J-S46031-16


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,              :     IN THE SUPERIOR COURT OF
                                           :           PENNSYLVANIA
                 Appellee                  :
                                           :
                    v.                     :
                                           :
TERRENCE SNEAD,                            :
                                           :
                 Appellant                 :     No. 987 EDA 2015

                 Appeal from the PCRA Order March 13, 2015
            in the Court of Common Pleas of Philadelphia County,
            Criminal Division, at No(s): CP-51-CR-0003643-2008

BEFORE:     BENDER, P.J.E, OTT, and STRASSBURGER,* J.

MEMORANDUM BY STRASSBURGER, J.:                            FILED AUGUST 04, 2016

      Terrence Snead (Appellant) appeals from the March 13, 2015 order

which denied his petition filed pursuant to the Post Conviction Relief Act

(PCRA), 42 Pa.C.S. §§ 9541-9546.1 We affirm.2




1
  Also before us is Appellant’s “motion for stay of appeal and for remand to
the lower court,” in which he avers that PCRA counsel failed to address all of
Appellant’s issues in her Turner/Finley and that there were additional
issues he wished to raise. On December 23, 2015, this Court denied
Appellant’s request without prejudice, allowing him to re-apply for the
requested relief within his brief. In his brief, Appellant lists the issues and
states that an evidentiary hearing is necessary to determine if counsel’s
actions were “reasonable.” However, Appellant has failed to address the
merits of any of the issues or develop an argument in support of them.
Accordingly, we deny this motion.

2
  We note with disapproval that the Commonwealth has not filed a brief in
this matter despite having requested and received an extension of time to
do so.

*Retired Senior Judge assigned to the Superior Court.
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      The PCRA court summarized the background underlying this matter as

follows.

             On November 13, 2009, following a jury trial before [the
      trial court, Appellant] was found guilty of murder of the first
      degree (H-1) and criminal conspiracy (F-1). Sentencing was
      deferred until November 16, 2009, at which time [Appellant] was
      sentenced to the mandatory term of life imprisonment.
      [Appellant was also sentenced to a consecutive term of not less
      than ten years nor more than twenty years of imprisonment for
      criminal conspiracy]. On November 23, 2009, [Appellant] filed
      post-sentence motions, which were denied by [the trial court] on
      March 19, 2010. [Appellant] filed a timely notice of appeal on
      April 5, 2010. On September 29, 2011, [this Court] affirmed
      [Appellant’s] judgment of sentence, and on March 23, 2012, our
      Supreme Court denied [Appellant’s] petition for allowance of
      appeal. [Commonwealth v. Snead, 34 A.3d 241 (Pa. Super.
      2011), appeal denied, 40 A.3d 1236 (Pa. 2012)].

             On January 22, 2013, [Appellant] filed a pro se petition
      under the Post-Conviction Relief Act (PCRA).      Counsel was
      appointed    and,   on     September    24,   2014,   filed   a
      [Turner/Finley3] “no merit” letter and motion to withdraw as
      counsel.    On January 29, 2015, [the PCRA court] sent
      [Appellant] notice of its intent to deny and dismiss his PCRA
      petition without a hearing pursuant to Pa.R.Crim.P. 907 (907
      Notice).

PCRA Court Opinion, 9/9/2015, at 1-2 (citations and footnotes removed).

      Appellant pro se filed a response to the 907 notice, objecting to the

court’s    intent   to   dismiss   his   petition   and   asserting   PCRA   counsel’s

ineffectiveness. On March 13, 2015, the PCRA court dismissed Appellant’s




3
 Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth
v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).


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petition and permitted counsel to withdraw.        This timely-filed appeal

followed.4

      On appeal, Appellant challenges the PCRA court’s decision to permit

counsel to withdraw and the court’s conclusion that Appellant’s issues were

without merit.5   As such, we will address these claims mindful of the

following standard.   “Our standard of review of a [PCRA] court order

granting or denying relief under the PCRA calls upon us to determine

“whether the determination of the PCRA court is supported by the evidence

of record and is free of legal error.’” Commonwealth v. Barndt, 74 A.3d

185, 192 (Pa. Super. 2013) (quoting Commonwealth v. Garcia, 23 A.3d

1059, 1061 (Pa. Super. 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 (Pa. Super. 2007).


