J-S24004-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

ANTHONY JACKSON

                            Appellant                  No. 404 EDA 2014


               Appeal from the PCRA Order December 16, 2013
             In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0014203-2007;
              CP-51-CR-0014205-2007; CP-51-CR-0014206-2007


BEFORE: GANTMAN, P.J., ALLEN, J., and MUSMANNO, J.

MEMORANDUM BY GANTMAN, P.J.:                           FILED APRIL 24, 2015

        Appellant, Anthony Jackson, appeals from the order entered in the

Philadelphia County Court of Common Pleas, denying his first petition

brought pursuant to the Post Conviction Relief Act (“PCRA”).1 We affirm.

        The relevant facts and procedural history of this appeal are as follows.

           On the night of September 10, 2007, [Wilson F.], an
           Operations Specialist in the United States Coast Guard,
           was standing on the steps outside his house at 1848 Sulis
           Street in Philadelphia. Also outside were his housemate,
           [David P.], and his friend, [Kwame F.]. During this time,
           two men walked down 19th Street and stood on the corner
           near [Wilson F.’s] house. Moments later, a burgundy
           Dodge Neon turned on Sulis Street from 19th Street and
           stopped by the two men. A passenger offered the two
           men a ride to a party, which they declined, saying they
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1
    42 Pa.C.S.A. §§ 9541-9546.
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       would meet them there. A few minutes later, the Neon
       drove away leaving the two men on the corner. Right after
       that, [David P.] went inside, but [Wilson F.] and [Kwame
       F.] remained outside.

       Moments later, [Kwame F.] saw two men in black, one
       wearing a mask, ducking and coming up the sidewalk
       toward the two men. This prompted [Kwame F.] to say
       that it looked like there was about to be a shootout. Then,
       for no apparent reason, one of the two men on the corner
       pulled a gun from under his shirt, pointed it at [Kwame F.],
       and said “yeah you.” That prompted [Wilson F.] to grab
       [Kwame F.’s] shoulder and tell him to run. [Kwame F.]
       ran inside the house safely, but before [Wilson F.] could
       get inside, the man with the gun shot [Wilson F.] in his
       right thigh and right foot. [Wilson F.] yelled out that he
       was hit and ran into the house and up the stairs until he
       reached [David P.’s] bedroom, where he bled profusely
       while [Kwame F.] tried to apply first aid and [David P.]
       called 9-1-1.     Medical personnel arrived about ten to
       fifteen minutes later and took [Wilson F.] to Einstein
       Hospital.

       About ten minutes after [Wilson F.] was taken to the
       hospital, police took [Kwame F.] and [David P.] about a
       block away to where moments earlier, Officer [Jason] Reid
       had stopped a burgundy Dodge Neon after receiving flash
       information that four males inside a vehicle matching that
       description might have knowledge of the shooting.
       Removed from the car were [Timothy J.], [Russell L.],
       [Jerrel M.], and [Appellant], who was very anxious and
       sweated heavily when Officer Reid spoke with him.
       [Kwame F.] was able to positively identify both the car and
       its driver and front seat passenger as being outside the
       house just before the shooting. [Appellant] and the three
       others were then taken to a police station, but were
       released later that day.

       On September 11, 2007, [Wilson F.] gave a description of
       the shooter to Detective [Stephen] Grace at Einstein
       Hospital after he woke up from surgery. Based on the
       description given by [Wilson F.], Detective Grace prepared
       two photo arrays, one of which included [Appellant’s]
       photograph. On September 12, 2007, Detective Grace

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        returned to Einstein to show the arrays to [Wilson F.].
        When [Wilson F.] viewed the first array, which included
        [Appellant’s] image and seven others with similar facial
        features, he immediately recognized [Appellant], stating:
        “That’s the person that shot me.” On the second array,
        [Wilson F.] was less certain, but identified codefendant
        [Rasheed B.] as the second male on the corner who was
        with the shooter.    [Wilson F.] circled the photos of
        [Appellant] and [Rasheed B.] and signed his name to both
        arrays. Arrest warrants were then obtained for [Appellant]
        and [Rasheed B.].

        [Appellant] surrendered on October 9, 2007, and gave a
        statement to Detective Grace in which he said that he was
        at a birthday party with [Timothy J.] at the time the
        shooting occurred. At trial, [Timothy J.] testified that
        [Appellant] was at his birthday party at the time the
        shooting occurred, but that they left at about midnight in
        order to take [Russell L.] home because he was
        intoxicated.   [Appellant] also called [Clifton G.] who
        testified that [Appellant] had a reputation for being
        nonviolent and [another witness] who testified that
        [Appellant] had a reputation for being mild-mannered and
        respectful.

