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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.                          :
                                          :
                                          :
 JEREMIE ALAN BAKER                       :
                                          :
                     Appellant            :   No. 1857 MDA 2017

               Appeal from the PCRA Order October 6, 2017
    In the Court of Common Pleas of Adams County Criminal Division at
                      No(s): CP-01-CR-0000538-2014


BEFORE: STABILE, J., MURRAY, J., and MUSMANNO, J.

MEMORANDUM BY MURRAY, J.:                      FILED SEPTEMBER 21, 2018

      Jeremie Alan Baker (Appellant) appeals from the order denying his

petition filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A.

§§ 9541-9546.      In this appeal, 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 and affirm the

PCRA court’s order denying Appellant’s PCRA petition.

      The facts underlying this appeal stem from an incident that occurred

during the early morning hours of May 21, 2014, during which Appellant

entered the home of Sanjin and Rashmi Mohla and robbed them at gunpoint.

Appellant, who worked for Mr. and Mrs. Mohla, was aware that they regularly
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brought cash home at the end of each business day and kept it in their kitchen

or bedroom until Mrs. Mohla would deposit the funds at the bank the next day.

Following a jury trial, Appellant was convicted of one count each of burglary,

robbery, and criminal conspiracy to commit robbery,1 and sentenced to an

aggregate term of 11 to 22 years in prison. On October 21, 2016, this Court

affirmed the judgment of sentence.             Commonwealth v. Baker, 2016 WL

6135377 (Pa. Super. Oct. 21, 2016) (unpublished memorandum).

        On April 24, 2017, Appellant filed a pro se PCRA petition.     Attorney

Jamison Entwistle was appointed as counsel and filed an amended petition.

On August 8, 2017, the PCRA court issued its notice of intent to dismiss

Appellant’s petition pursuant to Rule 907 of the Pennsylvania Rules of Criminal

Procedure. Appellant did not file a response, and, on October 10, 2017, the

PCRA court denied the petition. This timely appeal followed.

        On appeal, this Court noted that although Appellant filed his appeal pro

se, there was no indication in the docket that his attorney had ever withdrawn

her appearance. Accordingly, this Court remanded the case to the PCRA court

to determine whether Appellant wished to proceed with current counsel or to

conduct a Grazier2 hearing if Appellant wished to proceed pro se.            On




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1   18 Pa.C.S.A. §§ 3502(a)(1), 3701(a)(1)(ii), and 903(a)(1).

2 Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1988) (requiring on-the-
record inquiry to determine whether waiver of counsel is knowing, intelligent,
and voluntary).

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February 12, 2018, a hearing was held in which Appellant indicated his desire

to be represented by counsel.

       On April 12, 2018, Attorney Entwistle filed a petition to withdraw with

this Court, attaching her Turner/Finley no-merit letter, with notice to

Appellant that he had the right to proceed pro se or retain private counsel.

Appellant filed an application for relief and a pro se response to the

Turner/Finley letter on May 8, 2018.             Appellant then filed a second

application for relief on May 11, 2018.3

       Counsel’s Turner/Finley no-merit letter raises two issues:

       1. Whether the PCRA [c]ourt erred in dismissing without [a]
          hearing Appellant’s PCRA [p]etition when he claims the
          Commonwealth withheld discovery and violated his
          constitutional rights under 42 Pa.C.S.A. § 9543(a)(2)(i)[?]

       2. Whether the PCRA [c]ourt erred in dismissing Appellant’s PCRA
          [petition] without [a] hearing when trial counsel was ineffective
          in failing to obtain discovery, specifically a photographic line-
          up, and trial counsel failed to advise Appellant on the existence
          of, or the implications of the same prior to trial[?]

Turner/Finley Brief at 4, 7. Appellant filed a pro se “Brief in Opposition to

Jamison Entwistle, Esq. Motion to Withdraw as Counsel” in response to

Attorney Entwistle’s Turner/Finley no-merit letter.

