J-A14029-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

A.A.

                            Appellant                No. 1176 MDA 2014


                   Appeal from the PCRA Order June 19, 2014
               In the Court of Common Pleas of Lancaster County
              Criminal Division at No(s): CP-36-CR-0005893-2011


BEFORE: BENDER, P.J.E., JENKINS, J., and STRASSBURGER, J.*

MEMORANDUM BY JENKINS, J.:                                 FILED MAY 29, 2015

        Appellant A.A. appeals pro se from the order entered in the Lancaster

County Court of Common Pleas, which dismissed his petition seeking relief

pursuant to the Post Conviction Relief Act (“PCRA”).1 We affirm.

        The trial court sets forth the relevant facts and procedural history of

this appeal as follows:

           On January 9, 2012, the District Attorney of Lancaster
           County filed a Criminal Information (No. 5893-2011)
           charging [Appellant] with 14 counts of sexual offenses
           involving three different child-victims, all of whom were
           related to [Appellant].1 These offenses occurred between
           the dates of January 1, 2008 and December 31, 2010, at
           which time [Appellant] engaged in sexual intercourse with
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
    42 Pa.C.S. §§ 9541-9546.
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       three separate complainants who were less than 13 years
       of age.
          1
             [Appellant] was initially charged as a juvenile
          through the filing of a Juvenile Petition, as he was a
          minor at the time the offenses were committed
          (D.O.B. 08/01/1992). On September 31, 2011, the
          Commonwealth filed a Petition to Transfer Juvenile to
          the Court of Common Pleas of Lancaster County,
          Criminal Division, and a hearing was ordered to be
          held on December 6, 2011. Furthermore, a guardian
          ad litem was appointed for [Appellant].             On
          December 30, 2011, when he was 19 years of age,
          [Appellant] knowingly, voluntarily, and with the
          benefit of counsel and his guardian ad litem entered
          into five stipulations that effectively transferred his
          case from Juvenile Court to the Court of Common
          Pleas, and the court entered an order transferring
          [Appellant] to criminal court on that same day.

       More specifically, in addition to vaginal and anal
       intercourse, [Appellant] placed his penis in the mouth of
       his half-sister, F.T. (D.O.B. 2/20/1997), placed his mouth
       on the child’s vagina, and committed one act of forcible
       sexual intercourse against this child by holding her against
       her will. At various times [Appellant] also fondled the
       child’s breasts and ejaculated on the victim’s face and
       chest. Additionally, [Appellant] raped his other half-sister,
       K.T. (D.O.B. 5/13/1999), by at various times engaging in
       vaginal intercourse while touching the child’s buttocks
       without her consent.       Finally, [Appellant] engaged in
       sexual intercourse with his cousin, S.J. (D.O.B. 1/24/2000)
       and placed his penis in this victim’s mouth.

       Counts 1, 2, 10, and 13 of the Criminal Information
       charged [Appellant] with four separate instances of rape of
       a child,2 a felony of the first degree. Count 6 charged
       [Appellant] with rape by forcible compulsion,3 a felony of
       the first degree. Counts 3, 4, and 14 charged [Appellant]
       with three instances of involuntary deviate sexual
       intercourse with a child,4 a felony of the first degree.
       Count 5 charged [Appellant] with aggravated indecent
       assault of a child,5 a felony of the first degree. Counts 7


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       and 12 charged [Appellant] with three instances of
       indecent assault of a person less than 13 years of age.7
          2
              18 Pa.C.S. § 3121(c)[.]
          3
              18 Pa.C.S. § 3121(a)(1)[.]
          4
              18 Pa.C.S. § 3123(b)[.]
          5
              18 Pa.C.S. § 3125(b)[.]
          6
              18 Pa.C.S. § 4302(a)[.]
          7
              18 Pa.C.S. § 3126(a)(7)[.]