4
  Both Appellant and the PCRA court complied with the mandates of
Pa.R.A.P. 1925.
5
  We observe that the issues presented and argued within Appellant’s brief
are different from those raised in his concise statement of errors complained
of on appeal, which are different from the issues raised in his pro se
response to the PCRA court’s 907 notice and his pro se PCRA petition.
Consequently, in accordance with our case law, we will only review those
issues which have been properly preserved and argued within his brief. See
Commonwealth v. Butler, 812 A.2d 631, 634 (Pa. 2002) (“[A]ny issues
not raised in a Rule 1925(b) statement are waived.”).               See also
Commonwealth v. Montalvo, 641 A.2d 1176, 1184 (Pa. Super. 1994)
citing Commonwealth v. Rodgers, 605 A.2d 1228, 1239 (Pa. Super. 1992)
(“[W]e must deem an issue abandoned where it has been identified on
appeal but not properly developed in the brief.”).



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      Appellant   contends    PCRA    counsel’s    Turner/Finley     letter   was

insufficient and failed to meet the requirements as set forth by our courts.

Specifically, Appellant contends counsel’s letter failed to address all issues

raised in Appellant’s pro se petition,6 did not state with specificity which files

and transcripts counsel reviewed, and did not raise additional meritorious

issues that were not included in the pro se petition, but “were present on the

face of the record.” Appellant’s Brief at 12-15.

      The procedural requirements set forth in Turner/Finley, govern

withdrawal by counsel from representation on PCRA appeals. To withdraw

from representation at the PCRA court level,

      counsel must review the case zealously. Turner/Finley counsel
      must then submit a “no-merit” letter to the trial court … detailing
      the nature and extent of counsel’s diligent review of the case,
      listing the issues which the 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.

Commonwealth v. Wrecks, 931 A.2d 717, 721 (Pa. Super. 2007).

      In   responding    to   Appellant’s   contention   that   PCRA    counsel’s

Turner/Finley letter failed to meet the applicable standards, the PCRA

court stated the following:


6
 While Appellant failed to state within his brief which issues PCRA counsel
neglected to address, he has done so in other filings and the PCRA court has
addressed this issue. As such, we will not find waiver.

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      In the instant case, PCRA counsel complied with all of the
      requirements set forth in Turner/Finley.             Contrary to
      [Appellant’s] assertion, PCRA counsel’s Finley letter adequately
      detailed the nature and extent of her review: “Pursuant to [PCRA
      counsel’s] appointment, [PCRA counsel] reviewed the Quarter
      Sessions’ file in Room 206, Criminal Justice Center, [Appellant’s]
      pro se PCRA petition, the docket entries and exchanged
      correspondence with [Appellant].” Throughout the Finley letter,
      PCRA counsel makes reference to, and cites to the record.
      [Appellant] claims that PCRA counsel failed to adequately detail
      the nature of her review by failing to state which transcripts she
      reviewed specifically; yet fails to cite to any authority requiring
      PCRA counsel to detail specifically which transcripts were
      reviewed. The citations to the trial record in counsel’s Finley
      letter provide sufficient support for counsel’s review of the trial
      transcripts. PCRA counsel stated that she reviewed the entire
      Quarter Sessions’ file, [Appellant’s] pro se PCRA petition, and all
      of the docket entries in this case. PCRA counsel also provided a
      summary of the facts of this case, and cited applicable case law
      to explain why [Appellant’s] claims lacked merit. Therefore,
      PCRA counsel did in fact adequately review the record.

PCRA Court Opinion, 9/9/2015, at 15-16.

