J-S73006-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                 IN THE SUPERIOR COURT OF
                                                    PENNSYLVANIA
                        Appellee

                   v.

EMRU KEBEDE,

                        Appellant                  No. 1228 MDA 2014


                 Appeal from the PCRA Order June 27, 2014
             In the Court of Common Pleas of Lancaster County
            Criminal Division at No(s): CP-36-CR-0003556-2007


BEFORE: BOWES, WECHT, and MUSMANNO, JJ.

MEMORANDUM BY BOWES, J.:                      FILED DECEMBER 04, 2014

      Emru Kebede appeals from the June 27, 2014 order denying him PCRA

relief. Counsel has filed a petition to withdraw. We grant that petition and

affirm.

      On May 2, 2007, Appellant, who was sixteen years old, met with

Abraham Sanchez, Lorenzo Schrijver, and Robert Michael Baker at the home

of Baker’s fiancée, Susan Bass. The four friends had a firearm and decided

to either commit a burglary or break into a car in order to obtain money for

a marijuana-selling enterprise.

      The four cohorts drove around to scout for a suitable location when

Schrijver spied a house located in an isolated area and an elderly man,

Ray Diener, seated alone inside. After parking the car, Schrijver approached

the house and rang the doorbell while Appellant, Baker, and Sanchez hid.
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When Mr. Diener answered the door, Schrijver asked to use the telephone

and told the victim that his car was broken down. Mr. Diener returned inside

his house to retrieve his cellular telephone.    Schrijver handed the gun to

Sanchez and prepared to attack the victim.

      When the victim returned, Schrijver took the phone while Sanchez

revealed himself, pointed the gun at Mr. Diener, and told him to lie down.

The victim grabbed the gun and screamed. While the victim and Sanchez

wrestled for the weapon, it discharged and a bullet hit the victim in the hip.

Mr. Diener fell and began to cry and plead for help. Appellant and Baker fled

toward the car. Schrijver stayed behind and told Sanchez to shoot the man

again; Sanchez complied.

      By that time, the victim’s wife, Barbara, had awakened due to her

husband’s screams and came outside. She saw her husband on the ground

and then ran inside her home, locked the doors, called the police, and

reported that two men were attempting to enter her home. After Sanchez

shot the victim a third time, the four men left the scene in their car.

      On September 10, 2010, Appellant was found guilty of second-degree

murder, and he subsequently was sentenced to the applicable mandatory

sentence of life imprisonment without parole. On direct appeal, we affirmed,

and our Supreme Court denied allowance of appeal.          Commonwealth v.

Kebede, 23 A.3d 1080 (Pa.Super. 2011) (unpublished memorandum),

appeal denied, 27 A.3d 1015 (Pa. 2011).


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          Appellant filed a timely pro se PCRA petition, counsel was appointed

and filed an amended petition. Therein, Appellant raised one position: that

his sentence of life imprisonment without parole was unconstitutional under

Miller v. Alabama, 132 S.Ct. 2455 (2012) (mandatory sentence of life

imprisonment without parole constitutes cruel and unusual punishment if

homicide offender is a minor when crime occurred).            Appellant maintained

that Miller applied retroactively.        This appeal followed the denial of PCRA

relief.

          Initially, we note that appellate counsel has petitioned this Court to

withdraw pursuant to the mandates of Commonwealth v. Turner, 544

A.2d 927 (Pa. 1988), and Commonwealth v. Finley, 550 A.2d 213

(Pa.Super. 1988) (en banc).           These cases govern the procedure for

withdrawal of court-appointed counsel for purposes of post-conviction

proceedings.      “Independent review of the record by competent counsel is

required       before   withdrawal   is     permitted”   in   the   PCRA   setting.

Commonwealth v. Widgins, 29 A.3d 816, 817 (Pa.Super. 2011) (quoting

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

independent review requires:

          1) A “no-merit” letter by PCRA counsel detailing the nature and
          extent of his review;

          2) The “no-merit” letter by PCRA counsel listing each issue the
          petitioner wished to have reviewed;

          3) The PCRA counsel's “explanation”, in the “no-merit” letter, of
          why the petitioner's issues were meritless;

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     4) The . . . court conducting its own independent review of the
     record; and

     5) The . . . court agreeing with counsel that the petition was
     meritless.

