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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

  COMMONWEALTH OF PENNSYLVANIA            :   IN THE SUPERIOR COURT OF
                                                    PENNSYLVANIA

               v.


  CHRISTOPHER M. WILLIAMS

                    Appellant             :   No. 2344 EDA 2018
             Appeal from the PCRA Order Entered July 10, 2018
  In the Court of Common Pleas of Philadelphia County Criminal Division at
                      No(s): CP-51-CR-0004715-2011

BEFORE:    LAZARUS, J., KUNSELMAN, J., and STRASSBURGER*, J.

MEMORANDUM BY LAZARUS, J.:                            FILED JULY 16, 2019

      Christopher M. Williams appeals from the order, entered in the Court of

Common Pleas of Philadelphia County, denying his petition filed pursuant to

the Post Conviction Relief Act ("PCRA"), 42 Pa.C.S.A. §§ 9541-9546.        On

appeal, PCRA counsel filed an "Anders Brief" and an application to withdraw.'




I Counsel filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967),
apparently under the mistaken belief that an Anders brief is required where
counsel seeks to withdraw on appeal from the denial of PCRA relief.
A Turner/Finley no -merit letter, however, is the appropriate filing. See
Commonwealth v. Turner, 544 A.2d 927 (1988); Commonwealth v.
Finley, 550 A.2d 213 (1988). However, because an Anders brief provides
greater protection to a defendant, this Court may accept an Anders brief in
lieu of a Turner/Finley letter. Commonwealth v. Widgins, 29 A.3d 816,
817 n.2 (Pa. Super. 2011).




   Retired Senior Judge assigned to the Superior Court.
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Based on our review of the record, we affirm the PCRA court's order dismissing

Williams' petition and grant PCRA counsel's petition to withdraw.

      On April 5, 2011, Williams was arrested on numerous charges related to

the violent robbery of a hearing -impaired man. On March 9, 2012, a jury

found Williams guilty of robbery,2 conspiracy to commit robbery,3 and
burglary.4     On May 16, 2012, the trial court sentenced Williams to an
aggregate term of ten to thirty years' incarceration. Williams filed a direct

appeal to this Court, which affirmed his judgment of sentence on June 20,

2013. See Commonwealth v. Williams, 1526 EDA 2012 (Pa. Super. filed

June 20, 2013) (unpublished memorandum decision). The Supreme Court of

Pennsylvania denied his petition for allowance of appeal on December 3, 2013.

See Commonwealth v. Williams, 370 EAL 2013 (Pa. 2013).

      On December 8, 2014, Williams filed a pro se PCRA petition. The PCRA

court appointed counsel, J. Matthew Wolfe, Esquire, who filed an amended

PCRA petition on July 22, 2016. In the amended petition, Williams argued

that trial counsel was ineffective for failing to obtain surveillance videos from

the crime area that would have shown Williams was not involved in the
offenses for which he was convicted. Williams also requested discovery to



2 18 Pa.C.S.A. § 3701(a)(1)(ii).

3 18 Pa.C.S.A. § 903.

4 18 Pa.C.S.A. § 3502(a).


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allow him to obtain copies of the surveillance videos, either from the District

Attorney or via subpoena, as well as a hearing to examine Williams and trial

counsel, Public Defender Krista Quinn, Esquire, on the record. PCRA counsel

attached certifications to the amended petition. The certifications averred

Williams would testify at a PCRA hearing that he informed his trial counsel of

the videotape, and that trial counsel would testify "as to her knowledge of the

existence of the videotapes, her efforts to obtain them and the reasons why she

did not present said evidence." Williams Amended PCRA Petition, at 3-4.

        The record does not contain an order granting or denying Williams'

request for discovery. However, in response to the PCRA court's directive, in

a letter dated June 6, 2018, the Assistant District Attorney stated that she

found     nothing   in   the   Commonwealth's   "trial   file" to   suggest    the

Commonwealth ever possessed any surveillance videos. The Commonwealth

filed a motion to dismiss on May 9, 2018. Williams did not respond to the

motion.    On July 6, 2018, the PCRA court dismissed the petition.5           PCRA

counsel filed a notice of appeal and a statement pursuant to Pa.R.A.P. 1925(c),

stating his intent to file an Anders brief. The PCRA court did not issue a Rule

1925(a) opinion.



5 We note with displeasure the PCRA court's failure to issue the mandatory
notice of intent to dismiss prior to dismissing the petition without a hearing.
Pa.R.Crim.P. 907. However, Williams has not raised the issue; thus, it is
waived. See Commonwealth v. Guthrie, 749 A.2d 502, 503 (Pa. Super.
2000). As discussed infra, we found the appeal meritless. Therefore, the
error was harmless.
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      We first consider whether counsel has complied with the technical
requirements necessary to withdraw under Turner/Finley.