       In reviewing the denial of a PCRA petition, our review is limited to

examining whether the PCRA court’s findings are supported by the record and

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3 Appellant’s two applications for relief consisted of a motion to compel
discovery in which Appellant sought copies of transcripts and an application
for relief seeking discovery pursuant to Pa.R.Crim.P. 573(A). This Court
denied both applications for relief by order dated June 4, 2018.

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free of legal error. See Commonwealth v. Hanible, 30 A.3d 426, 438 (Pa.

2011). We view the findings of the PCRA court and the evidence of record in

the light most favorable to the prevailing party.    Id.   “The PCRA court’s

credibility determinations, when supported by the record, are binding on this

Court; however, we apply a de novo standard of review to the PCRA court’s

legal conclusions.” See Commonwealth v. Mason, 130 A.3d 601, 617 (Pa.

2015).

     Before we may review the merits of Appellant’s claims, we must

determine if counsel has satisfied the requirements to be permitted to

withdraw from further representation.        Pursuant to Turner/Finley, an

“[i]ndependent review of the record by competent counsel is required before

withdrawal [on collateral appeal] is permitted. Commonwealth v. Pitts, 981

A.2d 875, 876 n.1 (Pa. 2009). In Pitts, our Supreme Court explained that

such independent review requires proof of:

     1. A “no merit” letter by PC[R]A counsel detailing the nature and
        extent of his review;

     2. The “no merit” letter by PC[R]A counsel listing each issue the
        petitioner wished to have reviewed;

     3. The PC[R]A counsel’s “explanation”, in the “no merit” letter, of
        why the petitioner’s issues were meritless;

     4. The PC[R]A court conducting its own independent review of the
        record; and

     5. The PC[R]A court agreeing with counsel that the petition was
        meritless.




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Id. (citation and brackets omitted).        Further, PCRA counsel seeking to

withdraw in this Court must contemporaneously forward to the petitioner a

copy of the petition to withdraw that includes (i) a copy of both the no-merit

letter, and (ii) a statement advising the PCRA petitioner that, upon the filing

of counsel’s petition to withdraw, the petitioner has the immediate right to

proceed pro se, or with the assistance of privately retained counsel.

Commonwealth v. Muzzy, 141 A.3d 509, 511-12 (Pa. Super. 2016).

       [W]here 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
       the [C]ourt agrees with counsel that the claims are without merit,
       the [C]ourt will permit counsel to withdraw and deny relief. By
       contrast, if the claims appear to have merit, the [C]ourt 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) (citation

omitted).

       Here, in the Turner/Finley no-merit letter, Attorney Entwistle

described the extent of her review, identified the issues that Appellant sought

to raise, and explained why the issues lacked merit. In addition, Attorney

Entwistle has indicated that she provided Appellant with a notice of her

intention to seek permission to withdraw from representation, a copy of the

Turner/Finley no-merit letter, and advised Appellant of his rights in lieu of

representation. Motion to Withdraw as Counsel, 4/12/18, at 1-3 (unnumbered

pages). Thus, we conclude that Attorney Entwistle has substantially complied

with   the   requirements    necessary   to   withdraw   as   counsel.       See


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Commonwealth v. Karanicolas, 836 A.2d 940, 947 (Pa. Super. 2003)

(holding that substantial compliance with requirements to withdraw as counsel

will satisfy the Turner/Finley criteria).        We now independently review

Appellant’s claims to ascertain whether they entitle him to relief.

      In Appellant’s first issue, as raised in the Turner/Finley no-merit letter,

he asserts that the PCRA court erred in dismissing his petition where the

Commonwealth violated its obligations under Brady v. Maryland, 373 U.S.

83 (1963).    In Brady, the United States Supreme Court held that “the

suppression by the prosecution of evidence favorable to an accused upon

request violates due process where the evidence is material either to guilt or

to punishment, irrespective of the good faith or bad faith of the prosecution.”

Id. at 87. Our Supreme Court has held that “[t]o prove a Brady violation,

the defendant must show that (1) the prosecutor has suppressed evidence;

(2) the evidence whether exculpatory or impeaching, is helpful to the

defendant;    and   (3)    the   suppression      prejudiced   the     defendant.”

