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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA             :    IN THE SUPERIOR COURT OF
                                         :          PENNSYLVANIA
                    v.                   :
                                         :
RONALD BETHEA,                           :         No. 2099 EDA 2014
                                         :
                         Appellant       :


                   Appeal from the PCRA Order, June 12, 2014,
              in the Court of Common Pleas of Philadelphia County
                Criminal Division at No. CP-51-CR-0305131-2005


BEFORE: FORD ELLIOTT, P.J.E., STABILE AND MUSMANNO, JJ.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                    FILED JULY 11, 2016

        Ronald Bethea appeals from the order of June 12, 2014, dismissing his

first petition for post-conviction collateral relief filed pursuant to the Post

Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546.         Appointed counsel,

Craig Mitchell Cooley, Esq., has filed a petition to withdraw.      We grant

Attorney Cooley permission to withdraw and affirm the order dismissing

appellant’s PCRA petition.

        On September 19, 2007, following a jury trial, appellant was found

guilty of conspiracy to commit third-degree murder in connection with the

shooting death of Stephen Brown.        The underlying facts, which are not

germane to the instant appeal, are set forth in this court’s memorandum

affirming the judgment of sentence on direct appeal at pages two through

five.    Commonwealth v. Bethea, No. 234 EDA 2008, unpublished
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memorandum at 2-5 (Pa.Super. filed January 20, 2010). On November 26,

2007, appellant was sentenced to 20 to 40 years’ imprisonment. This court

affirmed the judgment of sentence on January 20, 2010.                  Id.    On

September 7, 2010, our supreme court denied appellant’s petition for

allowance    of   appeal.      Commonwealth      v.   Bethea,    71    EAL    2010

(per curiam).

        On July 15, 2011, appellant filed a timely counseled PCRA petition,

alleging that conspiracy to commit third-degree murder is not a cognizable

crime in Pennsylvania, and that trial counsel was ineffective for failing to

raise this issue in the trial court. (Docket #12.) The Commonwealth filed a

motion to dismiss, and appellant filed a response. On January 16, 2014, the

PCRA court issued a Rule 9071 notice of intent to dismiss the petition without

a hearing. On June 10, 2014, PCRA counsel, Norris E. Gelman, Esq., filed a

motion to withdraw.         (Docket #16.)   Two days later, on June 12, 2014,

appellant’s PCRA petition was dismissed.       (Docket #17.)    A timely pro se

notice of appeal was filed on July 11, 2014.       (Docket #18.)      On July 31,

2014, appellant was directed to file a concise statement of errors complained

of on appeal pursuant to Pa.R.A.P. 1925(b) within 21 days (August 21,




1
    Pa.R.Crim.P. 907.


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2014). (Docket #19.)2 Appellant complied on August 20, 2014, by filing a

pro se Rule 1925(b) statement, raising the same issues raised in his PCRA

petition.     (Docket   #20.)        Subsequently,    on   September     16,   2014,

Attorney Gelman filed an application to withdraw in this court, which was

granted on October 3, 2014.          This court remanded the case to the PCRA

court to determine whether appellant was eligible for court-appointed

counsel and, if so, to appoint counsel for appellant in connection with this

appeal.     On November 24, 2014, the PCRA court issued a Rule 1925(a)

opinion.    Current counsel, Attorney Cooley, was appointed to represent

appellant for appeal purposes on March 19, 2015.

      Initially, we note that Attorney Cooley has filed an Anders brief rather

than a Turner/Finley no-merit letter. Anders v. California, 386 U.S. 738

(1967);     Commonwealth        v.    Turner,   544    A.2d   927      (Pa.    1988);

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

an appeal from the denial of a PCRA petition, a Turner/Finley letter is the

appropriate filing. However, we may accept an Anders brief instead. See

Commonwealth v. Fusselman, 866 A.2d 1109, 1111 n.3 (Pa.Super.

2004), appeal denied, 882 A.2d 477 (Pa. 2005) (“[B]ecause an Anders


2
  We note that Attorney Gelman was still counsel of record and had not been
given permission to withdraw. See Commonwealth v. White, 871 A.2d
1291, 1294 (Pa.Super. 2005) (“once counsel has entered an appearance on
a defendant’s behalf he is obligated to continue representation until the case
is concluded or he is granted leave by the court to withdraw his
appearance”), quoting Commonwealth v. Quail, 729 A.2d 571, 573
(Pa.Super. 1999).


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brief provides greater protection to the defendant, we may accept an

Anders        brief   in     lieu     of   a   Turner/Finley         letter.”).       See   also

Commonwealth               v.    Santiago,      978   A.2d     349     (Pa.    2009)    (guiding

Pennsylvania courts’ application of Anders).                   Despite counsel’s error, we

find   that     he     has       complied      substantially    with     the      Turner/Finley

requirements.         Hence, we overlook his procedural misstep.                     In addition,

Attorney Cooley has attached a copy of the letter to appellant advising him

of counsel’s intention to withdraw and of his rights going forward.

(“Anders/No-Merits Brief,” Exhibit 12.)                See Commonwealth v. Friend,

896    A.2d       607,          615    (Pa.Super.     2006)      (“PCRA           counsel   must

contemporaneously forward to the petitioner a copy of the application to

withdraw, which must include (i) a copy of both the ‘no-merit’ letter, and

(ii) a statement advising the PCRA petitioner that, in the event the [] court

grants the application of counsel to withdraw, the petitioner has the right to

proceed pro se, or with the assistance of privately retained counsel”)

(footnote omitted).             Appellant has not responded to Attorney Cooley’s

petition to withdraw.

