J-S77039-18


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,            :     IN THE SUPERIOR COURT OF
                                         :           PENNSYLVANIA
                 Appellee                :
                                         :
                    v.                   :
                                         :
ANTONIO WHITE VUNDEL,                    :
                                         :
                 Appellant               :      No. 1841 EDA 2017

                  Appeal from the PCRA Order May 3, 2017
             in the Court of Common Pleas of Delaware County
            Criminal Division at No(s): CP-23-CR-0001475-2012

BEFORE: OTT, J., DUBOW, J. and STRASSBURGER, J.*

MEMORANDUM BY STRASSBURGER, J.:                FILED FEBRUARY 13, 2019

     Antonio White Vundel (Appellant) appeals from the May 3, 2017 order

dismissing his petition filed under the Post Conviction Relief Act (PCRA), 42

Pa.C.S. §§ 9541-9546, following an evidentiary hearing. Counsel has filed a

motion to withdraw, as well as an Anders brief.1          We affirm the PCRA

court’s order and grant counsel’s motion to withdraw.

     On March 15, 2013, a jury convicted Appellant of possession of an

instrument of crime and first-degree murder in connection with the fatal



1 Counsel filed a petition to withdraw and a brief pursuant to Anders v.
California, 386 U.S. 738 (1997). However, a Turner/Finley no-merit
letter is the appropriate filing when counsel seeks to withdraw from
representation on appeal from the denial of PCRA relief. See
Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth v.
Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc). Because an Anders brief
provides greater protection, we may accept an Anders brief in lieu of a
Turner/Finley no-merit letter in a collateral appeal. Commonwealth v.
Fusselman, 866 A.2d 1109, 1111 n.3 (Pa. Super. 2004).


* Retired Senior Judge appointed to the Superior Court.
J-S77039-18

shooting of Appellant’s acquaintance, Melvin Stewart.            Prior to trial,

Appellant, through Craig Hosay, Esquire, his privately-retained counsel, filed

a motion to suppress three statements Appellant made to police following

Stewart’s death.

      By way of background, we provide the following summary of the trial

court’s factual findings from the suppression hearing. See Commonwealth

v. White, 106 A.3d 159 (Pa. Super. 2014) (unpublished memorandum at

*2-7) (setting forth the trial court’s findings of fact). Stewart was shot and

killed in the early morning hours of November 1, 2011. Later that day, as

part of their investigation into Stewart’s known associates, Upper Darby

Township police detectives went to Appellant’s home to see if he had

information about the shooting.    Following an interview in his living room,

Appellant signed a statement memorializing his answers.

      After obtaining information from others that Appellant may have been

involved in the shooting, Detective Silberstein served a search warrant at

Appellant’s house on November 5, 2012.         Appellant’s mother, Jacqueline

Douglas, who lived in the home, permitted the officers to enter the home.

According   to   Detective   Silberstein,   Appellant   voluntarily   agreed   to

accompany the officers to the station to discuss the shooting. Appellant and

Detective Silberstein rode in the backseat of an unmarked non-caged police

car to the station.   Appellant was neither handcuffed nor placed under

arrest.


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        Once at the station, Detective Silberstein interviewed Appellant in a

conference room.       Detective Silberstein provided Appellant with a form

advising him that he was free to leave at any time, which Appellant signed.

Appellant got up several times to use the bathroom without an escort, and

returned on his own accord by knocking on the door to be let back into the

room.     Over the next six hours, Appellant provided a written statement

regarding the shooting (First Statement). In the First Statement, Appellant

stated that he was at home when he heard a gunshot, and drove to the

scene and discovered Stewart’s slain body.

        After the First Statement was signed, Detective Silberstein was

advised that a witness identified Appellant as the shooter, and he placed

Appellant under arrest.       At that point, the officers frisked Appellant,

inventoried his personal items, moved him to the interview room, and

advised him of his rights pursuant to Miranda v. Arizona, 384 U.S. 436

(1966).     Without invoking any of his rights, Appellant provided another

statement to police (Second Statement), and this time claimed he was

present when Stewart was shot, but someone named Yin shot Stewart,

handed Appellant the gun afterwards, and then retrieved the gun and

disappeared.

        Later in the evening, police advised Appellant of his Miranda rights for

a second time, and told him another witness had identified him as the




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shooter.   Subsequently, Appellant confessed to shooting Stewart, and

provided a final statement to police (Third Statement).

