRA Counsel’s Anders brief at 9-10. Additionally, he avers

direct appeal counsel, Attorney Costopoulos, was ineffective in failing to

raise the issue of guilty plea counsel’s ineffectiveness on direct appeal. See

PCRA Counsel’s Anders Brief at 10.

        Initially, we are guided by the following:

             Although we have held that claims of [guilty plea]
        counsel's ineffectiveness raised for the first time on collateral

                                       -9-
J-S91043-16


      review will no longer be deemed waived, Commonwealth v.
      Grant, 572 Pa. 48, 813 A.2d 726, 738 (2002), that holding does
      not apply here because [Miller’s] direct appeal concluded prior to
      [December 31, 2002, which is the effective date of] Grant. We
      will therefore analyze [Miller’s] claims of ineffective assistance of
      counsel under the pre-Grant framework, under which a
      petitioner cannot invoke substantive merits review of a waived
      claim of ineffective assistance of [guilty plea] counsel by simply
      appending a conclusory assertion that all intervening counsel
      were ineffective for failing to raise it. Rather, the only claim
      over which the PCRA court retains cognizance is that of appellate
      counsel's ineffectiveness. Commonwealth v. Rush, 576 Pa. 3,
      838 A.2d 651, 656 (2003). [Miller] must therefore present
      argument as to each layer of ineffectiveness, on all three prongs
      of the ineffectiveness standard. See Commonwealth v. McGill,
      574 Pa. 574, 832 A.2d 1014, 1022 (2003) (“[I]n order for a
      petitioner to properly raise and prevail on a layered
      ineffectiveness claim, he must plead, present, and prove” the
      ineffectiveness of appellate counsel.)[.] A layered claim of
      appellate counsel's ineffectiveness relates back to the actions of
      [guilty plea] counsel, so that the three prong test for [guilty
      plea] counsel's ineffectiveness, if satisfied, supplies the arguable
      merit prong of the claim of appellate counsel's ineffectiveness.
      Id.

Commonwealth v. Washington, 592 Pa. 698, 713-14, 927 A.2d 586, 594-

95 (2007) (citations and emphasis omitted).

      In the instant case, Miller, whose direct appeal concluded prior to the

effective date of Grant, has waived the instant ineffective assistance of

guilty plea counsel claim for failing to raise it on direct appeal. See

Washington, supra.        However, he has presented a “layered” claim of

ineffectiveness, and, thus, we shall examine whether guilty plea counsel,

Attorney Prosser, was ineffective as it relates to the arguable merit prong of

the claim of appellate counsel’s ineffectiveness. See id.




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J-S91043-16


        During the PCRA evidentiary hearing, with regard to his investigation

of the duress defense, Attorney Prosser testified, in relevant part, as follows:

              Every single thing was significant to me; and we
        investigated the duress defense through interviews, through
        reviewing the discovery, and by employing an expert who could
        explain to me how Mr. Miller could be under the influence of
        duress and still act in the way in which he apparently acted. So
        everything was important to me.

                                           ***

               [W]e left no stone unturned in attempting to---to posit a
        solid defense for [Miller].

N.T., 10/11/11, at 124.

        Additionally, Attorney Prosser testified that he reviewed the statutory

elements of duress with Miller “ad nauseam” and, had Miller chosen to

proceed to trial, Attorney Prosser would have presented a duress defense.

Id. at 125-28.

        In finding no merit to Miller’s claim that Attorney Prosser did not

adequately investigate a duress defense, the PCRA court credited Attorney

Prosser’s testimony as was within its purview.      PCRA Court Opinion, filed

1/8/16.10 See Commonwealth v. Spotz, 624 Pa. 4, 84 A.3d 294 (2014).

Accordingly, as Miller did not satisfy the necessary three prongs to establish

guilty plea counsel’s ineffectiveness, his derivative claim of appellate

counsel’s ineffectiveness must likewise fail. See Rush, supra.
____________________________________________


10
     We note the PCRA court’s opinion is not paginated.




                                          - 11 -
J-S91043-16


       Miller next suggests the PCRA court erred in concluding he was

competent at the time he pled guilty in 2001.11 In this regard, Miller

suggests the PCRA court placed undue weight on the opinions of Dr. Stanley

Schneider12 and Dr. Arthur De Carle13 as compared to the opinion of Dr.

