J-S24040-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
               v.                              :
                                               :
                                               :
    WILLIAM SHONTAY JOHNSON                    :
                                               :
                      Appellant                :   No. 1698 WDA 2016

                  Appeal from the PCRA Order October 7, 2016
                In the Court of Common Pleas of Indiana County
              Criminal Division at No(s): CP-32-CR-0001271-2014


BEFORE:      PANELLA, J., STABILE, J., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.:                              FILED MAY 5, 2017

        Appellant William Shontay Johnson appeals from the order entered by

the Court of Common Pleas of Indiana County denying Appellant’s petition

pursuant to the Post Conviction Relief Act (“PCRA”).1            PCRA appellate

counsel filed a petition to withdraw, claiming there are no non-frivolous

issues to raise on appeal. After careful review, we grant counsel permission

to withdraw and affirm the PCRA court’s order.

        On May 19, 2015, a jury convicted Appellant of delivery of a controlled

substance, conspiracy to deliver a controlled substance, and possession of a

controlled substance.        On August 3, 2015, the trial court imposed an


____________________________________________


*
    Former Justice specially assigned to the Superior Court.
1
    42 Pa.C.S. §§ 9541-9546.
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aggregate sentence of three to ten years’ imprisonment.         On August 5,

2015, the trial court entered an amended sentencing order indicating that

the possession charge merged with the delivery charge for sentencing

purposes.   This did not affect Appellant’s aggregate sentence.     On August

25, 2015, Appellant filed a notice of appeal.     On February 19, 2016, this

Court affirmed the judgment of sentence. Appellant did not file a petition for

allowance of appeal with our Supreme Court.

      On May 5, 2016, Appellant filed a timely pro se PCRA petition.       The

PCRA court appointed William G. Martin, Esq., who assisted Appellant in

filing an amended petition. On September 28, 2016, the PCRA court held a

hearing at which the parties stipulated that Appellant was entitled to credit

for time served between June 17, 2014 and July 30, 2014, in addition to the

credit he already had received.     In an order dated October 7, 2016, the

PCRA court granted Appellant’s PCRA petition in part by granting Appellant’s

aforementioned claim for credit for time served. However, the PCRA court

denied Appellant’s petition in all other respects. This timely appeal followed.

      When reviewing the denial of a PCRA petition, we are guided by the

following standard:

      The standard of review for an order denying post-conviction
      relief is limited to whether the record supports the PCRA court's
      determination, and whether that decision is free of legal error.
      The PCRA court's findings will not be disturbed unless there is no
      support for the findings in the certified record.

Commonwealth v. Allen, 48 A.3d 1283, 1285 (Pa.Super. 2012) (citations

omitted).

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     Before we proceed to review the merits of Appellant’s PCRA petition,

we must evaluate counsel’s petition to withdraw his representation:

     Counsel petitioning to withdraw from PCRA representation must
     proceed ... under [Commonwealth v. Turner, 518 Pa. 491,
     544 A.2d 927 (1988) and Commonwealth v. Finley, 550 A.2d
     213 (Pa.Super. 1988)] and ... must review the case zealously.
     Turner/Finley 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. Doty, 48 A.3d 451, 454 (Pa.Super. 2012) (quoting

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

     We note that defense counsel has filed his petition to withdraw on the

basis of frivolity pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct.

1396, 18 L.Ed.2d 493 (1967) and Commonwealth v. Santiago, 602 Pa.

159, 161, 978 A.2d 349, 351 (2009). Although Anders briefs are filed by

counsel who wish to withdraw on direct review, we will accept counsel’s

Anders brief in lieu of a Turner-Finley letter, as an Anders brief provides




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greater protection to criminal defendants.         See Commonwealth v.

Fusselman, 866 A.2d 1109, 1111 n.3 (Pa.Super. 2004).

      After reviewing the record and counsel’s petition to withdraw, we find

that PCRA appellate counsel has complied with the technical requirements of

Turner and Finley, supra. In his appellate brief, PCRA appellate counsel

detailed the nature and extent of his review, listed the ten issues that

Appellant raised in his petition, and explained why he believed each issue

was frivolous. Counsel indicated that after his own independent review of

the record, he could not identify any meritorious issues that he could raise

on Appellant’s behalf.     Moreover, counsel attached his letter to Appellant

specifically indicating that he believed that the appeal was wholly frivolous

for the reasons set forth in his brief and notifying him of his right to raise

additional points for consideration by proceeding pro se or with the

assistance of privately retained counsel.     See Commonwealth v. Muzzy,

141 A.3d 509, 511 (Pa.Super. 2016) (citing Commonwealth v. Friend, 896

A.2d 607 (Pa.Super. 2006)).          We may proceed to review the merits of

Appellant’s petition for collateral relief.