       On January 10, 2012, [Appellant] appeared before the
       Honorable Judge Louis J. Farina and entered into a guilty
       plea pursuant to a negotiated agreement.           At the
       conclusion of the guilty plea hearing, Judge Farina
       accepted [Appellant’s] guilty plea after finding it was
       knowing, intelligent and voluntary. The court then entered
       an order directing that [Appellant] undergo an assessment
       by the Sexual Offenders Assessment Board [(“SOAB”)],
       and sentencing was deferred until completion of the
       assessment.

       A sexually violent predator [(“SVP”)] hearing was held
       before Judge Farina on May 29, 2012, in order to
       determine whether [Appellant] was [an SVP]. After the
       hearing, in which Dr. Veronique N. Valliere testified on
       behalf of the Commonwealth and Dr. Timothy P. Foley
       appeared and testified on behalf of [Appellant], the court
       found the Commonwealth had proven by clear and
       convincing evidence that [Appellant] was [an SVP].
       Thereafter, sentence was imposed pursuant to the
       negotiated plea agreement, at which time [Appellant]
       received an aggregate prison sentence of not less than 10
       years nor more than 30 years in the state correctional
       institution.9
          9
            [Appellant] was sentenced as follows: (1) 10 to 30
          years[’] imprisonment on each of the four counts of
          rape of a child; (2) 10 to 30 years[’] imprisonment
          on the charge of rape by forcible compulsion; (3) 10

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          to 30 years[’] imprisonment on each of the three
          counts of involuntary deviate sexual intercourse with
          a child; (4) 10 to 30 years[’] imprisonment on the
          charge of aggravated indecent assault of a child; (5)
          1 to 2 years[’] imprisonment for each of the two
          counts of incest; (6) 1 to 5 years[’] imprisonment for
          each of the two counts of felony indecent assault of a
          minor; and (7) 1 to 2 years[’] imprisonment on the
          charge of misdemeanor indecent assault of a minor.
          All sentences were to be served concurrent with one
          another.

       On June 27, 2012, [Appellant] filed a notice of appeal. On
       July 23, 2012, [Appellant] filed a statement of errors
       complained of on appeal, alleging the trial court committed
       error by denying his request to submit a written expert
       report in lieu of live testimony at the SVP hearing and by
       denying his request for the court to fund that expert
       testimony. However[, Appellant’s] counsel subsequently
       filed an Anders brief in the appeal and sought leave to
       withdraw.

       The Superior Court of Pennsylvania filed a memorandum
       decision on April 3, 2013, granting counsel’s request to
       withdraw and affirming the judgment of the trial court. On
       March 4, 2014, [Appellant] filed a pro se document titled
       “Notice of Appeal” with the Supreme Court of
       Pennsylvania, which was later returned to [Appellant]
       because his appeal was not timely.

       [Appellant] then submitted a pro se motion for [PCRA]
       relief, post-marked April 2, 2014 and filed on April 7,
       2014. In his motion, [Appellant] requested release from
       custody and a new trial by alleging his guilty plea was
       unlawfully induced and his appellate counsel provided
       ineffective assistance of counsel for failing to file a petition
       for allowance of appeal to the Supreme Court of
       Pennsylvania. Thereafter, on April 23, 2014, Christopher
       P. Lyden, Esquire, was appointed as counsel to represent
       [Appellant] on his PCRA motion.

       On May 15, 2014, after investigating [Appellant’s] claims,
       counsel submitted a no-merit letter pursuant to
       Commonwealth       v.    Finley,     550     A.2d      213

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          (Pa.Super.1988) and Commonwealth v. Turner, 544
          A.2d 927 (Pa.1988), expressing the opinion that the issues
          raised in [Appellant’s] pro se PCRA motion had no merit.
          Counsel also conducted an independent review of the
          record, finding “no other claims of merit to present” on
          [Appellant’s] behalf. Counsel simultaneously filed a motion
          to withdraw as counsel, complying with the requirements
          of   Commonwealth         v.  Friend,   896     A.2d   607
                                                         [2]
          (Pa.Super.2006) (overruled on other grounds).

