J-S26013-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                   :       IN THE SUPERIOR COURT OF
                                                   :            PENNSYLVANIA
                                                   :
                v.                                 :
                                                   :
                                                   :
    BEAU WILLIAM CHERMER                           :
                                                   :
                       Appellant                   :       No. 1159 WDA 2019

               Appeal from the PCRA Order Entered July 1, 2019
      In the Court of Common Pleas of Beaver County Criminal Division at
                        No(s): CP-04-CR-0001125-2012

BEFORE:      MURRAY, J., McLAUGHLIN, J., and PELLEGRINI, J.*

MEMORANDUM BY MURRAY, J.:                                         FILED JULY 17, 2020

        Beau William Chermer (Appellant) appeals pro se from the order

dismissing his petition filed pursuant to the Post Conviction Relief Act (PCRA),

42 Pa.C.S.A. §§ 9541-9546. For the reasons that follow, we affirm.

        The PCRA court summarized the facts giving rise to Appellant’s

convictions as follows:

           The underlying case involved an April 29, 2012 incident where
        [Appellant] and a co-defendant broke into the [v]ictim’s home,
        brutally assaulted him, robbed him, and then left him seriously
        injured in his home. Twenty-one (21) days after the assault on
        the [v]ictim, he died from the injuries inflicted by [Appellant].

                                      *        *       *

           At trial, the [c]ourt heard testimony from multiple medical
        professionals and lay witnesses regarding the cause of the
        [v]ictim’s death. The testimony provided that after being tortured
        and beaten by [Appellant] and his [c]o-[d]efendant during a home
____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
J-S26013-20


     invasion, the eighty-one (81) year old [v]ictim suffered a
     traumatic brain injury. The [v]ictim was found the day after the
     attack and was rushed to the hospital. Testimony provided that
     the victim suffered from a pre-existing heart condition, requiring
     him to take Coumadin, a blood thinner, to prevent blood clots.
     Due to the severe brain injury, the treating physicians suspended
     the [v]ictim’s normal medication and briefly took him off the
     Coumadin to help treat the brain trauma. Testimony provided by
     Doctor Christina Troevs, the Medical Director of the Trauma
     Intensive Care Unit of Allegheny General Hospital, explained that
     it was customary to stop prescribing Coumadin for thirty (30) days
     following severe brain injuries in patients. The [v]ictim ultimately
     died twenty-one (21) days after the brutal attack.

        The Commonwealth’s Forensic Pathologist, Doctor James
     Smith, determined that the cause of death of the [v]ictim was an
     acute myocardial infarction, as a direct result of the trauma that
     had occurred to the [v]ictim’s brain twenty-one (21) days
     previously. While all parties agreed that the [v]ictim’s pre-
     existing heart condition played a role in his death, the experts
     disagreed that the brain trauma was the underlying cause of the
     [v]ictim’s death. The Commonwealth witnesses and medical
     experts all provided testimony that the brain injury is what placed
     the victim in the hospital and ultimately caused his death. Dr.
     Smith explicitly stated that the brain trauma was the direct cause
     of the [v]ictim’s death. There was no dispute that the Appellant
     caused the [v]ictim’s extensive brain trauma.

PCRA Court Opinion, 9/13/19, at 6, 10-11 (footnote and record citations

omitted).

     As a result of his actions on April 29, 2012, Appellant was charged at

CP-04-CR-0001130-2012 (1130-2012) with 16 crimes, including robbery,

aggravated assault, burglary, unlawful restraint, theft by unlawful taking,

simple assault, false imprisonment, and criminal conspiracy. As a result of

the victim’s death three weeks later, Appellant was charged at CP-04-CR-

0001125-2012 (1125-2012) with second-degree murder.


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       Trial commenced on January 28, 2014.           However, on January 30,

2014, the trial court, at Appellant’s request, declared a mistrial. On February

10, 2014 Appellant filed a motion to bar re-trial and dismiss on grounds of

double jeopardy. Appellant claimed that the prosecutor intentionally caused

the mistrial.   Thereafter, the trial court conducted an evidentiary hearing,

after which it denied Appellant’s motion based on its determination that there

had been no prosecutorial misconduct.

