J-S01034-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                       IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                            Appellee

                       v.

KWAME MASSINA

                            Appellant                   No. 2724 EDA 2014


                 Appeal from the PCRA Order August 13, 2014
                In the Court of Common Pleas of Lehigh County
              Criminal Division at No(s): CP-39-CR-0001680-2008


BEFORE: GANTMAN, P.J., MUNDY, J., and MUSMANNO, J.

MEMORANDUM BY GANTMAN, P.J.:                       FILED FEBRUARY 24, 2016

        Appellant, Kwame Massina, appeals from the order entered in the

Lehigh County Court of Common Pleas, which denied his petition brought

pursuant to the Post Conviction Relief Act (“PCRA”).1 We affirm.

        In its opinion, the trial court fully and correctly sets forth the relevant

facts and procedural history of this case.2 Therefore, we have no reason to

restate them.

        Appellant raises the following issues for our review:
____________________________________________


1
    42 Pa.C.S.A. §§ 9541-9546.
2
  The court denied Appellant’s PCRA petition by order dated August 12,
2014, and docketed August 13, 2014.       The record makes clear that
Appellant gave his notice of appeal to prison authorities for mailing on
September 12, 2014. Thus, pursuant to the prisoner mailbox rule, Appellant
timely filed his notice of appeal.
J-S01034-16


           WHETHER THE TRIAL COURT ERRED IN PERMITTING
           COUNSEL TO WITHDRAW AND DENYING [APPELLANT’S]
           PCRA   PETITION,   WHERE    [PCRA]    COUNSEL’S
           TURNER/FINLEY3 LETTER WAS LEGALLY INSUFFICIENT?

           WHETHER PCRA COUNSEL’S “NO-MERIT” LETTER FAILED
           TO DETAIL THE NATURE AND EXTENT OF [PCRA]
           COUNSEL’S REVIEW OF THE MERITS OF EACH OF THOSE
           CLAIMS?

           WHETHER PCRA COUNSEL RENDERED INEFFECTIVE
           ASSISTANCE OF COUNSEL BECAUSE HE FAILED TO
           INVESTIGATE, RAISE AND ADDRESS ALL OF THE ISSUES
           PRESENTED IN [APPELLANT’S] PRO SE PCRA PETITION?

           WHETHER PCRA COUNSEL WAS INEFFECTIVE IN FAILING
           TO DO A PROPER INDEPENDENT REVIEW OF THE
           RECORD?

           WHETHER THE TRIAL COURT ERRED IN PERMITTING
           [PCRA] COUNSEL TO WITHDRAW AND DENYING
           [APPELLANT’S] PCRA PETITION, WHEREIN PCRA COUNSEL
           FAILED TO CONTEMPORANEOUSLY SUPPLY [APPELLANT]
           WITH A COPY OF [PCRA] COUNSEL’S MOTION TO
           WITHDRAW AND WITH BOTH A COPY OF THE “NO-MERIT”
           LETTER AND A STATEMENT ADVISING THAT IN THE EVENT
           THE COURT GRANTS THE MOTION TO WITHDRAW, HE HAS
           THE RIGHT TO PROCEED PRO SE OR HIRE COUNSEL?

           WHETHER THE TRIAL COURT ERRED IN DENYING
           [APPELLANT’S] PRO SE NUNC PRO TUNC OBJECTION TO
           PCRA COUNSEL’S TURNER/FINLEY LETTER?

(Appellant’s Brief at 4-5).4

        Our standard of review of the denial of a PCRA petition is limited to

____________________________________________


3
  Commonwealth v. Turner, 518 Pa. 491, 544 A.2d 927 (1988);
Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc).
4
    For purposes of disposition, we have reordered Appellant’s issues.



                                           -2-
J-S01034-16


examining    whether    the   evidence    of   record     supports     the     court’s

determination     and   whether   its    decision   is   free    of    legal    error.

