J-S33028-15

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,             : IN THE SUPERIOR COURT OF
                                          :      PENNSYLVANIA
                    Appellee              :
                                          :
            v.                            :
                                          :
RICKY CHHEA,                              :
                                          :
                    Appellant             : No. 2043 EDA 2014

                    Appeal from the PCRA Order June 13, 2014,
                   Court of Common Pleas, Philadelphia County,
                 Criminal Division at No. CP-51-CR-0012794-2008

BEFORE: FORD ELLIOTT, P.J.E., DONOHUE and LAZARUS, JJ.

MEMORANDUM BY DONOHUE, J.:                            FILED JUNE 23, 2015

      Ricky Chhea (“Chhea”) appeals pro se from the June 13, 2014 order

entered by the Philadelphia County Court of Common Pleas dismissing his

petition filed pursuant to the Post Conviction Relief Act, 42 Pa.C.S.A. §§

9541-9546, (“PCRA”) without a hearing. Upon review, we affirm.

      When deciding Chhea’s direct appeal, we summarized the factual

history of this case as follows:

               On July 27, 2008 the decedent, Ratseiey Yun,
            [Chhea] and [Chhea]’s co-defendant, Sophana
            Sovann were neighbors in the 1800 block of South
            15th Street in Philadelphia, PA. The circumstances
            leading to the shooting death of Yun center around
            bad blood resulting from Sovann’s departure from
            the neighborhood gang, the TRGs, of which Sovann
            and Yun were members.

               Sovann’s departure from the TRGs in 2007
            angered Yun. Thereafter, according to Sovann’s
            defense, Yun embarked on a course of harassment
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           against him and his family in an effort to force
           Sovann back into the TRGs. In retaliation, on the day
           of the shooting, Sovann, along with [Chhea]
           obtained guns from Gregorio Chambers, aka,
           “Bayah.” A fourth individual, Johnny Un, assisted the
           trio by luring the decedent to the location where
           [Chhea] and his cohorts were waiting to shoot him. A
           total of sixteen (16) shots were fired mortally
           wounding the decedent in the chest, stomach, and
           torso.

              [Chhea] was subsequently arrested and charged
           with third-degree murder, criminal conspiracy, and
           numerous violations of the Uniform Firearms Act
           (UFA). On January 5, 2010, [Chhea] proceeded to a
           jury trial alongside his co-defendant Sophana
           Sovann. Following trial, the jury found [Chhea] guilty
           of [third-degree murder, criminal conspiracy, and
           possession of a firearm by a minor] on January 14,
           2010 and sentencing was deferred pending the
           preparation of a pre-sentence investigation report. …
           [T]he trial court sentenced [Chhea] to an aggregate
           term of 26 to 52 years’ imprisonment on March 26,
           2010.

Commonwealth v. Chhea, 1319 EDA 2010, 1-2 (Pa. Super. Sept. 14,

2011) (unpublished memorandum) (internal citations, formatting, and

footnotes omitted).

     Chhea filed a timely direct appeal and this Court affirmed his judgment

of sentence on September 14, 2011.       The Pennsylvania Supreme Court

denied his request for allowance of appeal on March 29, 2012. Chhea filed a

timely pro se PCRA petition on September 17, 2012. Therein, Chhea raised

boilerplate claims without specifying any actual error and requested “[the]

right to amend the PCRA petition upon the granting of [his] motion for




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transcripts and discovery.”        Pro Se PCRA Petition, 9/17/12, ¶¶ 6, 12.        He

included the same request in the memorandum of law filed in conjunction

with his PCRA petition, which otherwise included only hornbook law

concerning the right to relief under the PCRA and did not raise any specific

substantive claims.

      The PCRA court appointed counsel. As discussed later in this decision,

appointed   counsel        filed   a   detailed    no-merit    letter   pursuant    to

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

Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc). On

April 29, 2014, the PCRA court filed notice of its intention to dismiss Chhea’s

PCRA petition without a hearing pursuant to Pa.R.Crim.P. 907.

      On May 8, 2014, Chhea filed an objection to the PCRA court’s Rule 907

notice and PCRA counsel’s Turner/Finley no-merit letter. He concomitantly

filed a motion seeking the notes of testimony from his trial and “legal

materials,” which Chhea defined as discovery from his trial and documents

relating to his direct appeal in possession of his trial counsel and/or PCRA

counsel. Motions Related to PCRA Petition, 5/8/14, at 2. Chhea appended

to the motion/objection a series of letters that he had written to trial

counsel, PCRA counsel and the PCRA court judge, requesting this information

dating back to October 24, 2011, with the final letter, addressed to the

attention of the PCRA court, dated February 23, 2014. Nowhere in any of

these materials did Chhea make any substantive argument regarding his



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entitlement to PCRA relief, stating only that he required the requested

documents to discern if he is in fact entitled to relief. On June 17, 2014, the

PCRA court dismissed Chhea’s PCRA petition without a hearing and granted

PCRA counsel’s motion to withdraw.