          In accordance with Pennsylvania rules of criminal
          procedure, [the PCRA] court then conducted an
          independent review of the record. On May 29, 2014, the
          court issued a Rule 907 notice concluding that
          [Appellant’s] PCRA motion was patently frivolous, the
          allegations were not supported by the record, and there
          were no genuine issues concerning any material fact.
          Pursuant to Rule 907 of the Pennsylvania Rules of Criminal
          Procedure, [Appellant] was allowed twenty (20) days from
          the date of the notice to file a response to the proposed
          dismissal. Thereafter, on June 19, 2014, the court filed an
          order dismissing [Appellant’s] PCRA petition.13
              13
                On June 19, 2014, at 9:27 a.m., the court filed an
              order dismissing [Appellant’s] PCRA motion, noting
              that [Appellant] had failed to submit a timely
              response within twenty days of the Rule 907 notice
              as required.    On June 19, 2014, at 9:40 a.m.,
              [Appellant’s] reply to rule 907 notice was filed with
              the Lancaster County Office of the Prothonotary.
              Consequently, [Appellant’s] reply was not before the
              court for consideration prior to dismissal of the PCRA
              motion.[3]
____________________________________________


2
  See Commonwealth v. Pitts, 981 A.2d 875, 879 (Pa.2009) (“To the
extent Friend stands for the proposition that an appellate court may sua
sponte review the sufficiency of a no-merit letter when the defendant has
not raised such issue, we disavow such holding.”).
3
  The PCRA court’s failure to consider Appellant’s response to the Rule 907
notice before dismissing his PCRA petition is irrelevant; Appellant suffered no
prejudice because the PCRA court addressed the claims asserted in
(Footnote Continued Next Page)


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J-A14029-15



          On July 7, 2014, [Appellant] filed a notice of appeal to the
          Superior Court of Pennsylvania. A concise statement of
          matters complained of on appeal was submitted on July
          23, 2014, asserting three errors. First, [Appellant] alleges
          the trial court erred in permitting PCRA counsel to
          withdraw     his    appearance      without     investigating
          [Appellant’s] mental health claims. Second, [Appellant]
          alleges PCRA counsel was ineffective for failing to
          investigate the aforementioned mental health claims.
          Finally, [Appellant] alleges his guilty plea was unlawfully
          induced due to his “mental infirmity,” and as such he was
          not aware of the nature of the charges against him or of
          the permissible range of sentences which could be
          imposed.

PCRA Court Opinion, filed September 5, 2014, (“PCRA” Opinion) at 1-6

(unnecessary capitalization, citations to the record, and some footnotes

omitted).

      Appellant raises the following issues for our review:

          WHETHER THE PCRA COUNSEL WAS INEFFECTIVE FOR
          FAILING TO RAISE THE INEFFECTIVENESS OF APPELLATE
          AND TRIAL COUNSEL CONCERNING APPELLANT’S MENTAL
          HEALTH?

          WHETHER THE TRIAL COURT ERRED IN PERMITTING PCRA
          COUNSEL TO WITHDRAW HIS APPEARANCE WITHOUT
          INVESTIGATING ANY OF THE APPELLANT’S CLAIMS?
                       _______________________
(Footnote Continued)

Appellant’s response in its Pa.R.A.P. 1925(a) opinion. See Commonwealth
v. Feliciano, 69 A.3d 1270, 1277 (Pa.Super.2013) (“It is apparent from the
court’s Pa.R.A.P. 1925(a) opinion that it received and evaluated those
documents, albeit after it issued its order denying Appellant’s petition. The
court concluded that all of the claims asserted in Appellant’s responses were
meritless.… Appellant has not demonstrated that he was prejudiced by the
court’s failure to consider his responses to the Rule 907 notice prior to
denying his petition.”).