Commonwealth v. Conway, 14 A.3d 101, 108 (Pa.Super. 2011), appeal

denied, 612 Pa. 687, 29 A.3d 795 (2011). This Court grants great deference

to the findings of the PCRA court if the record contains any support for those

findings. Commonwealth v. Boyd, 923 A.2d 513, 515 (Pa.Super. 2007),

appeal denied, 593 Pa. 754, 932 A.2d 74 (2007).                 We give no such

deference, however, to the court’s legal conclusions.       Commonwealth v.

Ford, 44 A.3d 1190, 1194 (Pa.Super. 2012). The PCRA court findings will

not be disturbed unless the certified record provides no support for the

findings.   Commonwealth v. Taylor, 933 A.2d 1035, 1040 (Pa.Super.

2007), appeal denied, 597 Pa. 715, 951 A.2d 1163 (2008). There is no right

to a PCRA hearing; a hearing is unnecessary where the PCRA court can

determine from the record that there are no genuine issues of material fact.

Commonwealth v. Jones, 942 A.2d 903, 906 (Pa.Super. 2008), appeal

denied, 598 Pa. 764, 956 A.2d 433 (2008).

      The   law   presumes    counsel    has   rendered    effective     assistance.

Commonwealth v. Williams, 597 Pa. 109, 950 A.2d 294 (2008).                     When

asserting a claim of ineffective assistance of counsel, the petitioner is

required to demonstrate that: (1) the underlying claim is of arguable merit,

(2) counsel had no reasonable strategic basis for his action or inaction, and,

(3) but for the errors and omissions of counsel, there is a reasonable


                                        -3-
J-S01034-16


probability that the outcome of the proceedings would have been different.

Commonwealth v. Kimball, 555 Pa. 299, 312, 724 A.2d 326, 333 (1999).

The failure to satisfy any prong of the test for ineffectiveness will cause the

claim to fail. Williams, supra.

      After a thorough review of the record, the briefs of the parties, the

applicable law, and the well-reasoned opinion of the Honorable Douglas G.

Reichley, we conclude Appellant’s issues merit no relief.      The trial court

opinion comprehensively discusses and properly disposes of the questions

presented.    (See Trial Court Opinion, filed January 28, 2015, at 9-14)

(finding: (issues 1-4) PCRA counsel filed lengthy and detailed “no merit”

letter with his petition to withdraw, in which he thoroughly reviewed all

forty-two issues raised in Appellant’s pro se supplemental PCRA petition;

