J-S73039-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    RONALD S. MORGAN                           :
                                               :
                       Appellant               :   No. 889 WDA 2018

                  Appeal from the PCRA Order May 21, 2018
      In the Court of Common Pleas of Butler County Criminal Division at
                       No(s): CP-10-CR-0000991-2011


BEFORE: GANTMAN, P.J., BENDER, P.J.E., and OLSON, J.

MEMORANDUM BY OLSON, J.:                           FILED SEPTEMBER 05, 2019

       Appellant, Ronald S. Morgan, appeals from the order entered on May

21, 2018, granting in part and denying in part his petition filed under the Post

Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546.              On appeal,

Appellant's court-appointed counsel filed both a petition to withdraw as

counsel and an accompanying brief pursuant to Commonwealth v.

Santiago, 978 A.2d 349 (Pa. 2009) and Anders v. California, 386 U.S. 738

(1967).1 We conclude that Appellant's counsel complied with the procedural
____________________________________________


1 Counsel seeking to withdraw from post-conviction representation must
satisfy the requirements of Commonwealth v. Turner, 544 A.2d 927 (Pa.
1988), and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en
banc). However, “[b]ecause an Anders brief provides greater protection to a
defendant, this Court may accept an Anders brief in lieu of a [brief pursuant
to Turner/Finley].” Commonwealth v. Widgins, 29 A.3d 816, 817 n.2
(Pa. Super. 2011) (citation omitted). Although counsel refers to the appellate
brief submitted in this case as an “Anders” brief, we shall henceforth refer to
the submission as a “Turner/Finley” brief, reflecting the correct line of
authority under which it is filed.
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requirements necessary to withdraw. Further, we conclude that the appeal is

without merit. We affirm.

     As we previously explained:

        [During Appellant’s trial, Appellant was represented by
        William Stockey, Esquire (hereinafter “Attorney Stockey”).]
        Following a three-day jury trial in May 2013, Appellant was
        convicted of two counts of involuntary deviate sexual
        intercourse (IDSI), one count each of statutory sexual
        assault, aggravated indecent assault, and indecent assault,
        104      counts    of    sexual      abuse    of     children
        (photographing/videotaping/depicting on computer or filming
        sexual acts), 104 counts of sexual abuse of children
        (viewing/possessing child pornography), one count each of
        endangering the welfare of children and corruption of minors,
        and two counts of misdemeanor possessory drug offenses.
        With the exception of the drug convictions, all convictions
        involved offenses committed against the daughter (victim) of
        one of Appellant’s friends, beginning when the victim was
        approximately eleven or twelve and continuing until she was
        fifteen.

        [On February 19, 2014,] Appellant was sentenced to an
        aggregate term of not less than 182 months and not more
        than 364 months in prison. He also was determined to be [a
        sexually violent predator].

Commonwealth v. Morgan, 135 A.3d 661 (Pa. Super. 2015) (unpublished

memorandum) at 1-22.

     We affirmed Appellant’s judgment of sentence on December 17, 2015;

Appellant did not file a petition for allowance of appeal with our Supreme

Court. Id.

     On January 12, 2017, Appellant, through counsel, filed a timely PCRA

petition. Appellant raised the following claims in his PCRA petition: 1) his

sentence is illegal because it violates Alleyne v. United States, 570 U.S. 99

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(2013); 2) Attorney Stockey was ineffective because he did not object to the

fact that Appellant’s sentence violated Alleyne; 3) Attorney Stockey was

ineffective because he failed to “conduct zealous cross-examination of the []

victim;” 4) Attorney Stockey was ineffective because he failed to “object to

various Commonwealth exhibits which were actually images of someone other

than the victim;” 5) Attorney Stockey was ineffective because he “never

shared the discovery materials with [Appellant] despite [Appellant’s] repeated

requests;” and, 6) Attorney Stockey was ineffective because he “failed to

provide the trial court with a proper foundation to admit evidence for social

media that the first time the [] victim had sex was long after she claimed

[Appellant] had sex with her.” Appellant’s PCRA Petition, 1/12/17, at 10-25

(some capitalization omitted).

      On August 25, 2017, the PCRA court held a hearing on the petition.