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J-A14029-15



         WHETHER APPELLANT’S GUILTY PLEA WAS UNLAWFULLY
         INDUCED DUE TO HIS LACK OF MATURITY, AND MENTAL
         HEALTH ISSUES?

Appellant’s Brief at 4.

      In his first two issues, Appellant argues his PCRA counsel was

ineffective for failing to investigate claims about his mental health.

Appellant claims he presented issues of arguable merit and that the PCRA

court erred by allowing counsel to withdraw without pursuing these issues.

We disagree.

      Our standard of review is well-settled.     “In reviewing the denial of

PCRA relief, we examine whether the PCRA court’s determination is

supported by the record and free of legal error.” Commonwealth v. Fears,

86 A.3d 795, 803 (Pa.2014) (internal quotation marks and citation omitted).

“The 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 trial level.” Commonwealth v. Spotz, 84 A.3d 294, 311 (Pa.2014)

(citation omitted).       “It is well-settled that a PCRA court’s credibility

determinations are binding upon an appellate court so long as they are

supported by the record.”       Commonwealth v. Robinson, 82 A.3d 998,

1013 (Pa.2013) (citation omitted).     However, this Court reviews the PCRA

court’s legal conclusions de novo. Commonwealth v. Rigg, 84 A.3d 1080,

1084 (Pa.Super.2014) (citation omitted).




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J-A14029-15


     Our Supreme Court has explained the procedure required for court-

appointed counsel to withdraw from PCRA representation:

        [Turner and Finley] establish the procedure for
        withdrawal of court-appointed counsel in collateral attacks
        on criminal convictions. Independent review of the record
        by competent counsel is required before withdrawal is
        permitted. Such independent review requires proof of:

           1) A ‘no-merit’ letter by PCRA counsel detailing the
           nature and extent of his [or her] review;

           2) A ‘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;

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

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

Pitts, 981 A.2d at 876 n.1 (citations omitted). In addition, this Court has

required 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 the petitioner both a copy of the ‘no-merit’ letter
        and a statement advising the petitioner that, in the event
        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.

Friend, 896 A.2d at 614 (emphasis deleted). Further,

        [i]f 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. Commonwealth v.
        Mosteller, 633 A.2d 615, 617 (Pa.Super.1993). Upon

                                   -8-
J-A14029-15


        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. Commonwealth v. Karanicolas,
        836 A.2d 940, 948 (Pa.Super.2003).

        However, where counsel submits a petition and no-merit
        letter that do satisfy the technical demands of
        Turner/Finley, the court—trial 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. Mosteller, 633 A.2d at 617. By contrast, if the
        claims appear to have merit, the 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, 721-22 (Pa.Super.2007).

     Instantly, Appellant filed a timely pro se motion for PCRA relief. On

April 23, 2014, the court appointed PCRA counsel, who filed a motion to

withdraw on May 15, 2014. Along with his motion to withdraw, counsel filed

a no-merit letter, which detailed the nature and extent of his review by

stating that he reviewed Appellant’s PCRA petition, the court file, the notes

of testimony from the guilty plea hearing and sentencing hearing and did

additional legal research. See Turner/Finley Letter, dated May 15, 2014.

Counsel listed the issue Appellant wished to have reviewed and explained

that appellate counsel had no obligation to continue with Appellant’s appeal

after the Superior Court had granted him permission to withdraw. Counsel

stated that Appellant’s issue was, therefore, meritless and that, after

conducting an independent review of the record, Appellant had no other

claims of merit to present.   Id.   The PCRA court then conducted its own


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J-A14029-15


“thorough review of the record” and concluded Appellant’s PCRA motion was

“patently frivolous, the allegations are not supported by the record, and

there are no genuine issues concerning any material fact.” Rule 907 Notice,

filed May 29, 2014, at 15. Thus, the court properly granted counsel’s motion

to withdraw.