        The bullet that struck [Wilson F.’s] leg hit an artery and his
        wounds required four surgeries and over five weeks of
        hospitalization. At the time of trial, [Wilson F.] was still
        taking medication for pain and neurological damage, was
        still in physical therapy, and had lingering muscle and
        nerve damage that caused his leg to buckle when he
        walked.

Commonwealth        v.   Jackson,       No.   152   EDA   2010,   unpublished

memorandum at 1-3 (Pa.Super. filed January 19, 2011) (quoting Trial Court

Opinion, filed May 10, 2010, at 2-4).

     Following trial, a jury convicted Appellant of two (2) counts each of

aggravated assault and criminal conspiracy, and one (1) count each of

attempted murder, carrying a firearm without a license, possessing an

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instrument of crime, and recklessly endangering another person.              On

October 31, 2008, the court sentenced Appellant to an aggregate term of

fifteen (15) to thirty (30) years’ imprisonment.      This Court affirmed the

judgment of sentence on January 19, 2011, and our Supreme Court denied

Appellant’s petition for allowance of appeal on August 30, 2011.

       On August 9, 2012, Appellant timely filed a pro se PCRA petition. In it,

Appellant raised multiple claims of ineffective assistance of trial and direct

appeal counsel.      The court appointed PCRA counsel, who filed a motion to

withdraw representation and “no-merit” letter, pursuant to Commonwealth

v. Turner, 518 Pa. 491, 544 A.2d 927 (1988) and Commonwealth v.

Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc). On October 31, 2013,

the court issued notice of its intent to dismiss the petition without a hearing,

pursuant to Pa.R.Crim.P. 907.2 The court denied PCRA relief on December

16, 2013. That same day, the court permitted PCRA counsel to withdraw.

On January 10, 2014, Appellant timely filed a pro se notice of appeal and


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2
  The PCRA court notes Appellant “mailed the [c]ourt” a pro se response to
the Rule 907 notice, which the court received on November 25, 2013.
(PCRA Court Opinion, filed April 7, 2014, at 2). Significantly, Appellant’s pro
se response to the Rule 907 notice does not appear in the certified record,
and the criminal docket entries do not list the pro se filing. Thus, it appears
Appellant did not properly file the pro se response to the Rule 907 notice.
See Commonwealth v. Crawford, 17 A.3d 1279, 1282 (Pa.Super. 2011)
(stating “simply depositing a motion in a judge’s chambers is not filing,” and
“the document must at least be addressed to a proper filing office within the
Unified Judicial System in order to complete the filing”).



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concise statement of errors complained of on appeal, pursuant to Pa.R.A.P.

1925(b).

      Appellant raises three issues for our review:

           WHETHER PCRA COUNSEL [ERRED] BY FILING A “NO-
           MERIT” LETTER, WHERE COUNSEL FAILED TO PROPERLY
           REVIEW THE RECORD AND [APPELLANT’S] CLAIMS WERE
           MERITORIOUS.

           WHETHER [THE] PCRA COURT [ERRED] BY ACCEPTING
           COUNSEL’S “NO-MERIT” LETTER, WHERE COUNSEL’S
           FINDINGS WERE NOT SUPPORTED BY THE RECORD.

           WHETHER [THE] PCRA COURT [ERRED] BY NOT HAVING
           AN EVIDENTIARY HEARING WHEN THERE WAS A GENUINE
           ISSUE OF MATERIAL FACT PRESENT THAT NEEDED TO BE
           RESOLVED.

(Appellant’s Brief at 4).

      Our standard of review of the denial of a PCRA petition is limited to

examining     whether       the   evidence    of   record     supports    the     court’s

determination    and    whether      its     decision    is   free   of   legal    error.

Commonwealth v. Conway, 14 A.3d 101 (Pa.Super. 2011), appeal denied,

612 Pa. 687, 29 A.3d 795 (2011). This Court grants great deference to the

findings of the PCRA court if the record contains any support for those

findings. Commonwealth v. Boyd, 923 A.2d 513 (Pa.Super. 2007), appeal

denied, 593 Pa. 754, 932 A.2d 74 (2007).                We give no such deference,

however, to the court’s legal conclusions.          Commonwealth v. Ford, 44

A.3d 1190 (Pa.Super. 2012). Further, a petitioner is not entitled to a PCRA

hearing as a matter of right; the PCRA court can decline to hold a hearing if


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there is no genuine issue concerning any material fact, the petitioner is not

entitled to PCRA relief, and no purpose would be served by any further

proceedings. Commonwealth v. Wah, 42 A.3d 335 (Pa.Super. 2012).