      Attorney Hosay did not call any witnesses to testify at the suppression

hearing. At the conclusion of the hearing, the trial court denied Appellant’s

motion to suppress, and the case proceeded to trial.         On April 19, 2013,

Appellant was sentenced to life in prison without parole followed by a six-

month to five-year sentence of incarceration.

      Appellant filed a direct appeal, challenging, inter alia, the denial of his

suppression motion. This Court affirmed Appellant’s judgment of sentence

on August 14, 2014, concluding that            based upon the trial court’s

determinations that Appellant had left his house willingly to accompany

police to the station to discuss the shooting, was free to leave at any point,

and voluntarily chose to answer questions, Miranda’s protections were not

applicable because Appellant was not subject to custodial interrogation at

the time he provided his First Statement. See White, supra. On February

19, 2015, our Supreme Court denied Appellant’s petition for allowance of

appeal.     Commonwealth         v.   White,    110   A.3d    997   (Pa.   2015)

(unpublished).

      On May 4, 2016, Appellant timely filed a counseled PCRA petition,

averring that Attorney Hosay rendered ineffective assistance of counsel by

not calling Appellant and his mother, Jacqueline Douglas, to testify regarding

Appellant’s interactions with police prior to and during the taking of the First


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Statement on November 5, 2011. PCRA Petition, 5/4/2016, at 2. The PCRA

court conducted a hearing on Appellant’s petition on October 28, 2016. At

the hearing, Appellant, Appellant’s mother, and Attorney Hosay testified, and

the Commonwealth presented Detective Silberman as a rebuttal witness.

Following briefing by the parties, the PCRA court entered an order denying

Appellant’s petition.

      Appellant pro se filed a timely notice of appeal.    Appellant’s PCRA

counsel, Carson Morris, Esquire, filed a motion to withdraw, averring that he

was retained solely to represent Appellant at the hearing and was barred

from representing Appellant due to his new employment.      The PCRA court

granted Attorney Morris’s motion.      Appellant requested court-appointed

counsel, and in August 2017, J. Anthony Foltz, Esquire, entered his

appearance on Appellant’s behalf.     Both Appellant and the PCRA court

complied with Pa.R.A.P. 1925.

      Subsequently, Attorney Foltz filed an application to withdraw his

appearance before this Court, along with an Anders brief, concluding that

there were no non-frivolous issues to be raised on appeal. Appellant filed a

response pro se, acknowledging that counsel properly raised the issue

Appellant wanted to present, but maintaining that Attorney Foltz failed to

investigate adequately such issue, because if he had, he would have seen

that the record demonstrated that the testimony of Appellant and his mother

was credible and the testimony of Detective Silberman and Attorney Hosay


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was not credible. Response to Counsel’s Petition to Withdraw and Anders

Brief, 9/25/2018, at 1-4.2

      Before we may address the potential merit of Appellant’s claim, we

must determine if counsel has complied with the technical requirements of

Turner and Finley.

      ... Turner/Finley counsel must review the case zealously.
      Turner/Finley counsel must then submit a “no-merit” … brief
      on appeal to this 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.

      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, … this
      Court … must then conduct its own review of the merits of the
      case. If [this Court] agrees with counsel that the claims are

2
  Appellant initially requested an extension of time to respond to Attorney
Foltz’s Anders brief and application to withdraw. Pro se Application for
Extension, 9/13/2018, at 1. Before any order was entered by this Court,
Appellant filed the response referenced supra, wherein he also requested
that the Superior Court enter an order permitting him to file a brief pro se.
Response to Counsel’s Petition to Withdraw and Anders Brief, 9/25/2018, at
4. This Court entered an order permitting Appellant to file a response to
counsel’s petition to withdraw and Anders brief within 30 days. Order,
10/15/2018, at 1. Appellant filed neither a brief nor any further filings after
the entry of the October 15, 2018 order.
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      without merit, [this Court] will permit counsel to withdraw and
      deny relief. By contrast, if the claims appear to have merit, [this
      Court] will deny counsel’s request and grant relief, or at least
      instruct counsel to file an advocate’s brief.

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

(citations omitted).