____________________________________________


11
   Miller has not pointed to that place in the voluminous record where he
presented a challenge to his competency in the trial court or on direct
appeal. Generally, a substantive claim that is not raised at trial or on direct
appeal is waived for PCRA purposes; however, the issue of whether a
defendant was competent to stand trial is an exception to that rule. See
Commonwealth v. Brown, 582 Pa. 461, 872 A.2d 1139 (2005).
12
   At the PCRA evidentiary hearing, Attorney Prosser testified that he hired a
psychologist, Dr. Schneider, who evaluated Miller’s competency to stand trial
prior to Miller’s entry of his guilty plea. N.T., 10/11/11, at 38, 43-44. In an
April 3, 2001, letter, Dr. Schneider informed Attorney Prosser that Miller was
competent. Id. at 46, 49. Attorney Prosser sent additional information to
Dr. Schneider, and, in a May 7, 2001, letter, Dr. Schneider continued to
opine that Miller was competent.
13
    Dr. De Carle testified he evaluated Miller on June 2, 2011, and he
prepared a written evaluation on that day as to Miller’s competency
retrospective to 2000. N.T., 11/10/11, at 18. In his June 2, 2011, written
evaluation, he opined that “there were significant deficiencies in [Miller’s]
competency to stand trial as well as his ability to understand the complete
process...in 2001.” Id. Dr. De Carle indicated that his opinion was based,
in part, on information available to him that was referenced back to ten
years. N.T., 5/4/12, at 20. He testified that, in his report, he “stated there
was a limitation in terms of my evaluation when I met with [Miller] [in] that
I didn’t have a lot of objective information as to what his memory was like
[at the time he pled guilty].” Id. at 23.
       Following Dr. De Carle’s PCRA testimony on direct-examination, the
Commonwealth sent Dr. De Carle additional information, which had not been
provided to him by Miller. Id. at 20-23, 28-29. On cross-examination, Dr.
De Carle admitted the information altered his opinion in that “[i]t does
become clear that [Miller’s] ability to recall memories at [the point he pled
guilty] was reasonably intact.” Id. at 23. Also, he noted the additional
information “helped to identify that [Miller] knew that Mr. Prosser was an
(Footnote Continued Next Page)


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J-S91043-16


John Mitchell Hume.14 He also contends the PCRA court erred in determining

the documents upon which Dr. Hume relied in rendering his opinion were not

“validated” and in failing to find credible Dr. Hume’s testimony.

      Initially, we note that:

      A defendant is presumed to be competent to stand trial. Thus,
      the burden is on [an] [a]ppellant to prove, by a preponderance
      of the evidence, that he was incompetent to stand trial [or enter
      his guilty plea]. In order to prove that he was incompetent, [an]
      [a]ppellant must establish that he was either unable to
      understand the nature of the proceedings against him or to
      participate in his own defense.

Commonwealth v. Brown, 582 Pa. at 490-91, 872 A.2d at 1156 (citations

omitted).




                       _______________________
(Footnote Continued)

individual that was working on his behalf, that could help him[,] and [Miller]
was able [ ] to convey what his wishes were through that person, Mr.
Prosser.” Id. at 33. Dr. De Carle admitted that the additional information
clarified some missing points for him and provided evidence that Miller was
competent to stand trial. Id. at 35.
14
   Dr. Hume evaluated Miller on October 8, 2013. N.T., 5/28/14, at 10, 18.
He testified at the PCRA hearing that Miller told him he had been sexually
abused as a child and, when Bible sodomized him, it brought back painful
memories, leading Miller to be “reduced to following [Bible’s] orders[.]” Id.
at 36. Dr. Hume testified that he disagreed with Dr. Schneider’s opinion that
Miller was competent when he entered his guilty plea. Id. at 60. Dr. Hume
opined that Miller was “under the control of [Bible,]” and this altered his
mental state. Id. at 99. Dr. Hume opined that Miller was not competent at
the time he entered his guilty plea. Id. at 105-09. Dr. Hume based his
opinion, in part, on a document entitled “The Life of Gary Needham[.]” Id.
at 101-03.