               This Court’s 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. Halley, 582 Pa. 164, 870 A.2d
               795, 799 n. 2 (2005). The PCRA court’s findings will
               not be disturbed unless there is no support for the
               findings in the certified record. Commonwealth v.
               Carr, 768 A.2d 1164, 1166 (Pa.Super.2001).



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Commonwealth v. Turetsky, 925 A.2d 876, 879 (Pa.Super. 2007),

appeal denied, 940 A.2d 365 (Pa. 2007).

          [T]he right to an evidentiary hearing on a
          post-conviction     petition   is    not    absolute.
          Commonwealth v. Jordan, 772 A.2d 1011, 1014
          (Pa.Super.2001).     It is within the PCRA court’s
          discretion to decline to hold a hearing if the
          petitioner’s claim is patently frivolous and has no
          support either in the record or other evidence. Id.
          It is the responsibility of the reviewing court on
          appeal to examine each issue raised in the PCRA
          petition in light of the record certified before it in
          order to determine if the PCRA court erred in its
          determination that there were no genuine issues of
          material fact in controversy and in denying relief
          without     conducting    an   evidentiary   hearing.
          Commonwealth v. Hardcastle, 549 Pa. 450, 454,
          701 A.2d 541, 542-543 (1997).

Id. at 882, quoting Commonwealth v. Khalifah, 852 A.2d 1238,

1239-1240 (Pa.Super. 2004).

          [W]e begin with the presumption that counsel was
          effective.      A claimant establishes ineffective
          assistance of counsel when he demonstrates that
          [1] the underlying claim is of arguable merit;
          [2] that counsel’s action or inaction was not
          grounded on any reasonable basis designed to
          effectuate the appellant’s interest; and finally,
          [3] that counsel’s action or inaction was prejudicial
          to the client. For an action (or inaction) by counsel
          to be considered prejudicial to the client, there must
          be a reasonable probability that the outcome of the
          proceedings would have been different. All three
          prongs of this test must be satisfied. If an appellant
          fails to meet even one prong of the test, his
          conviction will not be reversed on the basis of
          ineffective assistance of counsel.




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Commonwealth v. O’Bidos, 849 A.2d 243, 249 (Pa.Super. 2004), appeal

denied, 860 A.2d 123 (Pa. 2004) (citations and internal quotation marks

omitted).

     Relying on Commonwealth v. Clinger, 833 A.2d 792 (Pa.Super.

2003), appellant contends that criminal conspiracy to commit third-degree

murder is not a cognizable offense in Pennsylvania.         In Clinger, the

defendant and his brother severely beat the victim, who was rendered

unconscious and was lucky to have survived.     Id. at 793.   The defendant

pled guilty to criminal conspiracy to commit third-degree murder.          A

pre-sentence motion to withdraw the plea was denied, and the defendant

was sentenced to 20 to 40 years’ imprisonment. On appeal, this court held

that there was no factual basis for the plea where it was impossible under

the law to commit the crime of conspiracy to commit murder in the third

degree:

            In the present case, since the crime of third degree
            murder was not accomplished, appellant could only
            be guilty of conspiracy to commit a crime if he
            intended that crime to be accomplished.        Logic
            dictates, however, and this Court has recognized,
            that it is impossible for one to intend to commit an
            unintentional act.

Id. at 796 (citation omitted). Therefore, this court in Clinger held that the

defendant’s motion to withdraw his guilty plea should have been granted.

Id. at 796-797.




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      As the PCRA court recognized, however, Clinger was abrogated by our

supreme court in Commonwealth v. Fisher, 80 A.3d 1186 (Pa. 2013),

which held that the absence of intent to kill does not preclude a defendant

from being convicted of conspiracy to commit third-degree murder: “The act

sufficient for third degree is still a purposeful one, committed with malice,

which results in death--clearly, one can conspire to such an intentional act.”

Id. at 1191. Therefore, it appears that Clinger is no longer good law. In

addition, Clinger is factually distinguishable from the instant case, where in

Clinger, the victim survived the incident.           In the case sub judice, the

victim died as the result of multiple gunshot wounds.              As such, the

underlying issue, that appellant could not be convicted of conspiracy to

commit third-degree murder, lacks arguable merit, and trial counsel cannot

be held ineffective for failing to have raised it.

      Furthermore, even though Clinger was still good law at the time of

appellant’s trial in 2007, Clinger was essentially an outlier, and there was a

substantial body of case law holding that a defendant can be convicted of

conspiracy to commit murder in the third degree. See Fisher, 80 A.3d at

1191-1193 (“Our review of Pennsylvania case law regarding conspiracy to

commit third degree murder reveals convictions for this crime have long

been recognized as valid.”), citing, e.g., Commonwealth v. Mobley, 359

A.2d 367 (Pa. 1976); Commonwealth v. Wanamaker, 444 A.2d 1176,

1178 (Pa.Super. 1982); Commonwealth v. La, 640 A.2d 1336, 1345-1346



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(Pa.Super. 1994). Indeed, the Fisher court characterized Clinger’s holding

that conspiracy to commit third-degree murder is a legal impossibility as an

abrupt change in course.     Fisher, 80 A.3d at 1193.      As the PCRA court

observes, Clinger departed from established precedent, and even if trial

counsel had raised the issue, it most likely would have failed. (PCRA court

opinion, 11/24/14 at 4.) Therefore, appellant cannot establish that he was

prejudiced by trial counsel’s alleged omission in this regard.

      Having conducted an independent review of the entire record, this

court is satisfied that the issues raised in appellant’s petition are meritless

and that the PCRA court did not err in denying appellant’s petition.

Accordingly, we will grant Attorney Cooley’s petition to withdraw and affirm

the order denying appellant’s PCRA petition.

      Petition to withdraw granted. Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 7/11/2016




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