J. S25038/17


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   :     IN THE SUPERIOR COURT OF
                                               :           PENNSYLVANIA
                     v.                        :
                                               :
TYRONE CARTER,                                 :          No. 2715 EDA 2016
                                               :
                             Appellant         :


                  Appeal from the PCRA Order, July 20, 2016,
                in the Court of Common Pleas of Lehigh County
               Criminal Division at No. CP-39-CR-0000879-2015


BEFORE: BENDER, P.J.E., RANSOM, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                         FILED JUNE 27, 2017

      Tyrone Carter appeals from the July 20, 2016 order that granted his

request to withdraw his petition filed pursuant to the Post-Conviction Relief

Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546.              Contemporaneously with this

appeal, counsel has requested leave to withdraw in accordance with

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

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

After careful review, we grant counsel leave to withdraw and affirm the order

of the PCRA court.

      The PCRA court set forth the relevant facts and procedural history of

this case as follows.

                 On June 17, 2015, [appellant] entered a plea
            of guilty to Person Not to Possess a Firearm,
            18 Pa.C.S.A. § 6105(a)(1). In exchange for the
J. S25038/17


            plea, the Commonwealth agreed to bind the [trial
            c]ourt to a five (5) to ten (10) year sentence, which
            was the bottom of the standard range of the
            sentencing     guidelines.       In    addition,   the
            Commonwealth agreed not to pursue the other
            counts of the Criminal Information. On the same
            date, th[e trial c]ourt, pursuant to the plea
            agreement, sentenced [appellant] to a term of
            imprisonment of not less than five (5) years nor
            more than ten (10) years in a state correctional
            institution. Then, on May 12, 2016, [appellant] filed
            a [pro se PCRA petition].          Th[e PCRA c]ourt
            appointed Attorney Robert Long [(hereinafter,
            “counsel”)] to represent [appellant] in that matter on
            [May 16, 2016].

PCRA court opinion, 8/10/16 at 1-2.

     On July 12, 2016, counsel subsequently filed a “no-merit” letter and a

petition to withdraw, in accordance with Turner/Finley.        Thereafter, on

July 20, 2016, the PCRA court conducted an evidentiary hearing on

appellant’s petition. At this hearing, appellant indicated to the PCRA court,

following his consultation with counsel, that he wanted to withdraw his PCRA

petition. (See notes of testimony, 7/20/16 at 4.) The PCRA court entered

an order granting appellant’s request to withdraw his PCRA petition that

same day.    On August 8, 2016, appellant filed a timely pro se notice of

appeal.1 Because appellant withdrew his PCRA petition, the PCRA court did

not rule on counsel’s Turner/Finley petition. Subsequently, counsel filed a



1
  The record reflects that the PCRA court did not order appellant to file a
concise statement of errors complained on appeal, pursuant to
Pa.R.A.P. 1925(b). Nonetheless, on August 10, 2016, the PCRA court filed a
Rule 1925(a) opinion.


                                      -2-
J. S25038/17


second “no-merit” letter and a petition to withdraw on November 21, 2016.

        On appeal, counsel raises the following issues on appellant’s behalf:

              A.    WAS TRIAL COUNSEL INEFFECTIVE FOR NOT
                    CONFRONTING OR CROSS EXAMINING HIS
                    CO-DEFENDANTS[?]

              B.    WAS THERE SUFFICIENT EVIDENCE TO PROVE
                    GUILT BEYOND A REASONABLE DOUBT[?]

              C.    DID THE COURT             IMPOSE   AN    ILLEGAL
                    SENTENCE[?]

Turner/Finley brief at 4.

        Prior to considering appellant’s arguments, we must address counsel’s

“no-merit” letter and petition to withdraw from representation.              See

Commonwealth v. Daniels, 947 A.2d 795, 798 (Pa.Super. 2008).                    In

Commonwealth v. Muzzy, 141 A.3d 509 (Pa.Super. 2016), a panel of this

court recently reiterated the procedure to be observed when PCRA counsel

files   a   “no-merit”   letter   and   seeks   permission   to   withdraw   from

representation:

                    Counsel petitioning to withdraw from PCRA
              representation     must      proceed    ...     under
              [Turner/Finley] 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


                                        -3-
J. S25038/17


                 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.

Id. at 510-511 (some bracketed internal citations amended; case citations

omitted).

     Herein, we find that counsel’s filing with this court complied with the

requirements of Turner/Finley.      Specifically, counsel’s “no-merit” letter

detailed the nature and extent of counsel’s review.         In preparing the

“no-merit” letter, counsel addressed the claims appellant raised in his PCRA

petition and determined that the issues lack merit.       Thereafter, counsel

provided a discussion of each of appellant’s claims, explaining why each

issue is without merit.   Finally, the record reflects that counsel served

appellant a copy of the no-merit letter and advised appellant that, if he was

permitted to withdraw, appellant had the right to proceed pro se or with

privately-retained counsel. Thus, we find that counsel’s request for leave to

withdraw from representation satisfied the requirements of Turner/Finley.

See Commonwealth v. Karanicolas, 836 A.2d 940, 947 (Pa.Super. 2003)



                                    -4-
J. S25038/17


(stating that substantial compliance with requirements will satisfy the

Turner/Finley criteria).

       Appellant contends that counsel was ineffective for not confronting or

cross-examining his co-defendants, the evidence was insufficient to sustain

his conviction for unlawful possession of a firearm, and that his sentence is

illegal.   (Turner/Finley brief at 8-10.)    Upon review, we conclude that

appellant has waived the claims he now presents on appeal.

       Instantly, the record reflects that appellant knowingly and voluntarily

withdrew his pro se PCRA petition at the July 20, 2016 evidentiary hearing,

following consultation with counsel. (Notes of testimony, 7/20/16 at 2-4.)

Accordingly, the PCRA court did not have a chance to review or rule on any

of these claims, and appellant is precluded from raising these issues for the

first time on appeal. See Pa.R.A.P. 302(a) (“[i]ssues not raised in the lower

court are waived and cannot be raised for the first time on appeal[]”).

       Based on the foregoing, we affirm the July 20, 2016 order of the PCRA

court granting appellant’s request to withdraw his PCRA petition and grant

counsel’s petition for leave to withdraw as counsel.

       Order affirmed. Petition for leave to withdraw as counsel granted.




                                     -5-
J. S25038/17



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 6/27/2017




                          -6-