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     The PCRA court heard extensive testimony on the issue of competency

and concluded Miller did not satisfy this standard.     More specifically, the

PCRA court explained as follows:

            In a letter dated April 3, 2001, Dr. Schneider indicated that
     [Miller] was competent to stand trial. [N.T., 10/11/11, at 46.]
     Dr. Schneider was the medical professional that evaluated
     [Miller] closest in time to the incident while the other doctors
     evaluated [Miller] many years after the incident, which is one of
     the [main] reasons his testimony was given significant weight.
     The [PCRA] court ha[s] utilized Dr. Schneider numerous times
     before this case and it is reasonable for the [c]ourt to rely on his
     [opinions] regarding [Miller’s] evaluation.

           After Dr. [De Carle’s] initial evaluation of [Miller], which
     was ten years after [Miller’s] plea, the Commonwealth provided
     Dr. [De Carle] with information that was not initially provided to
     him. [N.T., 5/4/12, at 20.] After reviewing these materials,
     which included reports from the time of the incident, it became
     clear to Dr. [De Carle] that [Miller’s] ability to recall memories
     was reasonably intact. Id. at 23[.] It appears that [Miller]
     attempted to deceive the [PCRA] court by not supplying Dr. [De
     Carle] (Miller’s own expert) with all of the pertinent documents.
     The [PCRA] court has found no reason to discredit the testimony
     of Dr. [De Carle], although he ultimately became unavailable for
     further proceedings after [Miller] attempted to sue him.

           The [PCRA] court allowed for the evaluation of [Miller] by
     Dr. Hume after two doctors had already deemed [Miller]
     competent during the time of the incident and during the
     adjudication of the case. Dr. Hume evaluated [Miller] many
     years after [Miller] had tendered the guilty plea and many of the
     documents that he relied upon for [Miller’s] evaluation were not
     previously utilized during this case. Many of the materials are
     suspect.

           There is a particular piece of evidence that was concerning
     to the [PCRA] court: a document entitled “The Life of Gary
     Neeham,” allegedly written by Jenny Landis Steward. Dr. Hume
     was not able to confirm who actually authored this document but
     gave weight to information within the writing regarding [Miller]
     being behind developmentally at a young age and being sexually


                                    - 14 -
J-S91043-16


     abused as a child. There were statements by several doctors
     within this piece of writing that are uncorroborated. [N.T.,
     5/28/14, at 120.]

           During the cross-examination of Dr. Hume, it was
     confirmed that there is no evidence to establish that [Miller] was
     sexually assaulted during the night of the incident, although in a
     letter he wrote to the [PCRA] court, he claims that [Bible]
     sodomized him. The letter stated, “Without warning, he nailed
     me. I landed backwards very hard.” District Attorney Chenot
     pointed out [this description] would not be consistent with the
     physics of sodomization. Id. at 127-30.

           These types of inconsistencies within Dr. Hume’s testimony
     are what led [the PCRA] court to the conclusion that some of the
     evidence Dr. Hume relied upon during his evaluation of [Miller]
     were not validated. This, along with the fact that the two
     previous doctors evaluated [Miller] much closer to the time of
     the incident, caused the [PCRA] court to place more weight on
     the testimony of Dr. Schneider and Dr. [De Carle].