      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 [PCRA] court, or [a] brief on appeal to this Court,
      detailing the nature and extent of counsel's diligent review of the
      case, listing the issues [that] petitioner wants to have reviewed,
      explaining why and how those issues lack merit, and requesting
      permission to withdraw.

      Counsel must also send to the petitioner: (1) a copy of the "no
      merit" letter/brief; (2) a copy of counsel's petition to withdraw;
      and (3) a statement advising petitioner of the right to proceed pro
      se or by new counsel.
                               *     *    *
      Where counsel submits a petition and no -merit letter that satisfy
      the technical demands of Turner/Finley, the court-[PCRA] court
      or this Court-must then conduct its own review of the merits of
      the case. If the court agrees with counsel that the claims are
      without merit, the court will permit counsel to withdraw and deny
      relief.

Commonwealth v. Doty, 48 A.3d 451, 454 (Pa. Super. 2012) (quoting
Commonwealth v. Wrecks, 931 A.2d 717, 721 (Pa. Super. 2007)).

      Williams' counsel has complied with the technical requirements of
Turner and Finley.      Counsel filed a brief with this Court that includes a
recitation of the facts, an accurate recitation of the governing legal authority,

and a legal analysis which explains counsel's conclusion that Williams' PCRA

appeal is meritless. Counsel submitted a copy of this brief to Williams, along

with a letter explaining Williams' further appellate rights and a copy of the

petition to withdraw.



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      Counsel having satisfied the above requirements, we must examine the

record to determine if the PCRA court erred in denying relief without a hearing.

Commonwealth v. Burton, 121 A.3d 1063, 1067 (Pa. Super. 2015).
Counsel has requested to withdraw; therefore, we must independently review

the record to determine whether there exist any potentially meritorious issues.

Commonwealth v. Pitts, 981 A.2d 875, 876 n. 1 (Pa. 2009). Here, we find

no merit in Williams' ineffective assistance of counsel claim.

      A petitioner's right to an evidentiary hearing is not absolute. "It is within

the PCRA court's discretion to decline to hold a hearing if the petitioner's claim

is patently frivolous and has no support either in the record or other evidence."

Commonwealth v. Wah, 42 A.3d 335, 338 (Pa. Super. 2012) (quoting
Commonwealth v. Turetsky, 925 A.2d 876, 882 (Pa. Super. 2007) (internal

citations omitted)). For a PCRA court to deny relief without a hearing, there

must be no genuine issue of material fact. See Pa.R.Crim.P. 907.

      Williams' issue concerns trial counsel's effectiveness.        We presume

counsel was effective, and it is Williams' burden to prove otherwise.         See

Commonwealth v. Fears, 86 A.3d 795, 804 (Pa. 2014). To prevail on an
ineffectiveness claim, Williams' must establish:

      (1) the underlying claim has arguable merit; (2) no reasonable
      basis existed for counsel's actions or failure to act; and (3)
      [appellant] suffered prejudice as a result of counsel's error such
      that there   is   a reasonable probability that the result of the
      proceeding would have been different absent such error.




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Commonwealth v. Lesko, 15 A.3d 345, 373 (Pa. 2011).               Williams must

prove each element; merely alleging each element is not sufficient.         See

Commonwealth v. Mason, 130 A.3d 601, 618 (Pa. 2015). A reasonable
basis does not require that counsel chose the most logical course of action,

but that the decision had some reasonable basis. Commonwealth v. Bardo,

105 A.3d 678, 684 (Pa. 2014). "To demonstrate prejudice, a petitioner must

show that there is a reasonable probability that, but for counsel's actions or

inactions, the result of the proceeding would have been different." Mason,

130 A.3d at 618 (citing Strickland v. Washington, 466 U.S. 668, 684
(1984)).

           Here, PCRA counsel certified that Williams would testify that he told

trial counsel of the video surveillance before the trial. Trial counsel did not

offer such evidence at trial. Williams has clearly pled sufficient facts to raise

a genuine issue concerning the first two elements of his claim of ineffective

counsel.    However, Williams has failed to show how he can prove the third

element, prejudice. PCRA counsel explained that neither the Commonwealth

nor the trial counsel possesses the surveillance video; without the surveillance

video, Williams cannot demonstrate a reasonable probability that the result of

the proceeding would have been different.        See Lesko, 15 A.3d at 373.
Because Williams has not shown he can prove the prejudice prong of the

Strickland test, his ineffective assistance of counsel claim is meritless. See




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Commonwealth v. Becker, 192 A.3d 107, 112 (Pa. Super. 2018) (failure to

establish any prong of the Strickland test is fatal to the claim).

      Order affirmed. Petition to withdraw granted.


Judgment Entered.




J seph D. Seletyn,
Prothonotary


Date: 7/16/19




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