During the hearing, Appellant testified on his own behalf and Appellant also

presented the testimony of his friend, Keith Fries. See N.T. PCRA Hearing,

8/25/17, at 1-58. However, Attorney Stockey did not testify at the hearing

and Appellant did not present any evidence from Attorney Stockey as to why

he chose to pursue any particular strategy or course of conduct during trial.

See id.

      On May 21, 2018, the PCRA court entered an order granting in part and

denying in part the petition. Specifically, the PCRA court granted Appellant

relief on his illegal sentencing claim; thus, the PCRA court vacated Appellant’s

judgment of sentence and remanded the case for resentencing. PCRA Court

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Order, 5/21/18, at 1. However, the PCRA court denied Appellant’s petition in

all other respects.2 Id.

        Even though Appellant’s PCRA counsel was still counsel of record,

Appellant filed a timely, pro se notice of appeal on June 12, 2018. On June

22, 2018, Appellant’s PCRA counsel filed a petition to withdraw his

appearance, where he claimed that the court must permit him to withdraw

because of “an irreconcilable conflict of interest between [Appellant] and

[himself].” PCRA Counsel’s Petition to Withdraw, 6/22/18, at 1-2.

        The PCRA court granted PCRA counsel’s petition to withdraw on June 25,

2018. Eventually, new counsel was appointed to represent Appellant on this

appeal.3 Counsel then filed a Turner/Finley brief and a petition to withdraw

in this Court.4 The Turner/Finley brief raises the following claims:

          1. Did trial counsel render ineffective assistance of counsel
          by[:]
____________________________________________


2An order granting in part and denying in part all issues raised in a PCRA
petition is a final order for purposes of appeal. Commonwealth v. Watley,
153 A.3d 1034, 1039 n.3 (Pa. Super. 2016), citing Commonwealth v.
Gaines, 127 A.3d 15, 17-18 (Pa. Super. 2015) (en banc) (plurality).

3 In a memorandum decision filed on December 20, 2018, this Court remanded
the case to the PCRA court for the sole purpose of determining whether
Appellant knowingly, voluntarily, and intelligently waived his right to a
counseled PCRA appeal in accordance with Commonwealth v. Grazier, 713
A.2d 81 (Pa. 1998). Upon remand, a Grazier hearing was held at which time
it was determined that counsel would be appointed to represent Appellant in
this PCRA appeal. Current counsel was appointed on or about February 19,
2019.

4   The Commonwealth did not file a brief in this appeal.



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              A. Failing to conduct zealous cross-examination of the []
              victim[?]

              B. Failing to object to various Commonwealth exhibits
              which were actually images of videos of someone other
              than the victim[?]

              C. Failing to provide proper foundation to admit certain
              possibly-exculpatory social media evidence[?]

              D. Failing to disclose discovery materials with Appellant
              despite Appellant’s request that he do so, and thereby
              deprive Appellant of the ability to actively participate in
              his own defense[?]

Appellant’s Brief at 9-10 (some capitalization omitted).5

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

Turner/Finley brief, we must determine whether counsel met the procedural

requirements to withdraw. 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
____________________________________________


5   For ease of discussion, we have re-numbered Appellant’s claims on appeal.


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        that the claims are without merit, the court will permit
        counsel to withdraw and deny relief.

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

(corrections and some quotations and citations omitted). In this case, counsel

fulfilled the procedural requirements for withdrawing as PCRA counsel.

Therefore, we will analyze the claims to determine whether they lack merit.

        When reviewing the denial of a PCRA petition, we must
        determine whether the PCRA court's order is supported by
        the record and free of legal error. Generally, we are bound
        by a PCRA court's credibility determinations. However, with
        regard to a court's legal conclusions, we apply a de novo
        standard.

Commonwealth v. Lee, 206 A.3d 1, 6 (Pa. Super. 2019) (citations omitted).

      To be eligible for relief under the PCRA, the petitioner must plead and

prove by a preponderance of the evidence that his conviction or sentence

resulted from “one or more” of the seven, specifically enumerated

circumstances listed in 42 Pa.C.S.A. § 9543(a)(2). One of these statutorily

enumerated circumstances is the “[i]neffective 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.” 42 Pa.C.S.A. § 9543(a)(2)(ii).