          Appellant claims that trial counsel was ineffective for failing to

investigate Appellant’s mental health.             Although ineffective assistance of

counsel claims are cognizable under the PCRA, Appellant’s issue merits no

relief.

          This Court follows the Pierce4 test adopted by our Supreme Court to

review claims of ineffective assistance of counsel:

            When a petitioner alleges trial counsel’s ineffectiveness in
            a PCRA petition, he must prove by a preponderance of the
            evidence that his conviction or sentence resulted from
            ineffective   assistance   of   counsel    which,     in   the
            circumstances of the particular case, so undermined the
            truth-determining process that no reliable adjudication of
            guilt or innocence could have taken place. We have
            interpreted this provision in the PCRA to mean that the
            petitioner must show: (1) that his claim of counsel’s
            ineffectiveness has merit; (2) that counsel had no
            reasonable strategic basis for his action or inaction; and
            (3) that the error of counsel prejudiced the petitioner-i.e.,
            that there is a reasonable probability that, but for the error
            of counsel, the outcome of the proceeding would have
            been different. We presume that counsel is effective, and it
            is the burden of Appellant to show otherwise.


____________________________________________


4
    Commonwealth v. Pierce, 527 A.2d 973 (Pa.1987).



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J-A14029-15


Commonwealth v. duPont, 860 A.2d 525, 531 (Pa.Super.2004) (internal

citations and quotations omitted).       The petitioner bears the burden of

proving all three prongs of this test.       Commonwealth v. Meadows, 787

A.2d 312, 319-320 (Pa.2001).          “If an appellant fails to prove by a

preponderance of the evidence any of the Pierce prongs, the Court need not

address the remaining prongs of the test.” Commonwealth v. Fitzgerald,

979 A.2d 908, 911 (Pa.2010) (citation omitted).

      Appellant complains his trial counsel was ineffective for failing to

investigate why Appellant was raping his young family members. He claims

a psychiatric evaluation would have revealed poor mental health, specifically

a pedophilic sexual disorder. However, Appellant fails to elaborate on why

counsel would have investigated this claim, how it would have helped his

case, or how he has been prejudiced by his counsel’s failure to pursue it.

      The PCRA court reasoned:

         Addressing his alleged “mental defect,” [Appellant] was
         found by clear and convincing evidence to be affected by
         Paraphilia (N.O.S.) during the SVP Hearing, which satisfied
         the statutory criteria for classification as [an SVP].

                                  *      *     *

         However, a SVP Hearing and a diagnosis of Paraphilia
         (N.O.S.) do not affect [Appellant’s] competence to stand
         trial, and [Appellant] may not use that finding as a means
         to attack his underlying conviction. To that end, none of
         the psychological experts involved in this case, including
         [Appellant’s] expert, ever used this diagnosis as a basis for
         questioning [Appellant’s] competence in any way.




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         Moreover, any argument PCRA counsel could have made
         as to [Appellant’s] alleged mental defect or competency to
         stand trial would have been fatally undercut by the record.
         As part of [Appellant’s] transfer from Juvenile Court to the
         Court of Common Pleas, [Appellant] stipulated he was “not
         committable to an institution for the mentally retarded or
         mentally ill.”   Furthermore, prior to the on-the-record
         colloquy conducted by the court during his guilty plea
         hearing, [Appellant] signed a seven-page Guilty Plea
         Colloquy and Post-Sentence Rights form stating he had
         never been treated for mental illness.         When asked
         whether a mental illness or its treatment would affect his
         ability to understand his rights or why he was in court at
         that time, [Appellant] replied “N/A.”           Additionally,
         [Appellant’s] counsel noted there were two psychological
         evaluations done on [Appellant] prior to his waiver of the
         certification hearing which do not support [Appellant’s]
         assertions that he suffered from a mental defect.

PCRA Opinion, at 16-17.