PCRA counsel properly and thoroughly addressed each of Appellant’s issues

throughout “no merit” letter; where Appellant’s issues were not patently

meritless, PCRA counsel documented what steps he took to review merits of

issue; where issues were patently legally meritless, PCRA counsel properly

noted this in “no merit” letter; except for issues that were patently legally

meritless, PCRA counsel provided detailed explanation of nature and extent

of his review of issues and why he determined issues were meritless; PCRA

counsel noted he spoke with trial counsel, reviewed trial transcripts, and

reviewed record prior to preparation of “no merit” letter; court reviewed

PCRA counsel’s “no merit” letter and concluded it addressed each issue in


                                     -4-
J-S01034-16


Appellant’s pro se supplemental PCRA petition; PCRA counsel conducted

complete review of record and took every necessary step to discern whether

Appellant had any ground for PCRA relief; “no merit” letter complied with

dictates of Turner/Finley and court properly granted PCRA counsel’s

petition to withdraw; (issue 5) in “no merit” letter mailed to Appellant,

PCRA counsel informed Appellant that he could either represent himself or

hire new counsel if court permitted PCRA counsel to withdrawal; at July 15,

2014 hearing on PCRA counsel’s petition to withdraw, court further informed

Appellant of status of his case and detailed Appellant’s options after court

granted PCRA counsel’s petition to withdraw; Appellant was aware of petition

to withdraw and his options moving forward prior to 7/15/14 hearing; thus,

court properly granted PCRA counsel’s petition to withdraw (issue 6) court

denied Appellant’s pro se nunc pro tunc objection because it was

procedurally improper, untimely and meritless; at July 15, 2014 hearing,

court granted PCRA counsel’s petition to withdraw and issued notice of its

intent to dismiss Appellant’s PCRA petition without hearing pursuant to

Pa.R.Crim.P. 907 (“Rule 907 notice”); on August 6, 2014, Appellant filed

timely response to court’s Rule 907 notice; on August 12, 2014, after review

of Appellant’s response to court’s Rule 907 notice and Appellant’s PCRA

petition, court determined dismissal without hearing was appropriate

because no arguably meritorious grounds for relief existed; on August 28,

2014, Appellant filed pro se nunc pro tunc objection to PCRA counsel’s “no


                                   -5-
J-S01034-16


merit” letter after court had already dismissed Appellant’s PCRA petition;

under these circumstances, court properly denied Appellant’s August 28,

2014 objection as untimely because Appellant’s August 6, 2014 response to

Rule 907 notice demonstrated Appellant’s understanding of status of his

case). Accordingly, we affirm on the basis of the trial court’s opinion.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/24/2016




                                     -6-
                                                                            Circulated 01/26/2016 02:59 PM




   IN THE COURT OF COMMON PLEAS OF LEHIGH COUNTYPENNSYL VANIA,
                        CRIMINAL DIVISION

COMMONWEALTH OF PENNSYLVANIA.                            )
                                                         )
                 vs.                                     )    No. 1680 of 2008
                                                         )    2724 EDA 2014
KWAME MASSINA,                                           )
                        Appellant                        )

                                            ORDER

          AND NOW,     this) 77JLY of Jan~ary,   2015,

          IT APPEARING that the Appellant has filed a Notice of Appeal in the above-captioned

matter;

          IT FURTHER APPEARING that the accompanying Memorandum Opinion satisfies

the requirements of Pa.R.A.P. 1925 (a);

          IT IS HEREBY ORDERED that the Clerk of Courts, Criminal, transmit the record of

the above-captioned matter to the Superior Court forthwith.



                                             By the Court:




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   IN THE COURT OF COMMON PLEAS OF LEHIGH COUNTYPENNSYLVANIA,
                        CRIMINAL DIVISION

COMMONWEALTH OF PENNSYLVANIA                          )
                                                      )
               vs.                                    )       No. 1680 of 2008
                                                      )           2752 EDA 2012
KW AME MASSINA,                                       )
                      Appellant                       )


                                         1925(a) Opinion
                                                                                          ./
January 27, 2015                                                                          -~ : ...   ,.
                                                                                               ·:?. .         c..,'.'>
                                                                    Douglas G. Re1e_!,!~y, J. ·:_,,
                                                                                     ..... ·    .,,,,.,,,
       Kwame Massina, Appellant, filed a Notice of Appeal on September 23, 2014 follo1hf

this Court's dismissal of his Post-Conviction Relief Act (PCRA) petition pursuant to 42

Pa.C.S.A § 9541 et seq. on September 8, 2014. For the reasons set forth herein, Appellant's

PCRA petition was meritless and the instant appeal should be dismissed.

                                         Factual History

       On January 31, 2008 at approximately 12:30 a.m., Officer Jeffrey Rush of the Allentown

Police Department was on routine patrol when he witnessed what he believed to be a large scale

fight outside Trinkle's Bar in the 500 block of Turner Street in Allentown, Lehigh County,

Pennsylvania. Officer Rush saw roughly two dozen people leaving the bar, some of whom were

holding pool cues or alcoholic drinks. The bar patrons pointed out a medium-build man running

from the scene dressed in dark clothing and a hoodie who was identified as possessing a gun.

Officer Rush lost sight of the man as he ran east on Turner Street and then north on Law Street.

       When Officer Rush went back to Trinkle's Bar, he found a man on his back on the floor

bleeding profusely from his head. The man, later identified as William "Big Will" Spearman,




                                                                                                          2
was unresponsive and had a large neck wound. The officer noticed the faint smell of gunpowder

in the bar. Spearman later died.