      We are satisfied that counsel has complied with the technical

requirements of Turner and Finley. Therefore, we will consider the

substantive issue contained in counsel’s Anders brief and Appellant’s

response: whether the PCRA court erred in denying Appellant’s PCRA petition

based upon Attorney Hosay’s failure to call Appellant and his mother as

witnesses to testify at the suppression hearing.     See Anders Brief at 5;

Response to Counsel’s Petition to Withdraw and Anders Brief, 9/25/2018, at

2.

      On review of orders denying PCRA relief, our standard is to determine

whether the PCRA court’s ruling is free of legal error and supported by the

record.   Commonwealth v. Orlando, 156 A.3d 1274, 1280 (Pa. Super.

2017) (citation omitted).     To prevail on a petition for PCRA relief, a

petitioner must plead and prove, by a preponderance of the evidence, that

his conviction or sentence resulted from one or more of the circumstances

enumerated in 42 Pa.C.S. § 9543(a)(2).          These circumstances include

ineffectiveness of counsel, which “so undermined the truth-determining

process that no reliable adjudication of guilt or innocence could have taken

place.” 42 Pa.C.S. § 9543(a)(2)(ii).

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      “[C]ounsel is presumed to be effective, and the petitioner bears the

burden of proving to the contrary.” Commonwealth v. Brown, 196 A.3d

130, 150 (Pa. 2018).

         It is well-established that counsel is presumed to have
         provided effective representation unless the PCRA
         petitioner pleads and proves all of the following: (1) the
         underlying legal claim is of arguable merit; (2) counsel’s
         action or inaction lacked any objectively reasonable basis
         designed to effectuate his client’s interest; and (3)
         prejudice, to the effect that there was a reasonable
         probability of a different outcome if not for counsel’s error.

      The PCRA court may deny an ineffectiveness claim if the
      petitioner’s evidence fails to meet a single one of these prongs.
      Moreover, a PCRA petitioner bears the burden of demonstrating
      counsel’s ineffectiveness.

Commonwealth v. Franklin, 990 A.2d 795, 797 (Pa. Super. 2010)

(internal citations omitted).

      In cases involving the failure to call a potential witness, a petitioner

satisfies the underlying-merit and prejudice prong

      by establishing that: (1) the witness existed; (2) the witness
      was available to testify for the defense; (3) counsel knew of, or
      should have known of, the existence of the witness; (4) the
      witness was willing to testify for the defense; and (5) the
      absence of the testimony of the witness was so prejudicial as to
      have denied the defendant a fair trial.... To demonstrate []
      prejudice, a petitioner must show how the uncalled witnesses’
      testimony would have been beneficial under the circumstances of
      the case. Counsel will not be found ineffective for failing to call a
      witness unless the petitioner can show that the witness’s
      testimony would have been helpful to the defense. A failure to
      call a witness is not per se ineffective assistance of counsel for
      such decision usually involves matters of trial strategy.

Commonwealth v. Matias, 63 A.3d 807, 810-11 (Pa. Super. 2013) (en

banc) (internal quotation marks and citations omitted).
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      In the instant case, at the PCRA evidentiary hearing, Appellant’s

mother testified that around 8 a.m. on November 5, 2011, eight to ten

police officers came to her house, knocked on the door, and demanded to

know whether Appellant was home. N.T., 3/14/2013, at 24-28. According

to Appellant’s mother, they did not present a warrant, but the officers

entered the home. Id. at 32. Several officers stayed with her on the first

floor while the rest went upstairs, including an officer with his gun drawn.

Id. at 26-28. The officers reappeared, leading Appellant by the hood on his

sweatshirt down the stairs, outside, and into the back of a police car. Id. at

29-32.   She claims she provided all of this information to Attorney Hosay

prior to the suppression hearing, she was expecting to testify at the hearing,

and Attorney Hosay did not provide her with any reason why he decided not

to call her on the day of the hearing. Id. at 40-55.

      Also at the evidentiary hearing, Appellant testified that he was

sleeping upstairs when police officers, including one with his gun drawn,

barged into his room, threw clothes at him, and told him to put on the

clothes because he was coming to the station. Id. at 66-70. According to

Appellant, one officer grabbed him by his hood, and put him into the police

car. Id. He acknowledged that he signed the non-custodial rights form, but

claims it was not explained to him, he did not know what he was signing, he

was told he could not leave, and he was escorted by an officer every time he

went to the bathroom over the course of the day. Id. at 70-80. Appellant


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stated he explained the foregoing to Attorney Hosay, who told him he was

not going to call him to testify at the suppression hearing because his

testimony might harm him at trial. Id. at 81-84, 87-91.