      Chhea filed a timely pro se notice of appeal and complied with the

PCRA court’s order for the filing a concise statement of errors complained of

on appeal pursuant to Pa.R.A.P. 1925(b).        On appeal, Chhea raises the

following issues for our review:

         1. The PCRA court abused its discretion as the appeal
            before the court is incomplete due to the denial of
            the “right to appeal” under Article V, § 9, of the Pa.[]
            Constitution, where Chhea is unable to amend said
            PCRA petition without the very same documents,
            “legal materials[,]” that are in his counsel(s) [sic]
            possession. A fact thoroughly convey[ed] to [the
            PCRA] court by [Chhea] in his first objection[.]

         2. The PCRA court abused its discretion when it denied
            said motion(s) for discovery; previous appeals; and
            notes of testimony; “legal materials”, [sic] to amend
            said PCRA petition, challenging his PCRA counsel’s
            “limited scope of review” and/or at minimum make
            a[n] informed choice whether to continue with his
            appeal. Again, this fact was clearly expressed to the
            PCRA court in the first objection[.]

         3. The PCRA court abused its discretion when it denied
            said incomplete PCRA petition prematurely, when it
            became fully aware that Chhea could not amend said
            petition without the very documents, “legal
            materials”: discovery; previous appeals; and notes
            of testimony, any movant would have to exact an
            appeal. Which [sic] is in direct contradiction to a
            counseled litigant’s ability to exercise the “right to




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            appeal” with the aforementioned items Chhea has
            requested[.]

         4. The PCRA court denied Chhea due process[] where
            the circumstances involving the amending of the
            incomplete     PCRA    petition[]   revolved     around
            notification that [Chhea] could not rightfully cho[o]se
            to proceed pro se, where counsel(s), and the PCRA
            court, refuse[d] Chhea’s request for [“]access to the
            courts[”] through “legal materials” in possession of
            his counsel(s). The same “legal materials” both
            counsel(s) have had to draw their own conclusions
            as to Chhea’s constitutional rights[.]

Chhea’s Brief at 4.

      Although separated into four claims, the issues raised by Chhea boil

down to two arguments: (1) PCRA counsel did not conduct a review of the

entire record, rendering his withdrawal from the case “premature,” and (2)

the PCRA court erred and abused its discretion by failing to grant his request

that his prior counsel provide him with the notes of testimony and “legal

materials.” In its opinion authored pursuant to Pa.R.A.P. 1925(a), the PCRA

court found that counsel’s Turner/Finley no-merit letter was “thorough and

exhaustive” and dismissed Chhea’s PCRA petition based upon his failure “to

set forth any act or omission of trial counsel that would form the basis for an

ineffective assistance claim or any other allegation that entitles him to PCRA

relief.” PCRA Court Opinion, 8/28/14, at 4.

      Our standard of review regarding an order denying a petition under

the PCRA is whether the determination of the PCRA court is supported by the

evidence of record and is free of legal error.    Commonwealth v. Davis,



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86 A.3d 883, 887 (Pa. Super. 2014). The PCRA court’s findings will not be

disturbed unless there is no support for the findings in the certified record.

Id.

      We   begin   by    addressing   Chhea’s   claim   that    the   PCRA   court

prematurely permitted PCRA counsel to withdraw based upon PCRA counsel’s

failure to review the entire record.      Pursuant to Turner/Finley, PCRA

counsel must conduct an independent review of the record, addressing each

of the issues the petitioner wishes to raise and explaining why these issues

are meritless.     Commonwealth v. Freeland, 106 A.3d 768, 774-75

(Pa. Super. 2014).      The record reflects that PCRA counsel did just that.

Chhea raised no issues of substance in his pro se PCRA petition regarding his

entitlement to PCRA relief, and there is no indication in any of the

correspondence between Chhea and PCRA counsel that Chhea suggested any

issues that he wished to raise in his PCRA petition.           Despite this, PCRA

counsel addressed each of the boilerplate contentions raised in Chhea’s pro

se PCRA petition1 and concluded that there is no record support for his



1
  Chhea filed a form-based pro se PCRA petition, which allows a prisoner to
check boxes indicating the reasons he or she believes relief is due. The
bases included in the form mirror the provisions of 42 Pa.C.S.A. §
9543(a)(2), governing eligibility for relief under the PCRA. Here, Chhea
checked the following boxes, stating he was eligible for relief because of:

       (I) A violation of the Constitution of this Commonwealth
           or the Constitution or laws of the United States
           which, in the circumstances of the particular case, so
           undermined the truth-determining process that no


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claims.     No-Merit Letter, 3/6/14, at 7.     PCRA counsel further reviewed

several issues that were included in Chhea’s 1925(b) statement on direct

appeal but not advanced before the Superior Court for decision, and despite

Chhea’s waiver of these issues for review in the PCRA context, addressed

each claim and concluded that Chhea is not entitled to relief.         Id. at 8-9.

