J-S16027-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA              :    IN THE SUPERIOR COURT OF
                                           :         PENNSYLVANIA
                                           :
              v.                           :
                                           :
                                           :
 BRADLEY ERCIL JAE BURGESS                 :
                                           :
                     Appellant             :    No. 982 MDA 2018

              Appeal from the PCRA Order Entered May 29, 2018
     In the Court of Common Pleas of Luzerne County Criminal Division at
                       No(s): CP-40-CR-0003452-2014

BEFORE: OTT, J., MURRAY, J., and MUSMANNO, J.

MEMORANDUM BY MURRAY, J.:                              FILED APRIL 09, 2019

      Bradley Ercil Jae Burgess (Appellant) appeals from the order denying his

petition filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A.

§§ 9541-9546.      In this appeal, Appellant’s court-appointed counsel (PCRA

Counsel) filed a petition to withdraw as counsel and a 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).

Because we conclude that PCRA Counsel fulfilled the procedural requirements

of Turner/Finley, and this appeal is without merit, we affirm the PCRA court’s

order denying Appellant's PCRA petition and grant PCRA Counsel’s petition to

withdraw.

      A prior panel of this Court summarized the facts and procedural history

of this case as follows:
J-S16027-19


         On November 19, 2014, the Luzerne County District Attorney
     filed a Criminal Information charging [Appellant] with possession
     of heroin with intent to deliver and DUI stemming from an August
     20, 2014 traffic stop of a vehicle driven by [Appellant].
     [Appellant] pleaded not guilty and a jury trial was scheduled. On
     January 9, 2015, represented by the Public Defender’s Office,
     [Appellant] filed a counseled pre-trial motion to suppress
     statements made by [Appellant] and physical evidence seized.

         A suppression hearing was held on July 28, 2015. The
     Commonwealth presented the testimony of Wilkes-Barre Police
     Officer David Balchun, and introduced [Appellant’s] driving record
     and two lab reports into evidence. Officer Balchun testified that
     on August 20, 2014, he observed a vehicle make a right hand turn
     from North Empire Court Street onto Coal Street without using its
     turn signal. Additionally, Officer Balchun testified that he smelled
     a strong odor of marijuana smoke coming from the vehicle.
     Officer Balchun initiated a traffic stop of the vehicle, and when he
     approached the driver’s side door the odor of marijuana got
     stronger. Officer Balchun observed [Appellant] in the driver’s
     seat, and asked him for his license and registration information,
     which [Appellant] provided.           Officer Balchun then asked
     [Appellant] if he had any marijuana in the vehicle because he
     could smell a strong order of marijuana coming from it. Officer
     Balchun testified that [Appellant] responded that he had a little
     marijuana in his vehicle and then handed the officer a cigar
     wrapper with a small baggie of marijuana inside it. After being
     handed the marijuana, Officer Balchun advised [Appellant] that he
     was going to search [Appellant’s] vehicle for any other narcotics.
     Before the search could be conducted, however, [Appellant] fled
     in the vehicle. Officer Balchun pursued [Appellant] with his lights
     and siren activated, but [Appellant] refused to stop and instead
     ran several stop signs at a high rate of speed, travelled the wrong
     way down a one way street, and nearly hit a pedestrian. While
     pursuing [Appellant], Officer Balchun observed him throw several
     objects out the vehicle’s window. [Appellant] was eventually
     apprehended and placed into custody after he pulled his vehicle
     into a driveway and jumped out while the vehicle was still rolling.
     When Officer Balchun returned to the area where he had observed
     [Appellant] throw the items out of the vehicle, the officer found
     bundles of packaged heroin, totaling 250 packets. Based on
     [Appellant’s] careless and reckless driving, and a statement he
     made after being taken into custody that he had smoked
     marijuana prior to being pulled over by Officer Balchun,

                                    -2-
J-S16027-19


        [Appellant] was taken for blood work. He tested positive for
        marijuana. Officer Balchun also testified that as the result of his
        check on [Appellant’s] driver’s license, he learned that the license
        was suspended. At the conclusion of the suppression hearing, the
        [c]ourt denied [Appellant’s] suppression motion.