           Officer Rush saw a woman, Margarita Morales, was giving CPR to the victim. Ms.

Morales later related to the police she had been in the bar for about 7 hours when she noticed the

victim and a man identified as the Appellant coming out of the bathroom in the bar and having a

physical struggle. During this struggle, Ms. Morales saw the Appellant with a gun and heard two

gunshots. After the gunfire, Morales saw Spearman slump to the floor and people running from

the bar.

           Ms. Iris Rodriguez was also at the bar that night. While in the ladies bathroom, Rodriguez

heard a loud argument. When she came out of the bathroom, Rodriguez began to speak with

Morales when she saw the Appellant leave from the mens' bathroom, then go back in, followed

by a struggle between the Appellant and Spearman. Ms. Rodriguez saw Appellant with a gun and

then heard shots ring out.

           The bartender Edward Reid also heard a loud bang and saw patrons fleeing from one end

of the bar. Mr. Reid then saw the victim on the floor bleeding and called 911.

At the scene of the shooting, the police recovered a New York Yankees baseball hat from the

pool table close to the victim. Surveillance videotape from within the bar showed the suspect

wearing a Yankees hat. DNA evidence recovered from inside the Yankees hat was compared the

Appellant's known DNA profile. While the DNA analysis could not determine a match with the

Appellant, the analysis did determine that 1 in 2,700 unrelated Caucasians, 1 in 3,900 unrelated

African-Americans, and 1 in 3,200 unrelated Hispanics would be expected to be included in the

DNA mixture found on the Yankees hat headband.




                                                                                                    3
       An autopsy revealed the victim died from multiple gunshot wounds. The manner of death

was identified as homicide.

       Further analysis of the surveillance videotape from the bar showed the struggle between

the victim and the shooter. The victim was seen on the floor with the shooter standing over him

holding a gun while wearing a Yankees hat. However, the shooter's face was partially obscured

by a hoodie.

       Upon reviewing a photographic array, Mr. Reid identified the Appellant as the shooter,

but admitted he could only be 60% sure of his identification. Ms. Rodriguez and Ms. Morales

viewed the same photo array and both identified the Appellant as the shooter.

At trial, the Commonwealth also presented testimony from Charles Sumpter, a cellmate of the

Appellant. Sumpter testified the Appellant confessed to shooting Spearman and that the

Appellant revealed various details of the homicide which had not been disclosed in press

accounts about the shooting, including where the Appellant placed the gun after the shooting.

The gun though was never recovered by the police.

                                      Procedural History

       Appellant was convicted on September 4, 2009 following a jury trial on one count of

Criminal Homicide graded by the jury as Murder in the First Degree. The Appellant was

sentenced by the Honorable Lawrence J. Brenner on October 151 2009 to life imprisonment

without parole.

       On October 23, 2009, the Appellant filed post-sentence motions including a Motion for

Judgment of Acquittal/Motion in Arrest of Judgment and for a New Trial; a Motion challenging

the Sufficiency of the Evidence; and a Motion Challenging the Verdict as against the Weight of

the Evidence. Those motions were denied on February 1, 2010. A Notice of Appeal was filed on



                                                                                                  4
or about February 24, 2010. On appeal, the Appellant challenged the decision of the Suppression

Court in denying the omnibus pretrial motion to suppress identification of the Appellant from a

photo array, the trial court's decision to allow a videotape into evidence before the jury, the trial

court's decision to deny the Appellant's motion in limine to exclude DNA evidence, and the trial

court's denial of the Appellant's post-trial motions challenging the weight and sufficiency of the

evidence. The Superior Court affirmed the conviction and sentence on October 28, 2010. The

Pennsylvania Supreme Court denied a petition for allowance of appeal on March 16, 2011.