      On August 17, 2015, at Docket Number 1130-2012, Appellant pled

guilty to all 16 charges. Following waiver of his right to a jury trial, Appellant

proceeded to a bench trial on the charge of second-degree murder at Docket

Number 1125-2012; the trial court found Appellant guilty on August 26, 2015.

On October 19, 2015, the trial court sentenced Appellant to life imprisonment

without the possibility of parole at Docket Number 1125-2012, and a

consecutive aggregate term of 19 to 50 years of incarceration at Docket

Number 1130-2012. Appellant filed a timely direct appeal.

      On March 14, 2017, this Court affirmed Appellant’s convictions at both

Docket Numbers 1125-2012 and 1130-2012.               See Commonwealth v.

Chermer, 128 WDA 2016 at 20 (Pa. Super. Mar. 14, 2017) (unpublished

memorandum). Our Supreme Court denied Appellant’s petition for allowance

of appeal.

      Appellant filed a pro se PCRA petition on August 16, 2017 at both Docket

Numbers 1125-2012 and 1130-2012. Appellant raised, inter alia, numerous


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allegations of Trial Counsel ineffectiveness. The court appointed counsel and

on December 10, 2018, PCRA Counsel filed a petition to withdraw and 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 January 15, 2019, Appellant filed a pro se response to PCRA

Counsel’s no-merit letter.

      On May 7, 2019, the PCRA court granted PCRA Counsel permission to

withdraw and issued notice of intent to dismiss Appellant’s petition without a

hearing pursuant to Pennsylvania Rule of Criminal Procedure 907. On May

28, 2019, Appellant filed a pro se response. On July 1, 2019, the PCRA court

entered orders at both Docket Numbers 1125-2012 and 1130-2012 denying

the petition. On July 15, 2019, Appellant filed a timely pro se notice of appeal

from the PCRA court’s order at Docket Number 1125-2012 only.

      Before we consider the issues Appellant raises on appeal, we address

whether we have jurisdiction. See Commonwealth v. Borrero, 692 A.2d

158, 159 (Pa. Super. 1997) (stating that appellate court may sua sponte

examine its jurisdiction). Appellant filed one notice of appeal from the July 1,

2019 order denying his PCRA petition at two criminal docket numbers. Such

practice appears to be prohibited by our Supreme Court’s decision in

Commonwealth v. Walker, 185 A.3d 969 (Pa. 2018). The Supreme Court

held that “prospectively, where a single order resolves issues arising on more

than one docket, separate notices of appeal must be filed for each case.”


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Id. at 971 (emphasis added). The Supreme Court observed that the Official

Note to Rule 341 of the Pennsylvania Rules of Appellate Procedure “provides

a bright-line mandatory instruction to practitioners to file separate notices of

appeal,” and accordingly, determined that “the failure to do so requires

the appellate court to quash the appeal.”           Id. at 976-77 (emphasis

added).

      Arguably, we could quash Appellant’s appeal because he filed one notice

of appeal from the order denying his petition at two docket numbers. See id.

In Commonwealth v. Stansbury, 219 A.3d 157 (Pa. Super. 2019), however,

this Court declined to apply Walker where the trial court improperly “advised”

the defendant that filing a single notice of appeal from an order disposing of

a PCRA petition at two separate docket numbers was sufficient. Id. at 160.

We explained that such misstatements “amount to a breakdown in court

operations such that we may overlook the defective nature of [a]ppellant’s

timely notice of appeal rather than quash pursuant to Walker.” Id. In this

case, like Stansbury, the PCRA court dismissed Appellant’s petition and only

advised him to file a single notice of appeal. See Trial Court Order, 7/1/19.

Therefore, we decline to quash, and proceed to review Appellant’s claims. See

Stansbury, 219 A.3d at 160.

      Appellant raises the 12 issues for review:

      I.     Did the PCRA court err in summarily dismissing Appellant’s
      petition without a hearing because PCRA Counsel failed to raise a
      meritorious claim of Trial Counsel ineffectiveness for failing to
      object to prosecutorial misconduct in the form of the

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     Commonwealth repeatedly referring to Appellant as a “Predator,”
     and the victim as “Prey”?

     II.    Did the PCRA court err in summarily dismissing Appellant’s
     petition without a hearing because PCRA Counsel failed to raise a
     meritorious claim of Trial Counsel ineffectiveness for failing to
     object to prosecutorial misconduct during the Commonwealth’s
     summation by repeatedly intimating to the fact finder of how
     “mad” he was about the particular circumstances of the case?