      On appeal, Appellant contends PCRA counsel did not conduct a proper

review of the issues raised in the pro se PCRA petition.        Appellant insists

PCRA counsel incorrectly interpreted some of the issues raised in the pro se

PCRA petition, and the legal conclusions in the “no-merit” letter are

unsupported by the record. Moreover, Appellant posits, “The record of this

matter supports a finding that the court failed to conduct an independent

review   of   the   record   before   accepting   counsel’s   ‘no-merit’   letter.”

(Appellant’s Brief at 45).   Appellant concludes the PCRA court erroneously

accepted the “no-merit” letter, and the court should not have permitted

PCRA counsel to withdraw. Appellant further concludes that genuine issues

of material fact still exist, and the PCRA court should have conducted an

evidentiary hearing. We disagree.

      “Before an attorney can be permitted to withdraw from representing a

petitioner under the PCRA, Pennsylvania law requires counsel to file and

obtain approval of a ‘no-merit’ letter pursuant to the mandates of

Turner/Finley.”      Commonwealth v. Karanicolas, 836 A.2d 940, 947

(Pa.Super. 2003) (emphasis in original).

         [C]ounsel must…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 the petitioner wants to have reviewed,

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          explaining why and how those issues lack merit, and
          requesting permission to withdraw.

Commonwealth v. Wrecks, 931 A.2d 717, 721 (Pa.Super. 2007). Counsel

must also send to the petitioner a copy of the “no-merit” letter or brief and

petition to withdraw and advise the petitioner of his right to proceed pro se

or    with private      counsel.     Id.       “Substantial compliance      with   these

requirements will satisfy the criteria.”          Karanicolas, supra.       Additionally,

the PCRA court “must conduct its own independent evaluation of the record

and     agree    with     counsel    that      the   petition   is    without   merit….”

Commonwealth v. Reed, 107 A.3d 137, 140 (Pa.Super. 2014).

       Instantly, counsel filed a Turner/Finley letter and motion to withdraw

as counsel with the PCRA court. Counsel listed the issues Appellant wished

to raise and explained why the issues merit no relief.3                Counsel indicated

that he sent Appellant a copy of the “no-merit” letter and motion to

withdraw, as well as an explanation of Appellant’s right to proceed pro se or

with private counsel.          Thus, counsel substantially complied with the

Turner/Finley requirements.           See Wrecks, supra.             Moreover, the PCRA

court conducted an independent review of the record and agreed with

counsel that the issues raised in Appellant’s pro se PCRA petition were


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3
  Contrary to Appellant’s assertions, the record reveals that PCRA counsel
correctly interpreted all of the issues raised in the pro se PCRA petition and
provided support for his conclusion that the issues lacked merit.



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meritless. See Reed, supra. Thus, the PCRA court did not err in permitting

counsel to withdraw.

       In addition to attacking the court’s decision to allow PCRA counsel to

withdraw, Appellant asserts that PCRA counsel was ineffective on multiple

bases.    Appellant, however, failed to raise these claims in a properly filed

response to the PCRA court’s Rule 907 notice. 4           Consequently, Appellant’s

claims regarding PCRA counsel’s purported ineffectiveness are waived. See

Ford, supra (holding claims of PCRA counsel’s ineffectiveness cannot be

raised for first time after notice of appeal has been filed from underlying

PCRA matter). Although Appellant’s brief includes argument regarding trial

and   direct   appeal     counsels’    ineffectiveness,   Appellant   presents   such

argument in an attempt to demonstrate PCRA counsel’s ineffectiveness in

conjunction with the preparation of the “no-merit” letter. Appellant’s pro se

Rule 1925(b) statement also framed his issues in terms of PCRA counsel’s

ineffectiveness, rather than raising independent claims of trial and direct

appeal counsels’ ineffectiveness. See Pro Se Rule 1925(b) Statement, filed

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4
  Appellant insists “[a] proper reading of Appellant’s objections to the court’s
[Rule 907] notice reveals that Appellant sought to preserve claims of PCRA
counsel’s ineffectiveness regarding all of the claims presented….”
(Appellant’s Brief at 15). We emphasize, however, Appellant’s pro se
response to the Rule 907 notice does not appear in the certified record, and
this Court cannot consider any item that is not part of the certified record.
See Commonwealth v. Houck, 102 A.3d 443 (Pa.Super. 2014) (reiterating
appellate court may consider only those materials included in certified
record, when resolving issues).



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1/10/14, at 1-2. Thus, we do not undertake any further review of trial and

direct appeal counsels’ purported ineffectiveness. Based upon the foregoing,

we affirm the order denying PCRA relief.

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/24/2015




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