      Appellant presents the following claims for our review on appeal:

      1. [T]he magisterial district judge in this case intentionally
         deceived this Court thereby committing a fraud upon the
         Court by providing in the records of this case that the initial
         date of confinement was July 30, 2014, when she knew
         [Appellant] was arrested on June 17, 2014[.]

      2. [Appellant] was not afforded a preliminary arraignment or
         offered counsel as required by law[.]


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     3. [T]he docket numbers           on   [Appellant’s]   cases   were
        intentionally switched[.]

     4. [T]he prosecution misled and deceived the Court with the
        confusion over whether [Appellant] was charged with 30
        bags of heroin or 11 bags of heroin[.]

     5. [T]here was no heroin found in [Appellant’s] possession or on
        [Appellant’s] person[.]

     6. [Appellant] was charged with the 30 bags of heroin
        recovered from the co-defendant’s anus over which
        [Appellant] had no control[.]

     7. [Appellant] did not receive a fair trial due to the lies
        presented by the police officers, co-defendant, and the
        confidential informant[.]

     8. [Appellant’s] 6th amendment right to confront his accusers
        was violated by the failure of the prosecution to call the
        laboratory technician as a witness who tested and weighed
        the heroin[.]

     9. [T]he prosecution failed to disclose the deals made with the
        “co-defendant” and the confidential informant[.]

     10. [Appellant] was sentenced for the 30 bags of heroin which
         were never presented into evidence and the charge regarding
         the 11 bags of heroin was dismissed[.]

Concise Statement, 11/21/16, at 1-2.

     Appellant first claims “the magisterial district judge in this case

intentionally deceived this Court thereby committing a fraud upon the Court

by providing in the records of this case that the initial date of confinement

was July 30, 2014, when she knew [Appellant] was arrested on June 17,

2014.” Concise Statement, at 1. Appellant offers no evidence to support his

bald allegation of fraud. To the extent this argument can be construed as a


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request for credit for time served, this claim is moot as the PCRA court

agreed to the parties’ stipulation that Appellant was entitled to additional

credit for this time period that had been previously unaccounted for.

Accordingly, we need not review this argument any further.

      Second, Appellant contends that he was not afforded a preliminary

arraignment or offered counsel as required by law. Appellant was held on a

detainer on an unrelated matter from his arrest until July 30, 2014.       We

reiterate that Appellant was given credit for time served for this time period.

With respect to Appellant’s contention that he was denied representation by

counsel, the record clearly shows that Appellant had court-appointed counsel

from his preliminary hearing through trial and on direct appeal. As Appellant

has not demonstrated that this argument entitles him to collateral relief, we

find this claim to be meritless.

      Third, Appellant argues that the docket numbers on his cases were

intentionally switched. The PCRA court and defense counsel observed that

there was no effort to “switch” Appellant’s docket numbers, but correctly

pointed out that a criminal case has different docket numbers through the

progression through different stages of the court system.          Appellant’s

originating docket number in the district court was MJ-40303-CR-0000159-

2014; when the case was sent to the Court of Common Pleas, it was

assigned the docket number of CP-32-CR-0001271-2014.          This claim does

not entitle Appellant to any relief.




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       The seven remaining claims in Appellant’s PCRA petition are issues

that could have been raised on direct appeal.             Section 9544 provides that

“an issue 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

postconviction proceeding.” 42 Pa.C.S. § 9544(b). As a result, Appellant is

not entitled to collateral review of these waived claims.2

       Accordingly, we agree with counsel and conclude that the issues

Appellant    wishes     to   appeal    are     wholly   frivolous.   Furthermore,   our

independent review of the record confirms counsel's assertion that Appellant

cannot raise any non-frivolous issues in this appeal. Thus, we grant

counsel’s petition to withdraw and affirm the order denying Appellant’s PCRA

petition.

     Order affirmed. Petition to withdraw granted.
Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/5/2017




____________________________________________


2
  Appellant does not claim that his trial counsel was ineffective in failing to
raise the issues in his PCRA petition.



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