J-S53012-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                       Appellee                :
                v.                             :
                                               :
    TAHEEM ARMSTRONG                           :
                                               :
                       Appellant               :
                                               :     No. 2010 EDA 2017


                   Appeal from the PCRA Order June 23, 2017
              in the Court of Common Pleas of Philadelphia County
               Criminal Division at No.: CP-51-CR-0006892-2012


BEFORE:      GANTMAN, P.J., OTT, J., and PLATT*, J.

MEMORANDUM BY PLATT, J.:                            FILED NOVEMBER 29, 2018

       Appellant, Taheem Armstrong, appeals from the order dismissing his

first petition filed pursuant to the Post Conviction Relief Act (PCRA), 42

Pa.C.S.A. §§ 9541-9546. Counsel for Appellant has filed a motion to withdraw

from representation and an Anders1 brief.          We grant counsel’s petition to

withdraw, and affirm the order of the PCRA court.




____________________________________________


1 Counsel filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967),
instead of a Turner/Finley no-merit letter, which is the appropriate filing in
the PCRA context. See Commonwealth v. Turner, 544 A.2d 927 (Pa.
1988); Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en
banc). However, “[b]ecause an Anders brief provides greater protection to a
defendant, this Court may accept an Anders brief in lieu of a Turner/Finley
letter.” Commonwealth v. Widgins, 29 A.3d 816, 817 n.2 (Pa. Super.
2011) (citation omitted).


____________________________________
* Retired Senior Judge assigned to the Superior Court.
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        We take the following factual and procedural history from our review of

the certified record and the PCRA court’s December 15, 2017 opinion. On

June 25, 2014, Appellant pleaded guilty to possession of a firearm by a

prohibited person and carrying a firearm on public streets in Philadelphia. 2 On

July 9, 2014, the trial court sentenced him to an aggregate term of not less

than eleven and one-half nor more than twenty-three months of incarceration

followed by five years’ probation.

        On September 4, 2014, Appellant was arrested for selling crack cocaine.

(See Docket CP-51-CR-0010713-2014). A preliminary hearing was conducted

on September 19, 2014. (See id.). On October 3, 2014, the court held a

violation of probation hearing in this matter, and found that Appellant was in

violation of his probation based on the September 4, 2014 arrest. Appellant

was sentenced to not less than five nor more than ten years of imprisonment.

He did not file a direct appeal.

        On June 26, 2015, Appellant filed a timely pro se PCRA petition.

Appointed counsel filed an amended petition on April 29, 2016. The PCRA

court gave notice of its intent to dismiss on May 9, 2017, and dismissed the

petition on June 23, 2017.         See Pa.R.Crim.P. 907(1).   This timely appeal




____________________________________________


2   18 Pa.C.S.A. §§ 6105(a)(1) and 6108, respectively.




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followed.3    Counsel filed a motion to withdraw from representation and an

Anders brief on April 11, 2018.

              Counsel petitioning to withdraw from PCRA representation
       must proceed . . . under Turner, supra and Finley, supra 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. Walters, 135 A.3d 589, 591 (Pa. Super. 2016) (citation

omitted).

       Upon our review of counsel’s motion to withdraw and the Anders brief,

we conclude that counsel has substantially complied with the procedural

requirements of Turner and Finley. Therefore, we must proceed with our

independent review of this case. See Walters, supra at 591.



____________________________________________


3Appellant filed a statement of matters complained of on appeal on July 16,
2017. The PCRA court entered its opinion on December 15, 2017. See
Pa.R.A.P. 1925.



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        The Anders brief argues that no Gagnon I4 hearing was held, and that

counsel was ineffective for failing to raise the issue at trial and on appeal.

(See Anders Brief, at 10-11). We disagree.

              Our standard of review of the denial of a PCRA petition is
        limited to examining whether the record evidence supports the
        court’s determination and whether the court’s decision is free of
        legal error. This Court grants great deference to the findings of
        the PCRA court if the record contains any support for those
        findings.    If the record supports a post-conviction court’s
        credibility determination, it is binding on the appellate court. A
        PCRA court’s legal conclusions, however, are reviewed de novo.

Commonwealth v. Moriarty, 180 A.3d 1279, 1284 (Pa. Super. 2018)

(citations and quotation marks omitted).

              The United States Supreme Court held in Morrissey v.
        Brewer, 408 U.S. 471 (1972), that a parolee is entitled to
        minimum due process protections because of the possible
        deprivation of liberty inherent in parole revocation proceedings.
        Id. at 482; see also, Gagnon v. Scarpelli, 411 U.S. 778 (1973)
        (extending the Morrissey holding to probation revocation
        proceedings). When a parolee or probationer is detained pending
        a revocation hearing, due process requires a determination at a
        pre-revocation hearing, a Gagnon I hearing, that probable cause
        exists to believe that a violation has been committed. Where a
        finding of probable cause is made, a second, more comprehensive
        hearing, a Gagnon II hearing, is required before a final
        revocation decision can be made.

             This Court described this parole and probation revocation
        process in Commonwealth v. Davis, 336 A.2d 616 (Pa. Super.
        1975), stating:

                    “At the preliminary [Gagnon I] hearing, a
              probationer or parolee is entitled to notice of the
              alleged violations of probation or parole, an
              opportunity to appear and to present evidence in his
              own behalf, a conditional right to confront adverse
____________________________________________


4   Gagnon v. Scarpelli, 411 U.S. 778, 786 (1973).

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            witnesses, an independent decisionmaker, and a
            written report of the hearing.” Gagnon v. Scarpelli,
            supra, at 786. Thus, the Gagnon I hearing is similar
            to the preliminary hearing afforded all offenders
            before a Common Pleas Court trial: the
            Commonwealth must show probable cause that the
            violation was committed.

Commonwealth v. Ferguson, 761 A.2d 613, 617 (Pa. Super. 2000) (citation

formatting provided; some citations omitted).

      In Davis, supra, this Court further explained that Gagnon I hearings

are not required in cases in which “a probationer, who before the probation

revocation hearing, has been arrested and after a preliminary hearing . . . has

been held for indictment and trial in the Court of Common Pleas.” Davis,

supra at 622. The Davis Court explained that in such cases, “[t]he purpose

of [the Gagnon I] hearing will have been served by the preliminary hearing.”

Id. at 622-23; see also Commonwealth v. Del Conte, 419 A.2d 780, 781

n.2 (Pa. Super. 1980) (“When the probation or parole violation is based on

the commission of a crime, a preliminary hearing may substitute for a Gagnon

I hearing.”) (citations omitted).

      Here, after Appellant was arrested, a preliminary hearing was conducted

and Appellant was held for court. The PCRA court found that Appellant “was

given sufficient notice of the alleged violations by virtue of his arrest and

preliminary proceedings on the underlying criminal charges. Therefore, the

purpose of the Gagnon I hearing was clearly served.” (PCRA Ct. Op., at 6).

Thus, it concluded that Appellant’s claim was without merit, and “counsel




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cannot be deemed ineffective for failing to raise a meritless claim.” (Id. at 7)

(citation omitted).

      Upon review, we conclude that the record fully supports the PCRA court’s

conclusion.   Because Appellant’s violation of probation was based on his

commission of a crime, the preliminary hearing conducted in that matter may

substitute for a Gagnon I hearing. See Del Conte, supra at 781 n.2; Davis,

supra at 623. Appellant is not entitled to PCRA relief. Accordingly, we affirm

the order of the PCRA court.

      Petition to withdraw granted. Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/29/18




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