There is nothing in the record to support Chhea’s claim that PCRA counsel’s

review of the record was deficient or truncated. As such, no relief is due.

      Relying on precedent from our Supreme Court, Chhea further contends

that to secure his right to “meaningful appellate review,” the PCRA court was

required to provide him with “a full transcript or other equivalent picture of

the trial proceedings.”     Chhea’s Brief at 9 (quoting Commonwealth v.

Shields, 383 A.2d 844, 846 (Pa. 1978)). Our review of the record reveals


              reliable adjudication of guilt or innocence could have
              taken place.

          (II) 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.
                                  *    *    *

          (V) The unavailability at the time of trial of exculpatory
              evidence that has subsequently become available
              and would have changed the outcome of the trial if it
              had been introduced.

          (VI) The imposition of a sentence greater than the lawful
               maximum.

Pro Se PCRA Petition, 9/17/12, ¶ 4.


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that Chhea was not entitled to the requested documentation. Shields and

its progeny address cases wherein proceedings or portions of proceedings

were never transcribed and are not part of the certified record on appeal.

See, e.g., Shields, 383 A.2d at 845 (stating that the recording of the

Commonwealth’s closing argument – which the defense alleges was

prejudicial – was lost in the mail and never transcribed, leaving defense

counsel without a record of the closing remarks for purposes of filing post-

verdict motions and an appeal). The record reflects that PCRA counsel was

in possession of the items Chhea desired and that PCRA counsel reviewed

these items prior to filing his Turner/Finley no-merit letter. See No-Merit

Letter, 3/6/14, at 1 (indicating that PCRA counsel reviewed Chhea’s pro se

PCRA petition and accompanying memorandum of law, all of the transcripts,

the trial court’s 1925(a) opinion on direct appeal, the Superior Court’s

September 14, 2011 memorandum decision, all of the docket entries “and

other such documents”).    Thus, although Chhea himself did not have the

notes of testimony from trial, the defense was in possession of these

materials.

     Although Chhea is now representing himself on appeal, simply because

he requested the notes of testimony does not mean he was necessarily

entitled to them. In relation to the Shields decision, our Supreme Court has

held that “[t]o be entitled to relief due to the incompleteness of the trial

record the defendant must make some potentially meritorious challenge



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which cannot be adequately reviewed due to the deficiency in the

transcript.”   Commonwealth v. Albrecht, 720 A.2d 693, 701 (Pa. 1998)

(emphasis      added).    We   find    analogous   this   Court’s   decision   in

Commonwealth v. Ballem, 482 A.2d 1322 (Pa. Super. 1984).                In that

case, Ballem, an indigent defendant proceeding pro se, filed a request before

the trial court for copies of the notes of testimony from previous proceedings

and other portions of the docket, which the trial court denied. Id. at 1323.

On appeal to this Court, we recognized that the United States Supreme

Court has held “that constitutional due process and equal protection require

that a criminal defendant be afforded copies of his trial transcripts in order

to effectively prosecute an appeal,” id. (citing Griffin v. Illinois, 351 U.S.

12 (1956)), and that our Supreme Court has made it the trial court’s

responsibility to provide these documents to the pro se indigent defendant.

Id.   We concluded, however, that to be entitled to production of the

documents requested, there must be an action pending before the lower

court raising claims that “constitute[] compelling reasons warranting a grant

of [the] petition.”   Id. at 1324.    There was no action pending before the

lower court at the time of Ballem’s request for production of the notes of

testimony and other record documents – Ballem only stated that he wished

to raise claims of trial counsel’s ineffectiveness in a petition for post

conviction relief. Id. As such, this Court found no abuse of discretion in the

lower court’s denial of Ballem’s request. Id.



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     In the case at bar, there was a petition for PCRA relief pending before

the PCRA court at the time Chhea requested the notes of testimony and

“legal materials.” As in Ballem, however, there were no substantive claims

pending before the court for its assessment – only bald, boilerplate

statements that he satisfied the statutory requirements to be eligible for

relief under the PCRA and that he desired the production of the requested

documents to determine if there were specific arguments may entitle him to

relief. See supra, n.1; 42 Pa.C.S.A. § 9543(a)(2).

     The above law makes clear that we do not require the production of

documents for a veritable fishing expedition. Chhea articulated no claim –

let alone a potentially meritorious claim – constituting compelling reasons

why the PCRA court should grant his request for the production of

documents.    See Albrecht, 720 A.2d at 701; Ballem, 482 A.2d at 1324.

As such, we have no basis upon which to reverse the PCRA court’s decision.

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 6/23/2015




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