J-S80022-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                            Appellee

                       v.

DAMIEN RAYON BARNHILL

                            Appellant               No. 709 MDA 2016


              Appeal from the PCRA Order entered April 26, 2016
              In the Court of Common Pleas of Lancaster County
               Criminal Division at No: CP-36-CR-0004485-2012


BEFORE: LAZARUS, STABILE, and RANSOM, JJ.

MEMORANDUM BY STABILE, J.:                     FILED FEBRUARY 28, 2017

       Appellant, Damien Rayon Barnhill, appeals from the April 26, 2016

order entered in the Court of Common Pleas of Lancaster County, denying

his petition for collateral relief pursuant to the Post Conviction Relief Act

(PCRA), 42 Pa.C.S.A. §§ 9541-46. In addition, counsel has filed a Turner-

Finely “no-merit” letter1 and a motion seeking to withdraw.         Following

review, we grant counsel’s petition and affirm the order of the PCRA court.

       On September 18, 2013, at the conclusion of a four-day bench trial,

the trial judge found Appellant guilty of first-degree murder (18 Pa.C.S.A.

§ 2502(a)). On September 23, 2013, the trial judge imposed the mandatory

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1
  Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth
v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
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sentence of life imprisonment. Appellant filed a timely direct appeal to this

Court claiming trial court erred in denying the motion to suppress his July

27, 2012 statement to police, and erred in denying his motion in limine to

exclude his wife’s testimony concerning his non-verbal actions around the

time of the victim’s death.      A panel of this Court affirmed Appellant’s

judgment of sentence. Commonwealth v. Barnhill, No. 1901 MDA 2013,

unpublished memorandum (Pa. Super. filed August 14, 2014).

        On June 22, 2015, Appellant filed a pro se PCRA petition. Counsel was

appointed and submitted a counseled amended petition on October 23,

2015.     The Commonwealth filed its response on November 19, 2015.        A

hearing was held on February 9, 2016, during which both Appellant and trial

counsel testified. The sole issue raised at the hearing was Appellant’s jury

trial waiver.

        Following the hearing, Appellant filed a “Brief sur Amended PCRA” on

March 10, 2016, and the Commonwealth filed a response on March 30,

2016. By order entered April 26, 2016, the PCRA court denied Appellant’s

petition. This timely appeal followed.

        On July 19, 2016, Appellant’s PCRA counsel filed a motion to withdraw

as counsel along with a “no-merit” letter, seeking review of the issue

rejected by the PCRA court, i.e., whether “trial counsel was ineffective by

failing to fully and competently advise [Appellant] concerning his right to a




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trial by jury which resulted in [Appellant] making an unknowing decision to

waive his right to a jury trial.” Counsel’s No-Merit Letter, 7/19/16, at 3.2

       Before we may consider whether the PCRA court abused its discretion

by denying Appellant’s PCRA petition and requested relief, 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 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), abrogated by Pitts).
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2
  We note that counsel indicated in his no-merit letter that “in the event this
Court grants this Motion to Withdraw,” Appellant would have the right to
proceed pro se or with assistance of privately-retained counsel. Motion to
Withdraw as Counsel, 7/19/16, at ¶ 5. In light of counsel’s statement, this
Court issued an order on August 17, 2016, to clarify that Appellant could file
with this Court a response to the petition within 30 days of the order and
that “failure to file a pro se or counseled response may be considered as a
waiver of [Appellant’s] right to present his issues to this Court.” Order,
8/17/16, at 1. Appellant did not file a response.




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

counsel has filed an application to withdraw and filed 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.3

        We now turn to this appeal to determine whether it is indeed

meritless. 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.

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

omitted).

        In its opinion issued in conjunction with the order denying relief, the

PCRA court explained Appellant’s contention that his trial counsel failed “to

fully and competently advise him concerning his right a jury trial and that

this purportedly ineffective assistance resulted in his making an unknowing

waiver of his right to a jury trial such that he should be entitled to relief

under the PCRA.” PCRA Court Opinion, 4/26/16, at 1. The PCRA court then
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3
    See n. 2.



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summarized the factual and procedural background of the case, the written

jury trial waiver, and the testimony from both the on-the-record colloquy

and the PCRA hearing, complete with citations to the record.               Id. at 1-7.

The court cited Commonwealth v. Lassiter, 722 A.2d 657, 660 (Pa. 1998)

(Opinion Announcing Judgment of the Court), and the established three-

pronged test for ineffectiveness of counsel, i.e., that the underlying claim is

of arguable merit; that counsel had no reasonable basis for the action or

inaction; and that the defendant has been prejudiced by the ineffectiveness

of counsel. PCRA Court Opinion, 4/26/16, at 13.

      “A failure to satisfy any prong of the test for ineffectiveness will

require rejection of the claim.”     Com. v. Burno, 94 A.3d 956, 972 (Pa.

2014) (quoting Commonwealth v. Spotz, 870 A.2d 822, 830 (Pa. 2005),

cert. denied, 546 U.S. 984 (2005) (citations omitted)). Although failure to

satisfy even one prong of the ineffectiveness test defeats the claim, the

PCRA court addressed all three prongs, explaining its conclusions that

Appellant failed to satisfy even a single prong.               PCRA Court Opinion,

4/26/16, at 13-17.      The PCRA court concluded that Appellant’s “jury trial

waiver    was   valid   and   was   the    product   of    trial   counsel’s   effective

representation.” Id.

      We find that the PCRA court’s factual findings are supported by the

record.   Therefore, we shall not disturb them.           Further, we find the PCRA

court’s legal conclusions are supported by the evidence of record and are


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free of legal error.    Therefore, we affirm the PCRA court’s dismissal of

Appellant’s petition.

      Motion to withdraw granted. Order affirmed.

      Judge Lazarus joins this memorandum.

      Judge Ransom concurs in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/28/2017




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