J-S24007-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA              :   IN THE SUPERIOR COURT OF
                                           :        PENNSYLVANIA
                                           :
              v.                           :
                                           :
                                           :
 BRICE EDWARD BENNETT, JR.                 :
                                           :
                    Appellant              :   No. 244 MDA 2017

               Appeal from the PCRA Order January 30, 2017
                In the Court of Common Pleas of York County
            Criminal Division at No(s): CP-67-CR-0000822-2013


BEFORE: OLSON, J., KUNSELMAN, J., and MUSMANNO, J.

MEMORANDUM BY OLSON, J.:                                FILED JULY 09, 2018

      Appellant, Brice Edward Bennett, Jr., appeals from the January 30, 2017

order denying his first petition filed pursuant to the Post-Conviction Relief Act

(“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. In this appeal from the denial of PCRA

relief, Appellant’s court-appointed 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). As we conclude that counsel fulfilled the procedural

requirements of Turner/Finley, and this appeal is without merit, we grant

counsel’s petition to withdraw as counsel and affirm the PCRA court’s order

denying Appellant’s PCRA petition.

      The factual background and procedural history of this case are as

follows. Appellant left a Giant grocery store without paying for several meat
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items which were hidden in his jacket.            On February 26, 2013, the

Commonwealth charged Appellant via criminal information with retail theft.1

On July 12, 2013, Appellant was convicted of that offense. On October 30,

2013, the trial court sentenced Appellant to 18 to 36 months’ imprisonment.

This Court affirmed the judgment of sentence and our Supreme Court denied

allowance of appeal. Commonwealth v. Bennett, 107 A.3d 228, 2014 WL

10575355 (Pa. Super. 2014) (unpublished memorandum), appeal denied, 113

A.3d 278 (Pa. 2015).

        On April 23, 2015, Appellant filed a pro se PCRA petition. Counsel was

appointed and filed an amended petition.         On January 30, 2017, at the

conclusion of an evidentiary hearing, the PCRA court denied the petition. This

timely appeal followed.2

        Counsel presents four issues in his Turner/Finley letter:


        1. Whether counsel was ineffective in failing to          have   a
           stenographer present at the preliminary hearing?

        2. Whether counsel was ineffective in failing to file a suppression
           motion based upon an illegal arrest?
____________________________________________


1   18 Pa.C.S.A. § 3929(a)(1).

2 Appellant failed to file a concise statement of errors complained of on appeal
as ordered by the PCRA court. See Pa.R.A.P. 1925(b). Because counsel filed
a Turner/Finley letter, we decline to find waiver on this basis.             Cf.
Commonwealth v. Lilley, 978 A.2d 995, 998 (Pa. Super. 2009) (declining
to find waiver when counsel filed a brief pursuant to Anders v. California,
386 U.S. 738 (1967) and Commonwealth v. McClendon, 434 A.2d 1185
(Pa. 1981)).



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       3. Whether counsel was ineffective in failing to object to the
          [grading] of the offense as a felony . . . ?

       4. Whether counsel was ineffective in failing to object at the time
          of sentencing to a 1982 conviction referenced in the pre-
          sentence report?

Turner/Finley Brief at 1-2.3

       Prior to addressing the merits of the issues raised in counsel’s

Turner/Finley letter, we must determine whether he met the procedural

requirements to withdraw as counsel. Counsel seeking to withdraw in PCRA

proceedings

       must review the case zealously. Turner/Finley counsel must
       then submit a “no-merit” letter to the PCRA court, or brief on
       appeal to this Court, detailing the nature and extent of counsel’s
       diligent review of the case, listing the issues which 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.


____________________________________________


3 Appellant filed a response to counsel’s Turner/Finley letter in which he
raises several ineffective assistance of counsel claims not addressed in
counsel’s letter. These additional ineffective assistance of counsel claims,
however, were not included in Appellant’s amended PCRA petition.
Accordingly, these issues are waived. See Pa.R.A.P. 302(a).

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Commonwealth v. Muzzy, 141 A.3d 509, 510–511 (Pa. Super. 2016)

(cleaned up). In this case, counsel fulfilled the procedural requirements for

withdrawing as PCRA counsel.