Commonwealth        v.    Busanet,   54   A.3d    35,   48   (Pa.    2012)   (citing

Commonwealth v. Pagan, 954 A.2d 270, 291 (Pa. 2008)). Finally, we note

that “[t]here is no Brady violation when the appellant knew, or with

reasonable diligence, could have uncovered the evidence in question.”

Commonwealth v. Paddy, 15 A.3d 431, 451 (Pa. 2011).

      The primary thrust of Appellant’s Brady claim concerns a photographic

lineup allegedly withheld that would have induced Appellant to enter into a

plea agreement. Turner/Finley letter, 4/12/18, at 6. Appellant avers that

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“his decision to take the matter to trial was made without full knowledge and

understanding of the evidence against him (i.e. the photographic line-up).”

Id.

      The PCRA court concluded that Appellant’s claim did not entitle him to

relief because Appellant’s claim is refuted by the record. Specifically, the PCRA

court noted that the existence of the photographic lineup “is identified in the

affidavit of probable cause supporting the criminal complaint and the affidavit

of probable cause supporting the search warrant[,] . . . both of which were

served on the [Appellant]. PCRA Court Opinion, 8/9/17, at 2. Specifically,

the affidavit of probable cause states:

      A photo line up [sic] was prepared by FSU member Tpr. Michael
      WEAVER prior to my arrival at the MOHLA’D residence. A lineup
      was prepared with a photo of the [Appellant] along with additional
      photo’s [sic] of individuals of the accused’s likeness. Upon viewing
      the line up [sic] containing [Appellant], Rashmi immediately
      picked out the [Appellant’s] photograph and stated that he was
      the man who broke in to [sic] her residence with the other suspect
      and was in the bedroom with her during the robbery.

Affidavit of Probable Cause, 11/7/14, at 2.

      Moreover, the PCRA court emphasized in its opinion that the

photographic lineup had little, if any, impact on Appellant’s prosecution. PCRA

Court Opinion, 8/9/17, at 2. Notably, the PCRA court noted that the victims

were personally familiar with Appellant, had the opportunity to observe

Appellant at the time of the incident, and identified him by name to the

investigating officers prior to any photographic lineup being conducted. Id.

Accordingly, the PCRA court concluded that Appellant’s knowledge of the


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photographic lineup would not have impacted his “decision making process

more than the known information that the victim[s] personally knew him and

identified him by name prior to the lineup . . . .” Id. at 3.

      We agree with Attorney Entwistle and the PCRA court that Appellant’s

claim is meritless. Appellant had knowledge of the photographic lineup as it

was referenced in several pleadings, all of which were served on the Appellant.

Moreover, the victims personally identified Appellant by name prior to a

photographic lineup being conducted.        Appellant does not allege that the

photographic lineup resulted in an unlawful conviction or that trial counsel was

ineffective for failing to file a motion to suppress the photographic lineup.

Rather, his only claim is that the Commonwealth failed to inform him of the

existence of the photographic lineup. As the record clearly refutes Appellant’s

claim, we conclude that the PCRA court did not err in denying it.

      In Appellant’s second issue, as raised in the Turner/Finley no-merit

letter, he contends that the PCRA court erred in dismissing his case without a

hearing when trial counsel was ineffective for failing to obtain the photographic

lineup.

      In deciding ineffective assistance of counsel claims, we begin with the

presumption that counsel rendered effective assistance. Commonwealth v.

Bomar, 104 A.3d 1179, 1188 (Pa. 2014). To overcome that presumption,

the petitioner must establish: “(1) the underlying claim has arguable merit;

(2) no reasonable basis existed for counsel’s action or failure to act; and (3)

the petitioner suffered prejudice as a result of counsel’s error, with prejudice

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measured by whether there is a reasonable probability that the result of the

proceeding would have been different.”           Id. (citation omitted).      To

demonstrate prejudice in an ineffective assistance of counsel claim, “the

petitioner must show that there is a reasonable probability that, but for

counsel’s unprofessional errors, the result of the proceeding would have been

different.” Commonwealth v. King, 57 A.3d 607, 613 (Pa. 2012). If the

petitioner fails to prove any of these prongs, the claim is subject to dismissal.