     III. Did the PCRA court err in summarily dismissing Appellant’s
     petition without a hearing because PCRA Counsel failed to raise a
     meritorious claim of Trial Counsel ineffectiveness for failure to
     object to prosecutorial misconduct in the form of improper
     questioning/cross-examination of the victim’s daughter, Denise
     Heuring, which was irrelevant and wholly prejudicial?

     IV.    Did the PCRA court err in summarily dismissing Appellant’s
     petition without a hearing because PCRA Counsel failed to raise a
     meritorious claim of Trial Counsel ineffectiveness in foregoing
     cross-examination and impeachment of a key prosecution
     witness, Slade Unis?

     V. Did the PCRA court err in summarily dismissing Appellant’s
     petition without a hearing because PCRA Counsel failed to raise a
     meritorious claim of Trial Counsel ineffectiveness for failure to
     consult with, retain and call a cardiologist to testify at Appellant’s
     trial as Trial Counsel was informed by Appellant’s family they
     would fund a cardiologist after the trial court denied funds to hire
     a cardiologist during Appellant’s first trial?

     VI.    Did the PCRA court err in summarily dismissing Appellant’s
     petition without a hearing because PCRA Counsel failed to raise a
     meritorious claim of Trial Counsel ineffectiveness for failing to
     subject the Commonwealth’s case to meaningful adversarial
     testing by failing to object to the lack of notice and subject-matter
     jurisdiction over Appellant and the requisite element malice
     aforethought and Pennsylvania’s unconstitutional criminal
     homicide; murder statutes?

     VII. Did the PCRA court err in summarily dismissing Appellant’s
     petition without a hearing because PCRA Counsel failed to raise a
     meritorious claim of Trial Counsel’s conflict and ineffectiveness
     causing him to withdraw during Appellant’s sentencing hearing

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      which prompted the trial court to appoint Attorney DiMartini, who
      represented Appellant during his first trial, to file post-sentence
      motion and direct appeal?

      VIII. Did the PCRA court err in summarily dismissing Appellant’s
      petition without a hearing because PCRA Counsel failed to raise a
      meritorious claim of the cumulative effect of Trial Counsel’s above
      ineffectiveness issues rising to the level of prejudice?

      [IX.] Did the PCRA court err in summarily dismissing Appellant’s
      petition without a hearing because PCRA Counsel failed to raise a
      meritorious claim of the Commonwealth further engaging in
      prosecutorial misconduct by withholding material impeachment
      evidence and knowingly presenting false and misleading
      testimony pertaining to leniency given to Slade Unis in exchange
      for his cooperation with the investigation and then testifying
      against Appellant at his trial?

      X.     Did the PCRA court err in summarily dismissing Appellant’s
      petition without a hearing because PCRA Counsel failed to raise a
      meritorious claim of the Double Jeopardy Clause pursuant to
      Article I § 10 of Pennsylvania’s Constitution precluding a [second]
      trial given Appellant’s first trial ended in a mistrial due to
      misconduct, and the above described prosecutorial misconduct
      designed to deny Appellant’s constitutional rights to a fair trial and
      due process?

      XI. Did the PCRA court err in summarily dismissing Appellant’s
      petition without a hearing because PCRA Counsel [] rendered
      ineffective assistance of counsel?

      XII. Did the PCRA court err in summarily dismissing Appellant’s
      petition without a hearing because PCRA Counsel[’s]
      Turner/Finley “no merit” letter failed to satisfy the technical
      prerequisites of Turner/Finley[?] Did the PCRA court also err in
      failing to conduct its own independent analysis in its decision to
      summarily dismiss Appellant’s petition without a hearing rather
      than largely adopting PCRA Counsel’s flawed Turner/Finley “no
      merit” letter in violation of Appellant’s rule based rights to
      effective assistance of PCRA counsel; meaningful PCRA process,
      and Appellant’s state-created liberty interest in demonstrating his
      innocence.

Appellant’s Brief at 3-6.

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      In considering Appellant’s issues, we review the denial of PCRA relief by

“examining whether the PCRA court’s findings of fact are supported by the

record, and whether its conclusions of law are free from legal error.”