       The Appellant was originally represented by Attorney Dennis Charles of the Lehigh

County Public Defender's Office. However, on January 26, 2009, that office was granted

permission to withdraw as counsel for the Appellant, and Kimberly Mak.oul, Esq. was appointed

by the Honorable Kelly L. Banach to represent the Appellant. Upon the filing of the PCRA

petition on March 16, 2012, the undersigned appointed Robert Long, Esq. as PCRA counsel on

March 19, 2012. Subsequent to his review of the facts of this case and the applicable caselaw,

Attorney Long filed a Motion to Withdraw as Counsel following his submission of a "Finley"

letter indicating there were not any cognizable grounds for relief under the PCRA statute.

        On June 5, 2012, following a hearing attended by the Appellant and his court-appointed

counsel, the Court granted Attorney Long's petition to withdraw as counsel and indicated the

Court's intention to dismiss the PCRA petition without a hearing under Pa.R.Crim.P. 907. The

Court granted the Appellant 90 days to respond to the notice from the Court of the intention to

dismiss the PCRA petition or to allege any other grounds of ineffectiveness of counsel not

previously specified. The Appellant filed a responsive pleading on August 20, 2012.

        On August 22, 2012, the Court denied and dismissed the PCRA petition. The Appellant

mailed a Notice of Appeal from this order on September 21, 2012. The Appellant was directed to



                                                                                                        5
file a Concise Statement of Matters Complained of on Appeal. After granting the Appellant

additional time to file his 1925(b) Statement until November 9, 2012, the Appellant filed his

Concise Statement on October 31, 2012. Appellant's Concise Statement alleged thirty-eight (38)

grounds for relief.

        The Court prepared its 1925(a) Opinion addressing each ground for relief. In addition to

authoring that opinion, the Court separately advised the Superior Court that it determined that

counsel's Turner/Finley letter was legally insufficient and indicated that a remand would be

appropriate.

        On August 15, 2013, the Superior Court remanded the case pursuant to this Court's letter

request. Upon receiving the Superior Court's opinion, this Court ordered that David D. Ritter,

Esq. be appointed to represent Appellant in his PCRA petition. The Court afforded Attorney

Ritter sixty days to file either an Amended PCRA petition or an appropriate Turner/Finley letter.

        Appellant filed a pro se thirty-page document entitled "Amended/Supplement to

P.C.R.A. Petition" on September 4, 2013. Because counsel had been appointed, the Court

forwarded that petition to Attorney Ritter for review without acting on it.

        Attorney Ritter was a conflicts attorney for Lehigh County at the time of his appointment

to this case. However, he resigned from that position effective November 15, 2013. Attorney

Ritter notified Appellant of that determination by letter dated October 18, 2013. In the same

letter, Attorney Ritter indicated that he would be requesting a ninety-day extension to file an

Amended PCRA Petition so that his replacement in the conflict counsel position could have

adequate time to review the case.

        Appellant wrote to the Court to communicate his concern about Attorney Ritter's

retirement from the conflicts position and the lack of communication Attorney Ritter had with



                                                                                                    6
Appellant regarding the instant case. The Court wrote a letter back to Appellant informing him

that new counsel would be appointed and the Court would properly allow adequate time for that

attorney to review the matter and file whatever was appropriate.

        Attorney Sean T. Poll was hired as conflicts counsel and was advised that he would be

assigned to Appellant's case in late-2013 or early 2014. Attorney Poll contacted the Court in

early-January 2014 to discuss the procedural status of the case and the time deadlines applicable

thereto. On January 16, 2014, the Court again responded to a correspondence from Appellant

regarding the status of his counsel.

        On January 27, 2014, Attorney Poll was formally appointed to Appellant's case. He was

given ninety (90) days to file an Amended PCRA or a Turner/Finley letter at his discretion.

        On April 21, 2014, Attorney Poll filed a petition requesting an extension of time for an

additional thirty days, citing the fact that he was still waiting on trial counsel's files and had not

been able to review all of the relevant materials. The Court granted the extension on April 22,

2014 and afforded counsel an additional thirty days.