Bomar, 104 A.3d at 1188.

      With respect to the dismissal of a PCRA petition without a hearing, this

Court has explained:

      [T]he right to an evidentiary hearing on a post-conviction petition
      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. It is the
      responsibility of the reviewing court on appeal to examine each
      issue raised in the PCRA petition in light of the record certified
      before it in order to determine if the PCRA court erred in its
      determination that there were no genuine issues of material fact
      in controversy and in denying relief without conducting an
      evidentiary hearing.

Commonwealth v. Walls, 993 A.2d 289, 295 (Pa. Super. 2010) (internal

citations and brackets omitted). If the PCRA court “can determine without an

evidentiary hearing that one of the prongs cannot be met, then no purpose

would be advanced by holding an evidentiary hearing.” Commonwealth v.

Jones, 942 A.2d 903, 906 (Pa. Super. 2008).

      Here, Appellant argues that an evidentiary hearing was necessary for

him to present evidence to prove that trial counsel was ineffective for failing

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to secure a copy of the photographic lineup prior to trial. As discussed above,

the evidence Appellant would have presented in support of this claim would

be directly contradicted by the fact that he was served a copy of the affidavits

of probable cause and by the fact that the victims personally knew Appellant.

Thus, an evidentiary hearing would not have provided Appellant with an

avenue for relief.       As there was no genuine issue of material fact in

controversy, no purpose would have been served by holding a hearing.

Accordingly, the PCRA court did not err in denying Appellant’s petition without

a hearing.

       We now turn to the additional issue raised by Appellant in his pro se

response to the Turner/Finley no-merit letter. Appellant claims that the trial

court erred when it failed to give a Kloiber4 instruction. A Kloiber charge is

appropriate where there are special identification concerns, i.e., a witness did

not have the opportunity to clearly view the defendant or had difficulty making

an identification in the past. Commonwealth v. Rollins, 738 A.2d 435, 448

n. 14 (Pa. 1999); Commonwealth v. Gibson, 688 A.2d 1152, 1163 (Pa.

1997). However, “[w]hen the witness already knows the defendant, this prior

familiarity   creates    an    independent     basis   for   the   witness’s   in-court

identification of the defendant and weakens ineffectiveness claims based on




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4   Commonwealth v. Kloiber, 106 A.2d 820 (Pa. 1954).

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counsel [sic] failure to seek a Kloiber instruction.” Commonwealth v. Ali,

10 A.3d 282, 303 (Pa. 2010) (citations omitted).

      Here, Appellant did not raise any Kloiber challenge in his initial PCRA

petition. Likewise, in his Supplemental PCRA petition, Appellant restated his

claim of trial court error and ineffective assistance of counsel as it relates to

the photographic lineup. Appellant did not file an amended petition or present

any specific allegations of trial court error for failing to issue a Kloiber

instruction before the PCRA court. Thus, because Appellant failed to raise any

claim related to the trial court’s failure to issue a Kloiber instruction in his

initial PCRA petition or his Supplemental PCRA petition, his claim on appeal is

waived. See Commonwealth v. Santiago, 855 A.2d 682, 691 (Pa. 2004)

(stating that “a claim not raised in a PCRA petition cannot be raised for the

first time on appeal.”); see also Commonwealth v. Washington, 927 A.2d

586, 601 (Pa. 2007) (stating that “[a]ny claim not raised in the PCRA petition

is waived and not cognizable on appeal.”). Moreover, even if Appellant did

not waive this claim there is no dispute that the victims already knew

Appellant, creating an independent basis for their identification of Appellant.

See Ali, 10 A.3d at 303.

      Based on the foregoing, the PCRA court properly dismissed Appellant’s

PCRA petition.

      Petition to withdraw granted. Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date:09/21/2018




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