Commonwealth v. Busanet, 54 A.3d 35, 45 (Pa. 2012).                “Our scope of

review is limited to the findings of the PCRA court and the evidence of record,

viewed in the light most favorable to the party who prevailed in the PCRA

court proceeding.” Id.

      Each of Appellant’s issues raise claims of ineffective assistance of

counsel. With respect to such claims, our Supreme Court stated:

          It is well-settled that counsel is presumed to have been
      effective and that the petitioner bears the burden of proving
      counsel’s alleged ineffectiveness. Commonwealth v. Cooper,
      941 A.2d 655, 664 (Pa. 2007). To overcome this presumption, a
      petitioner must establish that: (1) the underlying substantive
      claim has arguable merit; (2) counsel did not have a reasonable
      basis for his or her act or omission; and (3) the petitioner suffered
      prejudice as a result of counsel’s deficient performance, “that is,
      a reasonable probability that but for counsel’s act or omission, the
      outcome of the proceeding would have been different.” Id. A
      PCRA petitioner must address each of these prongs on appeal.
      See Commonwealth v. Natividad, 938 A.2d 310, 322 (Pa.
      2007) (explaining that “appellants continue to bear the burden of
      pleading and proving each of the Pierce elements on appeal to
      this Court”). A petitioner’s failure to satisfy any prong of this test
      is fatal to the claim. Cooper, 941 A.2d at 664.

Commonwealth v. Wholaver, 177 A.3d 136, 144 (Pa. 2018) (citations

modified).

      At the outset, we note that Appellant’s brief is extraordinarily long (363

pages, with the body of the brief exceeding 150 pages, and more than 100

pages of exhibits); also, Appellant’s argument tends to be rambling and often

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incoherent.     We therefore summarize and analyze each of              his 12

ineffectiveness issues to the best of our ability.

      For his first, second, and third issues, Appellant argues that the PCRA

court erred by dismissing his claims that Trial Counsel was ineffective for

failing to object to alleged instances of prosecutorial misconduct.      First,

Appellant asserts that the prosecutor inappropriately referred to him during

closing arguments as a “predator” and the victim as “prey.” Second, Appellant

contends that the prosecutor improperly stated during closing arguments that

the prosecutor was “mad” about the circumstances of this case.           Third,

Appellant claims the prosecutor committed misconduct by improperly cross-

examining the victim’s daughter. These issues are meritless.

      This Court has explained:

         A reviewing court’s “consideration of claims of prosecutorial
      misconduct is centered on whether the appellant was deprived of
      a fair trial, not deprived of a perfect trial.” Commonwealth v.
      Bronshtein, 691 A.2d 907, 922 (Pa. 1997).

         Comments by a prosecutor do not constitute reversible error
         unless the unavoidable effect of such comments would be
         to prejudice the [factfinder], forming in [his] mind a fixed
         bias and hostility toward the defendant such that they could
         not weigh the evidence objectively and render a true
         verdict.

      Id. at 917. Even if a prosecutor’s statement is improper, an
      appellant still may not be entitled to relief. Id. at 922. In
      addition, “it has long been held that trial judges, sitting as
      factfinders, are presumed to ignore prejudicial information
      in reaching a verdict.” Commonwealth v. Irwin, 579 A.2d
      955, 957 (Pa. Super. 1990).




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Commonwealth v. Thomas, 783 A.2d 328, 335 (Pa. Super. 2001) (citations

modified; emphasis added).

      Here, other than general assertions, Appellant’s arguments lack support

as to how the alleged instances of prosecutorial misconduct resulted in

prejudice.    For example, Appellant states that “the prosecutor elicited

testimony from the victim’s daughter that was irrelevant . . . and prejudicial”

when “the only undisputed fact at issue was the causation of the victim’s

death.” Appellant’s Brief at 19.

      As noted above, to the extent a prosecutor’s remarks or questioning

were inappropriate, we must presume that the trial court, sitting as factfinder,

was capable of disregarding any prejudicial remarks in reaching its verdict.