      As Appellant cannot establish that his claim of ineffectiveness has any

merit, we need not address the remaining prongs of the Pierce test. See

Fitzgerald, supra.

      In his third and final issue, Appellant argues his guilty plea was

unlawfully induced due to his lack of maturity and mental health issues.

This issue lacks merit.

      “The entry of a guilty plea is a protracted and comprehensive

proceeding wherein the court is obliged to make a specific determination

after extensive colloquy on the record that a plea is voluntarily and

understandingly tendered.” Commonwealth v. Yeomans, 24 A.3d 1044,

1046 (Pa.Super.2011) (quoting Commonwealth v. Fluharty, 632 A.2d

312, 314 (Pa.Super.1993) (citation omitted). At a minimum, the trial court

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J-A14029-15


must determine that:     (1) the defendant understands the nature of the

charges to which he is pleading guilty, (2) there is a factual basis for the

plea, (3) the defendant understands that he has a right to trial by jury, (4)

the defendant understands that he is presumed innocent until proven guilty,

(5) the defendant is aware of the permissible range of sentences and/or

fines for the charged offenses, and (6) the defendant is aware that the judge

is not bound by the terms of the plea agreement tendered unless the judge

accepts the agreement.     Yeomans, 24 A.3d at 1047 (citing Pa.R.Crim.P.

590, Comment).

      “[T]he law does not require that [the defendant] be pleased with the

outcome of his decision to enter a plea of guilty: All that is required is that

[his] decision to plead guilty be knowingly, voluntarily, and intelligently

made.”   Commonwealth v. Willis, 68 A.3d 997, 1001 (Pa.Super.2013)

(quoting Commonwealth v. Anderson, 995 A.2d 1184, 1192 (Pa.Super.

2010) (alterations in original)).   A guilty plea colloquy must “affirmatively

demonstrate the defendant understood what the plea connoted and its

consequences.” Id. at 1002 (quoting Commonwealth v. Lewis, 708 A.2d

497, 501 (Pa.Super.1998)).     After a defendant enters a guilty plea, “it is

presumed that he was aware of what he was doing, and the burden of

proving involuntariness is upon him.”        Id. (quoting Commonwealth v.

Bedell, 954 A.2d 1209, 1212 (Pa.Super.2008)).




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     Whether a defendant is competent to plead guilty “requires a finding

that the defendant comprehends the crime for which he stands accused, is

able to cooperate with his counsel in forming a rational defense, and has a

rational and factual understanding of the proceedings against him.” Willis,

68 A.3d at 1002 (citing Commonwealth v. Turetsky, 925 A.2d 876

(Pa.Super.2007)).

     Here, the trial court conducted a thorough colloquy before Appellant,

who was 19 years old, entered his guilty plea. See N.T., 1/10/12, at 3-22.

The court explained the charges and the maximum penalties and fines each

charge warranted. Id. at 3-5. The court advised Appellant of his right to a

jury trial and the Commonwealth’s burden to prove him guilty beyond a

reasonable doubt. Id. at 8. Appellant then admitted to the factual bases for

all of his charges. Id. at 9-11. Additionally, Appellant signed a guilty plea

colloquy and post-sentence rights form in which he indicated he was not

being treated for any mental illness. After the court apprised Appellant of

his rights, Appellant acknowledged that he was competent and understood

everything in the guilty plea colloquy he reviewed with his attorney, that he

was not being coerced into entering the plea, that he did not have any

questions, and that it was his own decision to plead guilty.   Id. at 17-22.

Thus, Appellant’s guilty plea was not unlawfully induced, and his claim lacks

merit. See Yeomans, supra.




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         After a thorough review of the record, the briefs of the parties and the

applicable law, we conclude the PCRA court properly denied Appellant PCRA

relief    and   properly   granted    counsel’s   petition   to   withdraw   from

representation of Appellant. Accordingly, we affirm.

         Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/29/2015




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