           An Amended Information was subsequently filed setting forth
        twenty-nine (29) counts against [Appellant] relating to the events
        of August 20, 2014. Following a September 16, 2015 jury trial,
        [Appellant] was found guilty of twenty-seven (27) of the twenty-
        nine (29) counts. A Pre-Sentence Investigation (PSI) was ordered
        to be completed by the Luzerne County Adult Probation and Parole
        Department, and sentencing was scheduled for November 23,
        2015. [Appellant] failed to appear on that date, however, and
        sentencing was continued until January 22, 2016.

           Following review and consideration of the recommendations of
        counsel and review of the PSI, [the trial court] sentenced
        [Appellant] to an aggregate term of incarceration of seven and
        one half (7½) to fifteen (15) years in a state correctional
        institution.

Commonwealth v. Burgess, 366 MDA 2016 at 1-3 (Pa. Super. Jan. 25,

2017) (unpublished memorandum) (quoting Trial Court Opinion, 6/30/16, at

1-3).

        On January 27, 2017, this Court affirmed Appellant’s judgment of

sentence.     See id. at 1.     The PCRA court summarized the subsequent

procedural history pertinent to this appeal as follows:

           [Appellant] filed a pro se [PCRA petition] on May 15, 2017, and
        we entered an Order on March 29, 2018, which, inter alia,
        appointed counsel to represent [Appellant] relative to the instant
        matter and directed said counsel to determine the necessity for
        the filing of any supplement to [Appellant]’s pro se [petition].

           On May 29, 2018, a hearing was held on [Appellant’s petition],
        when testimony and evidence was presented by [Appellant] for
        the Court’s consideration. We denied [Appellant’s PCRA petition]
        on the record at the conclusion of the PCRA hearing at which time

                                       -3-
J-S16027-19


      he was also advised of his appellate rights. ([N.T., 5/29/18, at
      18-19).]

         [Appellant] filed a timely Notice of Appeal on June 11, 2018
      and, following the appointment of appellate counsel, filed a
      Statement of Matters Complained of on Appeal on July 5, 2018.
      The Commonwealth filed a response thereto on July 17, 2018.

PCRA Court Opinion, 10/1/18, at 1-2.

      On November 19, 2018, PCRA Counsel filed a petition to withdraw with

this Court, attaching a Turner/Finley no-merit letter, with notice to Appellant

that he had the right to proceed pro se or retain private counsel. Before we

review the merits of Appellant’s claims, we must determine if PCRA Counsel

has satisfied the requirements to be permitted to withdraw from further

representation.

      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;

      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


                                     -4-
J-S16027-19


      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

that states the nature and extent of his review of the case, listed the issues

for which Appellant sought review, explained why and how the issues lack

merit, and requested permission to withdraw.       See Turner/Finley Letter,

11/19/18; Motion to Withdraw as Counsel, 11/19/18. PCRA Counsel also 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.    Thus, the record reflects that PCRA Counsel

                                       -5-
J-S16027-19


submitted a petition to withdraw and “no-merit” letter that satisfy the

technical demands of Turner/Finley.          We now turn to our review of

Appellant’s claims to ascertain whether he is entitled to relief.

      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.

      In Appellant’s first issue, as raised in the Turner/Finley no-merit letter,

he asserts that the PCRA court erred in dismissing his claim that trial counsel

was ineffective for failing to object to hearsay testimony from Officer Balchun

regarding “what a victim told him in furtherance of his investigation.”

Turner/Finley Letter at 5.

      In deciding ineffective assistance of counsel claims, we begin with the

presumption that counsel rendered effective assistance. Commonwealth v.

