J-S45034-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                    :   IN THE SUPERIOR COURT OF
                                                    :        PENNSYLVANIA
                                                    :
                v.                                  :
                                                    :
                                                    :
    RONALD E. BENSON                                :
                                                    :
                       Appellant                    :   No. 346 EDA 2019

            Appeal from the PCRA Order Entered December 26, 2018
     In the Court of Common Pleas of Delaware County Criminal Division at
                       No(s): CP-23-CR-0003663-2014


BEFORE: BENDER, P.J.E., MURRAY, J., and PELLEGRINI, J.*

MEMORANDUM BY PELLEGRINI, J.:                               FILED AUGUST 23, 2019

        Ronald E. Benson (Benson) appeals from an order of the Court of

Common Pleas of Delaware County denying his first petition filed pursuant to

the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546.             Benson

contends that he is entitled to file an amended petition on remand because

his PCRA counsel improperly withdrew from the case and overlooked

meritorious claims as to his trial counsel’s ineffectiveness. We affirm.

                                               I.

        The pertinent factual and procedural background are gleaned from the

PCRA Court’s 1925(a) opinion and our independent review of the certified


____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
J-S45034-19


record. In 2015, Benson was found guilty after a jury trial of several sex-

related offenses against his minor daughter.1      He was sentenced to an

aggregate prison term of seven to fourteen years, followed by a consecutive

probationary period of ten years and lifetime registration as a sex offender.

Benson appealed and this Court affirmed in Commonwealth v. Benson,

2923 EDA 2015 (Pa. Super. July 14, 2016).

       Benson timely filed, pro se, his first PCRA petition in 2017.   Shortly

thereafter, the PCRA Court appointed counsel, who in 2018 filed a

Turner/Finley2 “no merit” letter and an application to withdraw. The PCRA

Court issued a notice of intent to dismiss the PCRA petition pursuant to

Pa.R.Crim.P. 907.

       Benson filed a pro se objection to the withdrawal of PCRA counsel,

alleging that he had asserted an issue of merit in his petition – the

inadmissibility of his daughter’s trial testimony. Although Benson questioned

the diligence of PCRA counsel in reviewing the record and researching the law,




____________________________________________


1 The offenses were involuntary deviate sexual intercourse with a child less
than 13 years of age; aggravated indecent assault of a person less than 13
years of age; indecent assault with a person less than 13 years of age; and
endangering the welfare of a child.

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




                                           -2-
J-S45034-19


he did not present any additional issues which he believed to be of sufficient

merit to preclude counsel’s withdrawal.

       The PCRA Court granted PCRA counsel’s request to withdraw, agreeing

that Benson’s grounds had no merit and did not require a hearing. The PCRA

Court entered an order denying Benson’s PCRA petition on December 2, 2018,

and Benson timely appealed.3

       He now asserts in his appellate brief that PCRA counsel’s Turner/Finley

no-merit letter was deficient because it misrepresented PCRA counsel’s review

of the record; investigation of issues raised in Benson’s petition; and

communications with Benson. See Appellant’s Brief, at 6-7.4 He also claimed

that PCRA counsel failed to identify grounds for trial counsel’s ineffectiveness.

Id. at 10-11.5 For the reasons detailed below, we find that Benson’s claims

have no merit or are waived.

                                               II.

       “The denial of PCRA relief cannot stand unless the petitioner was

afforded the assistance of counsel.” Commonwealth v. Albrecht, 720 A.2d


____________________________________________


3 The PCRA Court did not order Benson to file a concise statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(b), and none was filed.

4 Benson seems to meld his issues regarding the adequacy of the no-merit
letter with a claim of ineffective PCRA counsel.

5Benson asserted the same issues to this Court in his pro se Petition to
Reinstate Post Sentence Rights ‘Nunc Pro Tunc’,” filed on April 1, 2019. This
Court denied that petition without prejudice a few days later.


                                           -3-
J-S45034-19


693, 699 (Pa. 1998).         Despite that requirement, appointed counsel must

decline to litigate a meritless petition and may withdraw from a case to avoid

doing so. See Commonwealth v. Turner, 544 A.2d 927, 928-29 (Pa. 1988).