Widgins, supra at 818 (quoting Pitts, supra at 876 n.1). In addition,

           In Commonwealth v. Friend, 896 A.2d 607 (Pa.Super.
     2006), [abrogated on other grounds by Pitts, supra.] this Court
     had imposed an additional requirement for counsel seeking to
     withdraw in collateral proceedings:

           . . . .[W]e here announce a further prerequisite
           which must hereafter attend an application by
           counsel to withdraw from representing a PCRA
           petitioner, namely, that PCRA counsel who seeks
           to withdraw must contemporaneously serve a
           copy on the petitioner of counsel's application
           to withdraw as counsel, and must supply to the
           petitioner both a copy of the “no-merit” letter
           and a statement advising the petitioner that, in
           the event that the court grants the application
           of counsel to withdraw, he or she has the right
           to proceed pro se or with the assistance of
           privately retained counsel.

     Id. at 614 (emphasis in original).

Widgins, supra at 818.     This additional requirement, which has not been

abrogated by our Supreme Court, is still applied by the Superior Court. Id.;

see also Commonwealth v. Rykard, 55 A.3d 1177 (Pa.Super. 2012).

     In the present case, counsel has filed a brief and a petition to withdraw.

In his petition to withdraw, counsel outlines that he carefully reviewed the

record, researched all issues, and concluded that there are no meritorious

questions to present on appeal.      The filed brief, which is labeled as a

Turner/Friend statement, constitutes a no-merit letter, sets forth the issue

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Appellant wants to assert, and establishes the lack of merit of that issue.

Attached to the brief is a copy of a letter that counsel sent to Appellant. That

letter details that counsel sent Appellant a copy of the brief, told Appellant

that counsel was seeking to withdraw, and advised Appellant that he had the

right to represent himself and proceed pro se or to hire a lawyer.      Hence,

counsel has satisfied the mandates applicable to him.

      We now examine the issue raised on appeal: “Whether the post-

conviction court erred when it denied relief on Appellant's claim that the

mandatory sentence of life imprisonment without parole was imposed

illegally?” Appellant’s brief at 2. Before reaching its merits, we outline the

applicable standard of appellate review:

            On appeal from the denial of PCRA relief, our standard and
      scope of review is limited to determining whether the PCRA
      court's findings are supported by the record and without legal
      error.” Commonwealth v. Edmiston, 65 A.3d 339, 345 (Pa.
      2013). “Our scope of review is limited to the findings of the
      PCRA court and the evidence of record, viewed in the light most
      favorable to the prevailing party at the PCRA court level.”
      Commonwealth v. Koehler, 614 Pa. 159, 36 A.3d 121, 131
      (2012).    “The PCRA court's credibility determinations, when
      supported by the record, are binding on this Court.”
      Commonwealth v. Spotz, 610 Pa. 17, 18 A.3d 244, 259
      (2011). “However, this Court applies a de novo standard of
      review to the PCRA court's legal conclusions.” Id.

Commonwealth v. Medina, 92 A.3d 1210, 1214-15 (Pa.Super. 2014).

      In the present case, Appellant was a juvenile when he committed the

crime in question and was subject to a mandatory sentence of life

imprisonment without parole.    As noted, Miller prohibits the imposition of


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such a sentence on a juvenile homicide offender.               However, as counsel

points out in his brief, Miller has been denied retroactive application, and

hence, that decision does not apply to a juvenile PCRA petitioner.

Commonwealth v. Cunningham, 81 A.3d 1 (Pa. 2013). Thus, Appellant

cannot obtain relief under Miller.

      We have conducted an independent review of the record and agree

that there are no meritorious issues that can be raised in this appeal.

Hence, we affirm.

      Petition    of   R.   Russell   Pugh,   Esquire,   to   withdraw   is   granted.

Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/4/2014




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