See Thomas, supra. The PCRA, recognizing that Appellant was convicted

after a non-jury trial, correctly stated that the “law is clear that trial judges

are presumed to be able to ignore any potential prejudicial comments.” PCRA

Court Opinion, 9/13/19, at 17. Because Appellant cannot establish that he

was prejudiced by Trial Counsel’s failure to object to alleged instances of

prosecutorial misconduct, his first, second, and third issues fail.         See

Wholaver, 177 A.3d at 144.

      For his fourth and ninth issues, Appellant argues that the PCRA court

erred in dismissing his claim that Trial Counsel was ineffective for not cross-

examining and impeaching the testimony of Commonwealth witness, Slade

Unis (Unis), who was an acquaintance of Appellant, having known him since


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he was 15 years old and having worked with him on occasion.            Mr. Unis

testified that Appellant told him that Appellant knew where “we could get

$100,000, maybe $200,000” and the victim had a safe “with $200,000 in it.”

PCRA Court Opinion, 9/13/19, at 12. Appellant asserts that Trial Counsel was

ineffective for failing to cross-examine Mr. Unis regarding any deals for

leniency Unis made with the Commonwealth relating to his own criminal

proceedings. Appellant asserts that this information was material to the case.

      The PCRA court stated that counsel for Appellant’s co-defendant

“thoroughly cross-examined” Mr. Unis regarding the benefits he received for

testifying, which Appellant concedes. See PCRA Court Opinion, 9/13/19, at

18; Appellant’s Brief at 23-28. “The threshold inquiry in ineffectiveness claims

is whether the issue/argument/tactic which counsel has foregone and which

forms the basis for the assertion of ineffectiveness is of arguable merit[.]

Counsel cannot be found ineffective for failing to pursue a baseless or

meritless claim.” Commonwealth v. Adams-Smith, 209 A.3d 1011, 1019

(Pa. Super. 2019) (citation omitted). Appellant faults Trial Counsel for his

decision not to cross-examine Mr. Unis; however such cross-examination

would have been duplicative of the cross-examination by counsel for

Appellant’s co-defendant. Thus, Appellant’s ineffective assistance of counsel

claims relating to Mr. Unis are baseless and Appellant’s fourth and ninth issues

do not merit relief. See Adams-Smith, 209 A.3d at 1019.




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      For his fifth issue, Appellant argues that the PCRA court erred in

dismissing his claim that Trial Counsel was ineffective for failing to retain a

cardiologist to testify about the victim’s cause of death. When raising a claim

of ineffective assistance of counsel for the failure to call a witness at trial, a

petitioner must establish:

      (1) the witness existed; (2) the witness was available to testify
      for the defense; (3) counsel knew of, or should have known of,
      the existence of the witness; (4) the witness was willing to testify
      for the defense; and (5) the absence of the testimony of the
      witness was so prejudicial as to have denied the defendant a fair
      trial.

Commonwealth v. Sneed, 45 A.3d 1096, 1108-09 (Pa. 2012).                       To

demonstrate prejudice, a petitioner “must show how the uncalled witnesses’

testimony would have been beneficial under the circumstances of the case.”

Id. at 1109 (quotations and citations omitted). “Thus, counsel will not be

found ineffective for failing to call a witness unless the petitioner can show

that the witness’s testimony would have been helpful to the defense.” Id.

      Appellant has failed to establish any of the five factors set forth in

Sneed.    Most importantly, Appellant does not explain how he would have

benefitted from the testimony of a cardiologist. Notably, Appellant likewise

address the necessity of cardiologist testimony when Dr. Cyril Wecht, a

forensic pathologist, testified for the defense that the victim’s injuries from

the assault “bore no relationship whatsoever” to the victim’s cause of death.

N.T., 8/25/15, at 20.        Thus, Appellant’s fifth issue lacks merit.      See

Wholaver, 177 A.3d at 144.

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      For his sixth issue, Appellant argues that the PCRA court erred in

dismissing his claim that Trial Counsel was ineffective for failing to challenge

the constitutionality of Pennsylvania’s murder statute, 18 Pa.C.S.A. § 2502,

and for failing to object to the trial court’s lack of subject matter jurisdiction.

This issue is waived.

      With respect to Appellant’s claim that Trial Counsel was ineffective for

failing to challenge the constitutionality of Pennsylvania’s murder statute, “a

statute will not be found unconstitutional unless it clearly, palpably, and plainly

violates the Constitution. If there is any doubt as to whether a challenger has

met this high burden, then we will resolve that doubt in favor of the statute’s

constitutionality.” Commonwealth v. Thompson, 106 A.3d 742, 763 (Pa.