        On May 22, 2014, Attorney Poll filed a formal Motion to Withdraw. Unlike the prior

Turner/Finley letter filed in 2012, Attorney Poll's motion thoroughly discussed each of

Appellant's forty-two (42) issues on appeal and explained that all of them were either meritless

or not cognizable under the PCRA. The Court reviewed that motion and found that it was

appropriate. Accordingly, the Court placed Appellant on notice of its intent to dismiss his PCRA

pursuant to Pa.R.Crim.P. 907 by order dated July 15, 2014. On July 15, 2014, the Court orally

granted Attorney Poll's motion to withdraw as counsel. Appellant filed a response on August 6,

2014.




                                                                                                         7
        On August 12, 2014, after careful review of Attorney Poll's letter and the issues

Appellant raised, the Court denied and dismissed Appellant's PCRA. On August 28, 2014,

Appellant filed a pro se "Nunc Pro Tune Objection to Finley/Turner Letter," which the Court

dismissed in an order with a footnote explaining that the PCRA was dismissed based on its lack

of merit.

        On September 23, 2014, Appellant filed a Notice of Appeal.' On September 26, 2014, the

Court ordered Appellant to file a Concise Statement of Matters Complained of on Appeal.

        On October 1, 2014, Appellant submitted a pro se letter regarding the dismissal of his

PCRA to the Lehigh County Prothonotary. On the same day, the Court entered an order releasing

Attorney Poll from representation of Appellant. 2

        Also on October 1, 2014, out of an abundance of caution, the Court appointed new

counsel to Appellant for appellate purposes, Attorney Matthew Rapa. Appellant filed a pro se

Concise Statement on October 9, 2014, but because counsel had already been appointed, the

Court forwarded that filing to Attorney Rapa for his consideration and review. On October 23,

2014, Attorney Rapa requested additional time to file a Concise Statement, which the Court

granted on October 27, 2014.

        On December 22, 2014, Attorney Rapa requested additional time to file his Concise

Statement, which the Court granted the same day.

        On January 21, 2015, Attorney Rapa filed the Concise Statement for Appellant.

        This Opinion follows.

1
 Pursuant to the prisoner mailbox rule, the Court treated the appeal as timely because it was dated September 12,
2014.
2
 While the Court had previously granted Attorney Poll's motion to withdraw, through an oversight, a written order
was never generated. The October 1, 2014 order created a record entry consistent with the oral grant of Attorney
Poll's motion on July 15, 2014.


                                                                                                                    8
                                             Discussion
       Appellant raises six issues on appeal, all with respect to the Court allowing Attorney Poll

to withdraw as counsel. In summary form, these issues are as follows:

           1. PCRA counsel's Turner/Finley letter was legally insufficient;

           2. PCRA counsel failed to address all of Appellant's issues;

           3. PCRA counsel's letter failed to detail the nature and extent of counsel's review of

               each of the issues being raised;

           4. The Court erred in permitting PCRA counsel to withdraw based on counsel's

               alleged failure to contemporaneously supply Appellant with a copy of the motion

               to withdraw and a copy of the no-merit letter;

           5. The Court erred in denying Appellant's prose Nunc Pro Tune objection to the

               Turner/Finley letter;

           6. PCRA counsel was ineffective for failing to conduct a proper independent review

               of the record.

       Each of these issues is discussed herein. Preliminarily, in order to be eligible for relief

under the PCRA, a defendant must prove by a preponderance of the evidence that his conviction

or sentence resulted from a violation of the Pennsylvania Constitution or the federal Constitution,

or ineffective assistance of counsel which so undermined the truth-determining process that no

reliable adjudication of guilt or innocence could have taken place. Commonwealth v. Daniels, 17

A.3d 297 (Pa. Super. 2011). There is not any requirement that the PCRA court hold a hearing on

every issue a petitioner raises. Commonwealth v. Clark, 599 Pa. 204, 961 A.2d 80 (2008). After

the PCRA court dismisses a PCRA without a hearing, a defendant must show that he raised a

genuine issue of fact which, if resolved in his favor, would have entitled him to relief, or that the




                                                                                                     9
court otherwise abused its discretion in denying a hearing. Commonwealth v. Paddy, 15 AJd

431 (Pa. Super. 2011).