      After a review of counsel’s Turner/Finley letter, we agree with the

PCRA court that counsel provided ample detail regarding her review of

Appellant’s case.       Thus, we conclude the PCRA court did not err by

concluding that counsel’s Turner/Finley letter was adequate to permit

withdrawal on this basis.

      Appellant also argues that PCRA counsel’s petition was deficient

because it failed to address two issues he raised in his pro se petition.

Specifically, Appellant contends counsel failed to address trial counsel’s

ineffectiveness   for   failing   to   object   to   misstatements made   by   the

Commonwealth and for failing to object to the trial court’s jury instruction on


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accomplice testimony.    In response, the PCRA court directed Appellant to

counsel’s Turner/Finley letter where she addressed the “misstatements”

made by the Commonwealth and detailed the reasoning the issue held no

merit.7

      The PCRA court did concede that counsel failed to address the issue

raised in Appellant’s pro se petition regarding the jury instruction. We note

at the outset that accepting PCRA counsel’s Turner/Finley letter when she

failed to address all of Appellant’s issues raised in his pro se petition was a

clear error. See Wrecks, 931 A.2d at 721 (providing counsel must, among

other requirements, list “the issues which the petitioner wants to have

reviewed, explaining why and how those issues lack merit … 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”). In response to its absence, the PCRA

court found that the omission was harmless because the issue lacked merit.

As such, the PCRA court concluded that Appellant was not prejudiced by its




7
  See PCRA Court Opinion, 9/9/2015, at 15 (citing Turner/Finley Letter,
9/24/2014, at 5 (pages unnumbered) (“Second, [Appellant] claims in
paragraphs seven, eight, twelve, twenty-nine, and thirty of his pro se PCRA
petition that the prosecutor was guilty of misconduct when he made certain
arguments to the jury.”)). PCRA counsel continued, averring she had
analyzed these statements and determined the issue surrounding these
statements held no merit. Id. at 5-7 (pages unnumbered).


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absence. PCRA court opinion, 9/9/2015 at 16.8 We agree. After reviewing

the court’s thorough analysis of the issue, we are satisfied with the court’s

conclusion. Accordingly, there would be no point in remanding for counsel to

address this issue. This claim fails.

      Lastly, Appellant argues the PCRA court erred in accepting PCRA

counsel’s no-merit letter, when meritorious issues existed and the court

failed to conduct its own independent examination of the record. Appellant’s

Brief at 12. A review of the record directly contradicts Appellant’s assertion.

Along with its 907 notice dismissing Appellant’s petition, the PCRA court

included an opinion setting forth its own analysis and included its own

reasoning why the issues lacked merit. See Notice Pursuant to Pennsylvania

Rule of Criminal Procedure 907, 1/29/2015, at 2-9.9        The PCRA court also

stated within its opinion pursuant to Pa.R.C.P. 1925 that the court

“independently    reviewed    the   record    and   concluded   thereafter   that

[Appellant’s] PCRA petition was meritless.” PCRA court opinion, 9/9/2015,

at 16. We are not persuaded by Appellant’s averment that other meritorious


8
  In addressing this issue within its opinion, the PCRA court found that the
instruction closely mirrored that of the Pennsylvania Standard Suggested
Jury Instruction on accomplice testimony and that it favored Appellant “in
explaining to the jury that it should consider the accomplice testimony of
Jermaine Rippy, who implicated [Appellant in the] crime, with caution.”
PCRA Court Opinion, 9/9/2015, at 10-11.

9
  Although the PCRA court did not include an analysis of Appellant’s issue
regarding trial counsel ineffectiveness for failing to object to the trial court’s
jury instruction within its 907 notice, the court did thoroughly address this
issue within its 1925 opinion.

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issues existed when Appellant has only listed issues he contends could have

been raised, but fails to provide any meaningful arguments to support their

merit. We find the PCRA court adequately examined the record and did not

wholesale adopt counsel’s Turner/Finley letter. No relief is due.

      Accordingly,   we   find   that   the   PCRA   court   properly   dismissed

Appellant’s petition, and as such, we affirm.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.

Prothonotary



Date: 8/4/2016




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