Bomar, 104 A.3d 1179, 1188 (Pa. 2014). To overcome that presumption,

the petitioner must establish: “(1) the underlying claim has arguable merit;

(2) no reasonable basis existed for counsel’s action or failure to act; and (3)

the petitioner suffered prejudice as a result of counsel’s error, with prejudice

measured by whether there is a reasonable probability that the result of the

proceeding would have been different.”           Id. (citation omitted).      To


                                      -6-
J-S16027-19


demonstrate prejudice in an ineffective assistance of counsel claim, “the

petitioner must show that there is a reasonable probability that, but for

counsel’s unprofessional errors, the result of the proceeding would have been

different.” Commonwealth v. King, 57 A.3d 607, 613 (Pa. 2012). If the

petitioner fails to prove any of these prongs, the claim is subject to dismissal.

Bomar, 104 A.3d at 1188.

      Appellant’s claim lacks arguable merit. As both the trial court and PCRA

Counsel point out, Appellant was unable at his PCRA hearing to identify in the

record the alleged hearsay testimony to which he alleges his trial counsel

should have objected. The transcript of Appellant’s PCRA hearing reveals the

following:

      Q. You now get to trial and there is a trial transcript that has
      obviously been made. I want to first get into the issue having to
      do with a woman’s statement that the officer testified to. Can you
      give the judge some background and idea of what it is you think
      was a mistake and what went wrong?

      A. Officer Balchun took the stand and testified that when – he
      went to retrieve the drugs, a lady stopped him and said the guy
      you arrested almost ran me over. I looked at my lawyer and told
      him, like, you not going to say object because it is hearsay? And
      he said to me no.

      Q. Now, have you reviewed the trial court transcript that has []
      been typed out?

      A. Yes.

      Q. Is that is that testimony in the trial transcript itself?

      A. No, it’s not.

N.T., 5/29/18, at 5.

                                      -7-
J-S16027-19


      As the PCRA hearing transcript demonstrates, Appellant concedes that

the alleged hearsay testimony for which he faults trial counsel for not raising

an objection is not part of the record.     See id.    Trial counsel cannot be

ineffective for failing to object to testimony that does not exist. Therefore,

the PCRA court did not abuse its discretion in concluding that this claim lacks

arguable merit.

      In Appellant’s second issue, as raised in the Turner/Finley no-merit

letter, Appellant argues that trial counsel was ineffective in his cross-

examination of Officer Balchun.      Appellant asserts that trial counsel was

ineffective because he did not question Officer Balchun about the inconsistent

statements he made regarding the route he used in his pursuit of Appellant.

      We conclude that this issue also lacks arguable merit. The transcript of

Appellant’s PCRA hearing reflects that Appellant was unable to specify what

inconsistent statements, if any, Officer Balchun made during his trial

testimony relating to the route he used to pursue Appellant. See id. at 7-13.

Appellant has also failed to explain how these allegedly inconsistent

statements prejudiced him at trial.     Appellant’s second issue amounts to

nothing more than a bald assertion of ineffectiveness. Thus, the PCRA court

did not abuse its discretion in concluding that this claim lacks merit.

      Finally, in his pro se response to Counsel’s Turner/Finley Letter,

Appellant argues that his constitutional rights were violated because “the

Commonwealth failed to provide the defendant with formal and specific notice


                                      -8-
J-S16027-19


for the charges: (1) fleeing and eluding, (2) possession of a small amount of

marijuana, (3) recklessly endangering another person, (4) flight to avoid

apprehension, and (5) resisting arrest and summary offenses.” Response to

Turner/Finley Letter at 1. Appellant maintains that he is entitled to a new

trial. We disagree.

      In addition to failing to point to any record support for this claim,

Appellant has waived it for purposes for PCRA review, as he could have raised

the claim at trial or on direct appeal.       See 42 Pa.C.S.A. § 9544(b) (“For

purposes of this subchapter, 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.”). Therefore, this issue

does not entitle Appellant to relief.

      For these reasons, we agree with the PCRA court and PCRA Counsel that

there are no meritorious issues that Appellant could pursue on collateral

review, and affirm the order dismissing his PCRA petition.

      Order affirmed. Petition to withdraw granted.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 04/09/2019



                                        -9-