Super. 2014).

      Appellant’s argument is mostly nonsensical, and includes no citation to

pertinent authority.    Moreover, Appellant fails to reference any basis upon

which we could conclude that the statute is unconstitutional.           Similarly,

Appellant fails to develop any argument as to how the trial court lacked subject

matter jurisdiction. Our Supreme Court has long held that it is not the courts’

obligation to formulate arguments on behalf of an appellant.                  See

Commonwealth v. Wright, 961 A.2d 119, 135 (Pa. 2008).                   Therefore,

Appellant has waived his claim that Trial Counsel was ineffective for failing to

challenge the constitutionality of the murder statute and for failing to object

to the trial court’s lack of subject matter jurisdiction. See Commonwealth


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v. Johnson, 985 A.2d 915, 924 (Pa. 2009) (“where an appellate brief fails to

provide any discussion of a claim with citation to relevant authority or fails to

develop the issue in any other meaningful fashion capable of review, that claim

is waived”); Commonwealth v. Clayton, 816 A.2d 217, 221 (Pa. 2002) (“[I]t

is a well settled principle of appellate jurisprudence that undeveloped claims

are waived and unreviewable on appeal.”); see also Pa.R.A.P. 2119(a)

(requiring that each argument must be “followed by such discussion and

citation of authorities as are deemed pertinent”).

      For his seventh issue, Appellant argues that the PCRA court erred in

dismissing his claim that Trial Counsel conceded his ineffectiveness at

Appellant’s sentencing hearing. Appellant asserts that Trial Counsel likewise

admitted to having a conflict of interest in representing Appellant such that

Appellant is entitled to a new trial.

      At Appellant’s sentencing hearing, after the trial court sentenced

Appellant, Trial Counsel orally requested permission to withdraw from the

case. N.T., 10/19/15, at 33-34. Trial Counsel sought to withdraw because he

correctly   anticipated   that    Appellant      would   assail   Trial   Counsel’s

representation. See id. At no point did Trial Counsel concede that he was

ineffective, nor did Trial Counsel express that he had a conflict of interest in

representing Appellant.      See id.      Again, the record does not support

Appellant’s ineffectiveness claim. See Wholaver, 177 A.3d at 144.




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      For his eighth issue, Appellant argues that the PCRA court erred in

dismissing his claim that the “cumulative effect” of Trial Counsel’s

ineffectiveness resulted in prejudice and warranted a new trial. Appellant’s

Brief at 54. Our Supreme Court “has repeatedly emphasized [that] no number

of failed claims may collectively warrant relief i[f] they fail to do so

individually.”   Commonwealth v. Sepulveda, 55 A.3d 1108, 1150 (Pa.

2012).    The Supreme Court recognized, however, that “where multiple

instances of deficient performance are found, the cumulative effect can result

in prejudice.” Id. (citations omitted). As discussed above, Appellant has not

demonstrated that any of his individual claims of ineffective assistance of

counsel have     merit.    Consequently,      Appellant’s   claim   of   cumulative

ineffectiveness fails.

      For his tenth issue, Appellant argues that PCRA Counsel was ineffective

for failing to raise a claim that Appellant’s second trial should have been barred

on double jeopardy grounds because the mistrial in his first trial was the result

of prosecutorial misconduct. Because Appellant previously litigated the double

jeopardy issue on direct appeal, it is not a cognizable claim for relief on

collateral review:

      A claim that has been previously litigated is not cognizable for
      collateral relief. 42 Pa.C.S.A. § 9544(a)(2). The PCRA defines a
      matter as having been previously litigated when “the highest
      appellate court in which the petitioner could have had review as a
      matter of right has ruled on the merits of the issue.” Id. “[T]he
      fact that a petitioner presents a new argument or advances a new
      theory in support of a previously litigated issue will not circumvent


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      the previous litigation bar.” Commonwealth v. Burkett, 5 A.3d
      1260, 1270 (Pa.Super.2010)[.]

Commonwealth v. Roane, 142 A.3d 79, 94 (Pa. Super. 2016).