      Counsel is presumed to be effective and “the burden of demonstrating

ineffectiveness rests on [A]ppellant.” Commonwealth v. Rivera, 10 A.3d

1276, 1279 (Pa. Super. 2010). To satisfy this burden, Appellant must plead

and prove by a preponderance of the evidence that:



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        (1) his underlying claim is of arguable merit; (2) the
        particular course of conduct pursued by counsel did not have
        some 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
        proceedings would have been different.

Commonwealth v. Fulton, 830 A.2d 567, 572 (Pa. 2003). As this Court has

explained:

        A claim has arguable merit where the factual averments, if
        accurate, could establish cause for relief.                 See
        Commonwealth v. Jones, 876 A.2d 380, 385 (Pa. 2005)
        (“if a petitioner raises allegations, which, even if accepted as
        true, do not establish the underlying claim . . . , he or she
        will have failed to establish the arguable merit prong related
        to the claim”). Whether the facts rise to the level of arguable
        merit is a legal determination.

        The test for deciding whether counsel had a reasonable basis
        for his action or inaction is whether no competent counsel
        would have chosen that action or inaction, or, the alternative,
        not chosen, offered a significantly greater potential chance of
        success. Counsel’s decisions will be considered reasonable if
        they effectuated his client's interests. We do not employ a
        hindsight analysis in comparing trial counsel's actions with
        other efforts he may have taken.

        Prejudice is established if there is a reasonable probability
        that, but for counsel’s errors, the result of the proceeding
        would have been different. A reasonable probability is a
        probability sufficient to undermine confidence in the
        outcome.

Commonwealth v. Stewart, 84 A.3d 701, 707 (Pa. Super. 2013) (some

quotations and citations omitted). “A failure to satisfy any prong of the test

for ineffectiveness will require rejection of the claim.” Stewart, 84 A.3d at

707.




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      Appellant claims that Attorney Stockey was ineffective for failing to: 1)

“conduct zealous cross-examination of the [] victim;” 2) “object to various

Commonwealth exhibits which were actually images of someone other than

the victim;” 3) “provide the trial court with a proper foundation to admit

evidence for social media that the first time the [] victim had sex was long

after she claimed [Appellant] had sex with her;” and, 4) “share[] the discovery

materials   with   [Appellant]   despite    [Appellant’s]   repeated   requests.”

Appellant’s Brief at 9. We will examine Appellant’s first three claims together.

      Appellant’s first three claims all concern matters of trial strategy. See

Commonwealth v. Brown, 161 A.3d 960, 965-966 (Pa. Super. 2017)

(holding that the trial counsel’s failure to cross-examine the sexual assault

victim was a reasonable trial strategy); Commonwealth v. Spotz, 870 A.2d

822, 832 (Pa. 2005) (“Counsel are not constitutionally required to forward any

and all possible objections at trial, and the decision of when to interrupt

oftentimes is a function of overall defense strategy being brought to bear upon

issues which arise unexpectedly at trial and require split-second decision-

making by counsel. The fact that an appellate court, reviewing a cold trial

record, cannot prognosticate a reasonable basis for a particular failure to raise

a plausible objection does not necessarily prove that an objectively reasonable

basis was lacking. Objections sometimes highlight the issue for the jury, and

curative instructions always do”). As we have explained:

        For matters of trial strategy, a PCRA petition[er] must
        provide an evidentiary basis on which to find trial counsel's
        actions unreasonable.     To prevail on [an ineffective

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       assistance of counsel] claim, . . . [a petitioner bears] the
       burden of showing that trial counsel had no reasonable basis
       for his [action or] inaction.

                                    ...

       In [Commonwealth v. Weiss, 81 A.3d 767 (Pa. 2013),] for
       example, the petitioner claimed [ineffective assistance of
       counsel] because his trial counsel did not ask for a cautionary
       instruction regarding prior bad acts evidence. Our Supreme
       Court rejected his claim because, though given a hearing, the
       petitioner failed to question trial counsel regarding his
       decision not to do so:

          Because Appellant was given an evidentiary hearing and
          yet did not elicit from trial counsel his reasons for failing
          to request the cautionary charge, and because the
          decision whether to seek a jury instruction implicates a
          matter of trial strategy, [Commonwealth v. Lesko, 15
          A.3d 345, 401 (Pa. 2011)], the record before us
          provides no grounds for deeming counsel
          ineffective for failing to request an instruction. See
          [Commonwealth v. Koehler, 36 A.3d 121, 147 (Pa.
          2012) (rejecting an ineffectiveness claim premised on
          counsel's failure to request cautionary instructions
          because the petitioner did not ask trial counsel about his
          strategy at the PCRA hearing); Commonwealth v.
          Puksar, [951 A.2d 267, 278 (Pa. 2008)] (rejecting an
          ineffectiveness claim because, inter alia, PCRA counsel
          failed to question trial counsel during the PCRA hearing
          regarding his trial strategy for not calling a particular
          witness); Commonwealth v. Ervin, 766 A.2d 859 (Pa.
          Super. 2000) (rejecting claim challenging trial counsel's
          failure to object to the prosecutor's questioning and
          argument on the reasonable basis prong of the
          ineffectiveness test because the PCRA petitioner was
          afforded an evidentiary hearing, but failed to question
          trial counsel regarding his trial strategy as it related to
          the claim of ineffectiveness).

       [Weiss, 81 A.3d at 801-802] (emphasis added).

       Moreover, a lawyer should not be held ineffective without first
       having an opportunity to address the accusation in some

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         fashion. In fact, our Supreme Court has cautioned against
         finding no reasonable basis for trial counsel's actions in the
         absence of supporting evidence. The fact that an appellate
         court, reviewing a cold trial record, cannot prognosticate a
         reasonable basis for a particular failure to raise a plausible
         objection does not necessarily prove that an objectively
         reasonable basis was lacking.

Commonwealth v. Reyes-Rodriguez, 111 A.3d 775, 783 (Pa. Super. 2015)

(en banc) (footnote and some quotations and citations omitted) (emphasis in

original).

      Appellant’s first three claims all implicate matters of trial strategy. Since

Appellant did not present Attorney Stockey at the PCRA hearing, Appellant

failed to satisfy his burden of production on the essential ineffective assistance

of counsel element that “the particular course of conduct pursued by counsel

did not have some reasonable basis designed to effectuate his interests.”

Fulton, 830 A.2d at 572. Therefore, Appellant’s first three appellate claims

are meritless.

      Finally, Appellant claims that Attorney Stockey was ineffective for not

“shar[ing] the discovery materials with [Appellant] despite [Appellant’s]

repeated requests.” Appellant’s Brief at 9. As the PCRA court explained, this

claim is meritless:

         [Appellant] claims that [Attorney Stockey] rendered
         ineffective assistance in that he never shared discovery
         materials with [Appellant]. This action, [Appellant] argues,
         rendered him unable to participate in his own defense. . . .

         [During the PCRA] hearing, [Appellant] testified that, prior to
         trial, he had received “a copy of the incident report and . . .
         some general discovery materials.” [N.T. PCRA Hearing,
         8/25/17, at 8. However, Appellant complained that Attorney

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        Stockey failed to provide him with] access to the images and
        videos that were ultimately presented at trial. . . . [According
        to Appellant, if he had been able to see the images and videos
        prior to trial, he would have been able to prove that they]
        depicted someone other than the victim.

        [Aside from Appellant’s PCRA testimony,] no evidence was
        presented to substantiate [Appellant’s] claim that the
        [images and videos] depicted someone other than the victim.
        . . . Even if [the PCRA court] accept[s] as true the [claim]
        that Attorney Stockey failed to provide [Appellant with the]
        discovery, we find that such unsupported testimony on the
        part of [Appellant] related to those depicted is insufficient to
        prove that he was prejudiced by the ineffective assistance of
        counsel. [Appellant’s] testimony does not convince [the]
        court that individuals other than the victim were, in fact
        depicted in the images and videos.

PCRA Court Opinion, 5/21/18, at 9 (some capitalization omitted).

      We agree with the PCRA court’s cogent analysis and conclude that

Appellant failed to prove that he was prejudiced by Attorney Stockey’s alleged

action. Therefore, Appellant’s final claim on appeal is meritless.

      As all of Appellant’s claims on appeal are meritless, we grant counsel’s

petition to withdraw and affirm the PCRA court’s order, which denied Appellant

relief on his ineffective assistance of counsel claims.

      Counsel’s petition to withdraw granted. Order affirmed.        Jurisdiction

relinquished.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



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Date: 9/5/2019




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