Issues 1, 2, 3, and 6: Legal Sufficiency of Turner/Finley Letter and PCRA Counsel's
Investigation

       This case is somewhat unique because prior counsel had filed a Turner/Finley letter that

the Court, upon further review while preparing an opinion for the appeal, determined was legally

insufficient. Once new counsel was appointed and had sufficient time to review Appellant's case,

counsel filed his own Turner/Finley letter, which was much more detailed than the initial one.

Accordingly, the first issue on appeal is the legal sufficiency of that second letter.

       The requirements of a Turner/Finley letter and dismissal granting appointed counsel's

withdrawal request were specifically and succinctly articulated in Commonwealth v. Friend as

follows:

       1) As part of an application to withdraw as counsel, PCRA counsel must attach to
       the application a "no-merit" letter,
       2) PCRA counsel must, in the "no-merit" letter, list each claim the petitioner
       wishes to have reviewed, and detail the nature and extent of counsel's review of
       the merits of each of those claims,
       3) PCRA counsel must set forth in the "no-merit" letter an explanation of why the
       petitioner's issues are meritless,
       4) 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 trial
       court grants the application of counsel to withdraw, the petitioner has the right to
       proceed prose, or with the assistance of privately retained counsel;
       5) the court must conduct its own independent review of the record in the light of
       the PCRA petition and the issues set forth therein, as well as of the contents of the
       petition of PCRA counsel to withdraw; and
       6) the court must agree with counsel that the petition is meritless.

Commonwealth v. Friend, 896 A.2d 607, 615 (Pa. Super. 2006).

        Addressing each of these requirements in turn, first, the record clearly reflects that a

lengthy and detailed "no-merit" letter was attached to counsel's motion to withdraw.



                                                                                                   10
       Regarding the substantive merits of the letter, prior to granting counsel's motion to

withdraw, the Court reviewed the contents of the letter in thorough detail. The letter is of record

for the Superior Court to review. In counsel's letter, counsel thoroughly reviews each of the
                                 I

forty-two (42) issues Appellant sought to raise in his PCRA.

       By way of example, in the first issue, Appellant sought to argue that both the

Commonwealth and defense counsel failed to test certain physical evidence found at the crime

scene. However, in Attorney Poll's letter, he accurately indicated that the Commonwealth need

not test everything found at a crime scene; its only obligation is to acquire sufficient evidence to

sustain its burden of proof. As for defense counsel not requesting that it be tested, Attorney Poll

spoke to defense counsel who indicated she did not have a specific door knob at issue tested

because by the time she was assigned to his case, too much time had passed to viably test the

doorknob.

       Another example is in issue number 14 where Appellant sought to argue that Attorney

Makoul, his trial counsel, was ineffective for failing to present issues well. The letter indicates

that Attorney Poll reviewed the trial transcript and concluded that the issue was meritless

because Attorney Makoul presented an effective case.

       Consistently throughout the Turner/Finley letter, counsel properly and thoroughly

addressed each issue. In those instances where issues were not patently meritless, counsel

indicated what steps he took to review the merits of the issue. In other instances, issues were

facially or legally meritless and it was sufficient for counsel to simply note that as the case. For

example, the second issue Appellant sought to pursue was, "Was it Governmental interference to

issue an illegal sentence in violation of the Tarver decision?" Appellant was convicted of first




                                                                                                       11
degree murder, and as Attorney Poll properly noted, the penalty for first degree murder is life

imprisonment, rendering this claim meritless.

        In sum, in his Turner/Finley letter, Attorney Poll thoroughly and properly reviewed every

issue Appellant sought to raise and explained very clearly and concisely what steps he undertook

to review that issue and why it was meritless. Accordingly, the first issue on appeal alleging legal

insufficiency of the letter is meritless.

        Next, as discussed in detail both above and in the body of the Turner/Finley letter,

counsel thoroughly investigated and addressed each of Appellant's issues in preparing the letter.