      Appellant asks us, in the context of his ineffective assistance of counsel

claim, to revisit whether the Commonwealth engaged in prosecutorial

misconduct by intentionally causing a mistrial. This Court already rejected

this claim.   See Chermer, 128 WDA 2016 at 8.          As we already rejected

Appellant’s double jeopardy issue on the merits, and our Court is the highest

appellate court in which Appellant could appeal the issue as of right, this issue

was previously litigated and is not cognizable under the PCRA. See Roane,

142 A.3d at 94. Appellant’s tenth issue is unavailing.

      Finally, for his eleventh and twelfth issues, Appellant appears to argue

that the PCRA court erred in permitting PCRA Counsel to withdraw because

she failed to comply with the technical mandates of Turner/Finley, and was

ineffective for filing a no-merit letter and declining to raise any meritorious

issues on his behalf. Both issues lack merit.

      Pursuant to Turner/Finley, an “[i]ndependent review of the record by

competent counsel is required before withdrawal [on collateral review] is

permitted.” Commonwealth v. Pitts, 981 A.2d 875, 876 n.1 (Pa. 2009). In

Pitts, our Supreme Court explained that independent review requires proof

of:

      1. A “no merit” letter by PC[R]A counsel detailing the nature and
         extent of his review;


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      2. The “no merit” letter by PC[R]A counsel listing each issue the
         petitioner wished to have reviewed;

      3. The PC[R]A counsel’s “explanation”, in the “no merit” letter, of
         why the petitioner’s issues were meritless;

      4. The PC[R]A court conducting its own independent review of the
         record; and

      5. The PC[R]A court agreeing with counsel that the petition was
         meritless.

Id. (citation and brackets omitted).

      Additionally:

      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.

      If counsel fails to satisfy the foregoing technical prerequisites of
      Turner/Finley, the court will not reach the merits of the
      underlying claims but, rather, will merely deny counsel’s request
      to withdraw. Upon doing so, the court will then take appropriate
      steps, such as directing counsel to file a proper Turner/Finley
      request or an advocate’s brief.

      However, where counsel submits a petition and no-merit letter
      that do satisfy the technical demands of Turner/Finley, the
      [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. Wrecks, 931 A.2d 717, 721 (Pa. Super. 2007) (citations

omitted).

      Here, PCRA Counsel filed a “no-merit” letter and petition to withdraw

which stated the nature and extent of her review, listed the issues for which

Appellant sought review, explained why and how the issues lacked merit, and


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requested permission to withdraw.      See Turner/Finley Letter, 12/10/18;

Motion to Withdraw as Counsel, 12/10/18. PCRA Counsel sent Appellant a

copy of the “no-merit” letter, a copy of the petition to withdraw, and a

statement advising Appellant of the right to proceed pro se or by privately

retained counsel.   See id.    Thus, the record reflects that PCRA Counsel

submitted a petition to withdraw and “no-merit” letter satisfying the demands

of Turner/Finley. Appellant’s claim that PCRA Counsel failed to comply with

the Turner/Finley is meritless.

     Lastly with respect to Appellant’s claim of PCRA Counsel ineffectiveness,

we address layered ineffective claims as follows:

     Where the defendant asserts a layered ineffectiveness claim[,] he
     must properly argue each prong of the three-prong ineffectiveness
     test for each separate attorney.

     Layered claims of ineffectiveness are not wholly distinct from the
     underlying claims[,] because proof of the underlying claim is an
     essential element of the derivative ineffectiveness claim[.] In
     determining a layered claim of ineffectiveness, the critical inquiry
     is whether the first attorney that the defendant asserts was
     ineffective did, in fact, render ineffective assistance of counsel. If
     that attorney was effective, then subsequent counsel cannot be
     deemed ineffective for failing to raise the underlying issue.

Commonwealth v. Rykard, 55 A.3d 1177, 1190 (Pa. Super. 2012) (citations

omitted).

     As we have reiterated throughout this memorandum, there is no support

in the record for Appellant’s claims that Trial Counsel was ineffective.

Consequently, we are unpersuaded by Appellant’s claim of PCRA Counsel’s

ineffectiveness. See id. Accordingly, because we find no merit to Appellant’s

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issues, we conclude that the PCRA court did not err in dismissing Appellant’s

petition.

      Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/17/2020




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