                                 ***

            [Moreover, in finding Miller to be competent, the PCRA
     court considered Miller’s actions occurring prior to the entry of
     his guilty plea. For instance, Miller] consistently insisted that
     Attorney Prosser not share the witness statements with his
     mother, girlfriend, or psychologist. [N.T., 10/11/11,] at 37.
     This indicated to the [PCRA] court that [Miller] was competent
     enough to understand the severity of the crimes he committed[.]
     ...Furthermore,    Attorney   Prosser   testified  that   [Miller]
     continuously suggested various theories as an attempt to prove
     his innocence. Id. at 38[.] [Miller] admits to preparing a letter
     that is referenced to as his duress defense that was given to
     Attorney Prosser around the time that they first met. [Miller]
     states that he gave this letter to his attorney to explain what
     happened the night of the incident in order [for] Attorney
     Prosser to help him with his case. Id. at 36[.] This is evidence
     that [Miller] was competent during the time that the guilty plea
     was entered because he was able to assist his counsel in his
     defense. Furthermore, Attorney Prosser asked [Miller] if he felt
     as if he was competent to stand trial and [Miller] answered in
     the affirmative. Attorney Prosser further clarified and asked
     [Miller] if he understood the charges against him[.] [Miller]


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J-S91043-16


        responded with “Yes, I definitely understand.” [N.T., 5/4/12, at
        29.]

PCRA Court Opinion, filed 1/8/16.

        We find the PCRA court properly “concluded that [Miller] was able to

consult with counsel rationally and possessed a rational and factual

understanding of the proceedings.”         Brown, 582 Pa. at 491, 872 A.2d at

1157.     The PCRA court properly considered testimony related to Miller’s

actions prior to the entry of his guilty plea.      Further, the expert evidence

relied upon by the PCRA court came from sources closer in time to Miller’s

plea and with greater opportunity to interact with and judge Miller’s

competence on that date. Miller essentially asks us to reweigh the evidence;

however,     this   Court   will   not   overturn   a   PCRA   court's   credibility

determinations when, as here, there is evidence on the record to support

those determinations. Commonwealth v. Anderson, 995 A.2d 1184

(Pa.Super. 2010).

        Moreover, the record supports the PCRA court’s conclusion that some

of the evidence relied upon by Dr. Hume in rendering his opinion; namely,

the document entitled “The Life of Gary Needham,” which reported about

Miller’s alleged sexual abuse, was not “validated.” Specifically, upon cross-

examination at the PCRA hearing, Dr. Hume admitted there was no

corroborating information supporting the assertions made in the document.

N.T., 5/28/14, at 118. The PCRA court was free to assess and weigh these

factors, and we find no error in this regard. See Breakiron, supra.

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     In his next claim, Miller alleges Attorney Costopoulos was ineffective in

failing to raise on direct appeal the substantive issue of whether Miller was

competent at the time he pled guilty. We agree with the PCRA court that

Attorney Costopoulos was not ineffective in this regard.

     As indicated supra, the PCRA court concluded that the evidence

revealed Miller was competent when he entered his guilty plea, and thus,

there was no arguable merit to Miller’s underlying claim of incompetency. In

rejecting Miller’s ineffectiveness claim premised upon competency, the PCRA

court concluded Attorney Costopoulos cannot be deemed ineffective in failing

to raise on appeal a meritless claim. PCRA Court Opinion, filed 1/8/16. We

find no error in this regard. See Breakiron, supra.

     In his final claim, Miller suggests the PCRA court erred in finding Miller

“failed to demonstrate that the underlying duress defense claim had

arguable merit.”   PCRA Counsel’s Anders Brief at 11.       Specifically, Miller

suggests that he told guilty plea counsel that “[Bible] accosted him at knife

point while in Harrisburg and led him, at knife point, to the Mennonite

home.” Id. at 12 (citation to record omitted).

     The issue of the defense of duress, and counsel’s stewardship with

regard thereto, is discussed extensively supra. In any event, as the PCRA

court noted, even if Miller was initially accosted by Bible, “there is

substantial proof that [Miller] exceeded what [Bible] required of him during

the course of the incident and eventually became a willing participant.”


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PCRA Court Opinion, filed 1/8/16.     We find no error in this regard.   See

Breakiron, supra

     We have conducted our own independent review and conclude the

issues lack merit.   Thus, we affirm the PCRA court’s order denying Miller’s

first PCRA petition and grant PCRA counsel’s petition to withdraw his

representation.

     Petition to Withdraw Granted; Order Affirmed.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/10/2017




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