Counsel detailed the nature and extent of his review of every single issue except in those

circumstances where the issues were facially legally meritless. This included conducting

conversations with Appellant's trial counsel, reviewing the transcript of the trial, and reviewing

the record wherever appropriate.

        All of these actions.render Appellant's first, second, third, and sixth issues on appeal

meritless. The Court reviewed the Turner/Finley letter and concluded that it thoroughly

addressed every issue Appellant sought to raise in his PCRA. The letter further demonstrated that

counsel took every necessary step to review each of these issues so as to properly conduct a

complete review of the record in order to discern whether there was any ground for PCRA relief.

As a result, the Turner/Finley letter was legally sufficient and counsel was properly permitted to

withdraw as a consequence.

Issue 4: PCRA Counsel's Compliance with Procedural Requirements

        Appellant argues that counsel failed to provide him the proper notice of his

options pursuant to the requirements of filing a withdrawal motion with a Turner/Finley

letter. "PCRA counsel must contemporaneously forward to the petitioner a copy of the



                                                                                                     12
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 trial 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." Friend, 896 A.2d at 615.

        In this case, at the end of counsel's letter, he explains, "I have enclosed a copy of

the Petition to Withdraw as Counsel with this attached letter, which I will be filing with

the court.   If   the court permits me to withdraw, you will have the option of either

representing yourself or hiring counsel of your own choosing." (Turner/Finley letter, at

[9].)

        Additionally, on July 15, 2014, the Court conducted a hearing in consideration of

counsel's motion to withdraw during which Appellant was provided notice on the record

of the status of his PCRA and his options following the Court's decision to grant the

withdrawal petition.

        Accordingly, this issue is meritless and no relief is due.

Issue 5: Dismissal of Appellant's Pro Se Objection to Turner/Finley Letter

        The final issue on appeal involves the Court's dismissal of a pro se filing

objecting to Attorney Poll's Turner/Finley letter. The filing was dismissed because it was

procedurally improper, untimely, and meritless. A brief review of the relevant procedural

history sheds some light on this issue.

        On May 22, 2014, PCRA counsel filed his withdrawal motion along with the

Turner/Finley letter. The Court scheduled a hearing for July 15, 2014 because of the

procedural issues that had previously impacted this case so that Appellant could be




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advised on the record of what was transpiring and be given a full and fair opportunity to

object.

          At the July 15, 2014 hearing, it was explained that the motion to withdraw would

be granted and that Appellant would be afforded notice of the Court's intent to dismiss

his PCRA without a hearing pursuant to Pa.R.Crim.P.            907. Appellant was given

appropriate time to respond. In fact, Appellant did file a type-written response on August

6, 2014 to the Court's notice.

          The Court reviewed that response and the issues Appellant sought to raise and

determined that there was no arguably meritorious ground for relief necessitating a

hearing. Accordingly, the PCRA was denied and dismissed on August 12, 2014.

          On August 28, 2014, Appellant filed a prose document entitled "Nunc Pro Tune

Objection to Finley/Turner Letter. By that time, the PCRA had already been dismissed.

Additionally, Appellant demonstrated his cognizance of the time frame because he timely

filed a response to the Court's Notice oflntent to Dismiss.

          In contrast to the August 6, 2014 response, the August 28, 2014 filing was

untimely. It also failed to raise anything meritorious. Accordingly, it was properly

dismissed.




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                                           Conclusion

       For the foregoing reasons, the instant appeal is meritless. PCRA counsel was given ample

time to prepare and to conduct an independent investigation of the issues. The Turner/Finley

letter thoroughly and properly addresses all of the issues Appellant sought to raise and explains

why they are not meritorious or are improper for PCRA review. Additionally, the letter properly

advised Appellant of his rights as required by governing case law. Finally, Appellant's pro se

filing on August 28, 2014 was properly dismissed in light of the procedural posture of the case.

Consequently, Appellant's PCRA was properly dismissed and the within appeal is meritless. The

Court respectfully recommends that its dismissal of Appellant's PCRA be affirmed.

                                                     By the Court:




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