       In order to withdraw at the PCRA stage, “counsel must . . . 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.” Commonwealth v. Wrecks, 931 A.2d

717, 721 (Pa. Super. 2007). Counsel must also send to the petitioner a copy

of the “no-merit” letter or brief and petition to withdraw and advise the

petitioner of his right to proceed pro se or with new counsel.               See

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

Substantial compliance with these requirements will satisfy the above criteria

and preclude relief on that basis. Id.

       Further, on appeal from the denial of a PCRA petition, this Court must

affirm the PCRA Court’s ruling as long as we find from our independent review

of the record that the ruling is supported by the evidence and free of legal

error.6 A PCRA court’s dismissal of a petition without a hearing will be affirmed

____________________________________________


6      Our standard of review of the denial of a PCRA petition is limited
       to examining whether the evidence of record supports the court’s
       determination and whether its decision is free of legal error.
       Commonwealth v. Conway, 14 A.3d 101 (Pa. Super. 2011).
       This Court grants great deference to the findings of the PCRA court



                                           -4-
J-S45034-19


if there is “no genuine issue concerning any material fact and the petitioner is

not entitled to post-conviction collateral relief, and no purpose would be

served by any further proceedings.” Commonwealth v. Taylor, 933 A.2d

1035, 1040 (Pa. Super. 2007).

       Here, PCRA counsel substantially complied with all of the requirements

for a Turner/Finley “no-merit” letter.               Counsel filed the letter and the

application to withdraw as counsel.             In the letter, counsel stated that he

corresponded with Benson; reviewed Benson’s file and available court records;

listed the claims Benson wished to raise; and explained in detail why the

claims have no merit.7 Counsel indicated that he had served Benson with a

copy of the “no-merit” letter and application to withdraw, which notified

Benson of PCRA counsel’s request to withdraw and provided an explanation of

Benson’s     right   to   proceed    pro       se   or   with   private   counsel.   See


____________________________________________


       if the record contains any support for those findings.
       Commonwealth v. Boyd, 923 A.2d 513 (Pa. Super. 2007). We
       give no such deference, however, to the court’s legal conclusions.
       Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa. Super. 2012).

Commonwealth v. Beatty, 207 A.3d 957, 960-61 (Pa. Super. 2019).

7 Benson had asserted in his pro se petition that the evidence was insufficient
to sustain his convictions. This claim was based on the absence of forensic
evidence of guilt, conflicting testimony by the victim and an examining
physician. Benson also argued that his trial counsel was ineffective due to his
failure to impeach the victim and to seek the exclusion of a juror who he knew
personally. Contrary to Benson’s claim, PCRA counsel’s no-merit letter
addressed all those issues in detail, and the PCRA Court, in turn, assessed
those issues in its opinion. See PCRA Court 1925(a) Opinion, 1/24/2019, at
9-14.

                                           -5-
J-S45034-19


Commonwealth v. Widgins, 29 A.3d 816 (Pa. Super. 2011) (holding PCRA

counsel   substantially   complied   with    Turner/Finley      requirements    to

withdraw).

      It was not until Benson filed his appellate brief that he argued that the

record supports another PCRA issue – the trial counsel’s failure to object to

improper prosecutorial comment. See Appellant’s Brief, at 10-11. Regardless

of whether Benson intended to frame this as an issue of ineffective trial

counsel or PCRA counsel, Benson waived the issue by raising it for the first

time on appeal. See Pa.R.A.P. 302(a) (“Issues not raised in the lower court

are waived and cannot be raised for the first time on appeal.”); 42 Pa.C.S. §

9544(b) (“[A]n issue is waived if the petitioner could have raised it but failed

to do so before trial, at trial, during unitary review, on appeal or in a prior

state postconviction proceeding.”); see also Albrecht, 720 A.2d at 700 (“The

post-conviction appellate stage is an appropriate time to enforce the rules of

waiver.”); Commonwealth v. Rykard, 55 A.3d 1177 (Pa. Super. 2012)

(claims may be waived by failing to include them in a written response to

PCRA court’s notice of intent to dismiss).

      Thus,   because     PCRA   counsel     substantially   complied   with   the

Turner/Finley requirements and Benson does not otherwise assert a

preserved or meritorious basis for relief, the order on review must stand.

      Order affirmed.




                                     -6-
J-S45034-19


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/23/2019




                          -7-