       “When reviewing the denial of a PCRA petition, our standard of review

is limited to examining whether the PCRA court’s determination is supported

by evidence of record and whether it is free of legal error.” Commonwealth

v. Jordan, 182 A.3d 1046, 1049 (Pa. Super. 2018) (citation omitted). The

four   issues   raised    in   counsel’s       Turner/Finley   letter   challenge   the

effectiveness of Appellant’s trial counsel.4

       “[T]he Sixth Amendment to the United States Constitution and Article I,

[Section] 9 of the Pennsylvania Constitution, [entitle a defendant] to effective

counsel. This right is violated where counsel’s performance so undermined

the truth-determining process that no reliable adjudication of guilt or

innocence could have taken place.” Commonwealth v. Simpson, 112 A.3d

1194, 1197 (Pa. 2015) (cleaned up).              “Counsel is presumed to have been

effective.” Commonwealth v. Andrews, 158 A.3d 1260, 1263 (Pa. Super.

2017). To prevail on an ineffective assistance of counsel claim, a “petitioner

must plead and prove that: “(1) his underlying claim is of arguable merit; (2)

the particular course of conduct pursued by counsel did not have some



____________________________________________


4 Appellant represented himself at trial; however, he was represented by
counsel prior to trial and after he was convicted. For convenience, we will
refer to this counsel as trial counsel.

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reasonable basis designed to effectuate his interests; and, (3) but for

counsel’s ineffectiveness, there is a reasonable probability that the outcome

of the challenged proceeding would have been different.” Commonwealth

v. Johnson, 179 A.3d 1153, 1158 (Pa. Super. 2018) (citation omitted). “A

petitioner’s failure to satisfy any prong of this test is fatal to the claim.”

Commonwealth v. Wholaver, 177 A.3d 136, 144 (Pa. 2018) (citation

omitted).

      The first issue in counsel’s Turner/Finley letter is whether trial counsel

was ineffective for failing to secure a stenographer for Appellant’s preliminary

hearing.    Appellant’s claim fails because he fails to show that he was

prejudiced by the lack of a stenographer at the preliminary hearing. Appellant

contends that the lack of a stenographer was prejudicial because the

responding police officer’s testimony at trial was inconsistent with his

testimony at the preliminary hearing. Trial counsel, however, testified that

there were no inconsistencies. N.T., 1/30/17, at 29. Moreover, the officer’s

testimony at trial was consistent with the affidavit of probable cause he

executed in this case. Hence, Appellant failed to plead and prove that his trial

counsel was ineffective for failing to secure a stenographer for the preliminary

hearing.

      The second issue in counsel’s Turner/Finley letter is whether trial

counsel was ineffective for failing to file a suppression motion. Appellant’s

underlying claim lacks arguable merit because Appellant points to no evidence


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that his arrest was illegal and/or that suppression of the stolen merchandise

was required by law.     The record reflects that a Giant cashier witnessed

Appellant take several meat products from the store without paying for them.

The cashier notified police who pursued Appellant and arrested him.          The

information provided by the cashier provided probable cause to arrest

Appellant.

      The third issue in counsel’s Turner/Finley letter is whether trial

counsel was ineffective for failing to argue that Appellant’s conviction was

improperly graded as a felony. Appellant’s underlying claim lacks arguable

merit because a third conviction for retail theft is graded as a felony even if

the two prior convictions for retail theft were summary offenses.        See 18

Pa.C.S.A. § 3929(b)(1)(iv); see also Commonwealth v. Mortimer, 514

A.2d 602, 603-605 (Pa. Super. 1986). As Appellant had two prior convictions

for retail theft, his conviction was properly graded as a felony.

      The final issue in counsel’s Turner/Finley letter is whether counsel was

ineffective for failing to object to the prosecutor referencing a 1982 conviction

at the sentencing hearing. Appellant contends that this conviction was invalid

because it was a result of perjury. Appellant’s underlying claim lacks arguable

merit because a defendant cannot collaterally attack a prior conviction at

sentencing. See Commonwealth v. Lewis, 743 A.2d 907, 910 (Pa. 2000).

      In sum, counsel complied with the procedural requirements for

withdrawing as counsel in this collateral appeal. The issues Appellant wished


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to pursue in his PCRA petition are without merit.    Accordingly, we grant

counsel’s petition to withdraw and affirm the order denying Appellant’s

petition.

      Petition to withdraw as counsel granted. Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 07/09/2018




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