     Attorney Hosay, on the other hand, denied that Appellant and his

mother ever told him the version of events consistent with their testimony,

including that officers had a gun drawn or led Appellant out by his hood. Id.

at 104-132.   He said if they had, he certainly would have called them to

testify at the hearing. Id. He stated that he interviewed both Appellant and

his mother several times, and they never told him such details or gave any

indication that he may have had a basis to argue that Appellant was in

custody at the time he gave the First Statement. Id. Attorney Hosay also

testified that his notes from the interviews did not contain any mention of

such facts. Id. at 135, 145.

     Detective Silberstein testified as a rebuttal witness, stating that there

were only about six officers at the house on November 5, 2011, Appellant’s

mother gave them permission to go upstairs to talk to Appellant, none of the

officers had a gun raised or displayed, Appellant walked down the stairs on

his own accord, the police did not order him to come to the station, he

voluntarily agreed to go to the station, and his freedom to leave was not

restrained at any time up until he was arrested. Id. at 156-73.

     In an exhaustive opinion, the PCRA court thoroughly analyzed the

testimony at the PCRA evidentiary hearing, and concluded that Attorney


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Hosay was not ineffective for choosing not to call Appellant and his mother

as witnesses at the suppression hearing. PCRA Court Opinion, 12/1/2017, at

23. Specifically, the PCRA Court found the testimony of Appellant and his

mother to be incredible, including their testimony that prior to the

suppression hearing they told Attorney Hosay the facts testified to at the

PCRA hearing, and instead credited the testimony of Attorney Hosay that he

had no basis to believe that Appellant and his mother had evidence to

contradict the testimony of police or support a claim that Appellant was in

custody prior to or at the time of the First Statement.     Id. at 23-30.   In

short, the PCRA court determined that Attorney Hosay “cannot be ineffective

for failing to introduce evidence that neither [Appellant] nor his mother ever

told [him].”   Id. at 27 (citing Commonwealth v. Uderra, 706 A.2d 334,

340 (Pa. 1998) (“Appellant’s own failure to cooperate with counsel in order

to apprise him of allegedly relevant information cannot now provide a basis

for ineffectiveness claims.”); Commonwealth v. Bond, 819 A.2d 33, 45-46

(Pa. 2002) (“Counsel cannot be found ineffective for failing to introduce

information uniquely within the knowledge of the defendant and his family

which is not provided to counsel.”).

      In his response to the Anders brief and petition to withdraw,

Appellant essentially urges us to ignore the PCRA court’s credibility findings

and make our own based upon the cold record, thereby crediting the

testimony of him and his mother.            Response to Counsel’s Petition to


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Withdraw and Anders Brief, 9/25/2018, at 2. This we cannot do. “A PCRA

court’s credibility findings are to be accorded great deference,” and, if the

findings are supported by the record, they are binding upon a reviewing

court.     Commonwealth v. Orlando, 156 A.3d 1274, 1280 (Pa. Super.

2017) (citation omitted).     Based upon the testimony at the PCRA hearing

and the PCRA court’s credibility determinations, we discern no abuse of

discretion in the PCRA court’s decision to dismiss Appellant’s PCRA petition.

Because Appellant and his mother did not reveal facts in their interviews

with counsel supporting an argument that Appellant was in custody prior to

and at the time Appellant provided the First Statement, it was reasonable

not to present their testimony.      Moreover, based upon the PCRA court’s

credibility findings, Appellant failed to demonstrate prejudice. Indeed,

         [t]his case [] does not involve a trial judge who was convinced
         that the unpresented evidence raised a reasonable probability
         that the result might have been different. The PCRA judge here
         - the very judge who presided at [the suppression hearing] -
         reached the opposite conclusion after a thorough PCRA
         evidentiary hearing in this case.

Bond, 819 A.2d at 45.

         Furthermore, our independent review of the certified record does not

reveal any other meritorious issues. See Wrecks, 931 A.2d at 721.

Therefore, we affirm the PCRA court’s order dismissing Appellant’s PCRA

petition and grant counsel’s application to withdraw.

         Order affirmed. Application to withdraw granted.



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/13/19




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