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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                        IN THE SUPERIOR COURT OF
                                                          PENNSYLVANIA
                             Appellee

                       v.

DOUGLAS NATHANIEL COLDEN

                             Appellant                    No. 21 MDA 2015


                Appeal from the PCRA Order December 3, 2014
               In the Court of Common Pleas of Bradford County
              Criminal Division at No(s): CP-08-CR-0000621-2005


BEFORE: PANELLA, J., WECHT, J., and STRASSBURGER, J.*

MEMORANDUM BY PANELLA, J.                           FILED NOVEMBER 30, 2015

        Appellant, Douglas Nathaniel Colden, appeals pro se from the order

entered on December 3, 2014, in the Court of Common Pleas of Bradford

County, which denied his petition filed pursuant to the Post Conviction Relief

Act (“PCRA”).1      Additionally, Colden’s court-appointed attorney, Robert G.

Fleury, Esq., has filed an application to withdraw his appearance pursuant to

Commonwealth            v.    Turner,      544   A.2d   927   (Pa.   1988),   and

Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988). After careful

review, we conclude that none of Colden’s claims of ineffective assistance of


____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
    42 Pa.C.S.A. §§ 9541-9546.
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counsel merit relief. Accordingly, we grant Attorney Fleury’s application to

withdraw and affirm the order dismissing Colden’s PCRA petition.

        The facts and procedural history may be summarized as follows.

Colden was accused of obtaining money at two banks and one grocery store

on the same day by requesting repetitive, confusing currency exchanges,

known as a “shortchange” scheme. After a jury trial, Colden was convicted

of three counts of theft by deception.2 The trial court later sentenced him to

an aggregate term of 42 months’ to 12 years’ imprisonment.

        The trial court denied Colden’s post-sentence motions.      This Court

affirmed the judgment of sentence, and our Supreme Court denied his

petition for allowance of appeal.

        Thereafter, Colden filed a PCRA petition pro se. Attorney Fleury was

appointed to represent Colden.           The PCRA court subsequently dismissed

Colden’s petition as meritless, after providing Rule 907 notice. This timely

appeal followed.

        Attorney Fleury has filed a petition for leave to withdraw and a no-

merit letter.      Our Supreme Court has summarized the procedure for

withdrawal of court-appointed counsel in collateral attacks on criminal

convictions as follows.



____________________________________________


2
    18 Pa.C.S.A. § 3922.



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     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.

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

omitted). Additionally, this Court has added a requirement

     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.

Commonwealth v. Widgins, 29 A.3d 816, 818 (Pa. Super. 2011)

(emphasis omitted; citation omitted).

     Attorney Fleury complied with the mandates of Turner and Finley, as

summarized in Pitts, as well as with the mandate of Widgins. Colden filed

a response to Attorney Fleury’s Finley letter, as well as a separate “motion




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for relief.3”   We must now determine whether we agree with counsel’s

assessments of Colden’s claims.

       “Our standard of review of a trial court order granting or denying relief

under the PCRA calls upon us to determine whether the determination of the

PCRA court is supported by the evidence of record and is free of legal error.”

Commonwealth v. Barndt, 74 A.3d 185, 191-192 (Pa. Super. 2013)

(citation omitted).     We review the PCRA court’s legal conclusions de novo.

See Commonwealth v. Spotz, 18 A.3d 244, 259 (Pa. 2011) (citation

omitted).

       On appeal, Colden raises three ineffective assistance of counsel issues

for our review.       In reviewing an allegation of ineffective assistance of

counsel, we begin with the assumption that counsel was effective.          See

Commonwealth v. Pierce, 527 A.2d 973, 975 (Pa. 1987). “To plead and

prove ineffective assistance of counsel a petitioner must establish: (1) that

the underlying issue has arguable merit; (2) counsel’s actions lacked an

objective reasonable basis; and (3) actual prejudice resulted from counsel’s

act or failure to act.” Commonwealth v. Stewart, 84 A.3d 701, 706 (Pa.

Super. 2013) (en banc) (citation omitted). If the petitioner “fails to plead or

meet any elements of the above-cited test, his claim must fail.” Id. (citation

omitted).
____________________________________________


3
 We deny this motion. Colden’s response adds nothing to our analysis and
has no merit.



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       “Arguable merit exists when the factual statements are accurate and

could establish cause for relief. Whether the facts rise to the level of

arguable merit is a legal determination.” Commonwealth v. Barnett, 121

A.3d 534, 540 (Pa. Super. 2015) (citation omitted).

       “[A] defendant [raising a claim of ineffective assistance of counsel] is

required to show actual prejudice; that is, that counsel’s ineffectiveness was

of such magnitude that it ‘could have reasonably had an adverse effect on

the outcome of the proceedings.’”     Commonwealth v. Gribble, 863 A.2d

455, 472 (Pa. 2004) (citation omitted).

      In his first issue, Colden contends that the PCRA court erred in

concluding that trial counsel was not ineffective for failing to hire an

independent investigator. As to this claim, the PCRA court concluded that

Colden could not articulate any specific details as to what an independent

investigator would have found and how the outcome of the trial would have

been affected as a result.   We agree with the PCRA court’s reasoning and

conclude that Colden has failed to establish that the underlying claim has

arguable merit.    Thus, Colden failed to establish his claim for ineffective

assistance of counsel, and we agree with Attorney Fleury that Colden’s first

issue merits no relief.

      In his second issue, Colden asserts that the PCRA court erred in

concluding that trial counsel was not ineffective for failing to object to the

identification testimony at trial. The PCRA court rejected this claim on the


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basis that it had been addressed by the trial court in Colden’s post-trial

motions and by this Court on appeal.

      This ineffective assistance of counsel claim was not previously

litigated. “A claim is deemed to be previously litigated under the PCRA if the

highest appellate court in which the petitioner could have had review as a

matter of right has ruled on the merits of the issue.” Commonwealth v.

Zook, 887 A.2d 1218, 1226-1227 (Pa. 2005) (citing 42 Pa.C.S.A. §

9544(a)(2)). In Colden’s direct appeal, he asserted that the trial court erred

by failing to give a Kloiber instruction to the jury because the pre-trial

identification was unduly suggestive and the identification testimony of the

witnesses at trial was unreliable.     See Commonwealth v. Colden, 1313

MDA 2006, at 3-6 (Pa. Super., filed 8/1/07) (unpublished memorandum).

Ineffective assistance of counsel was never at issue on direct appeal. In any

event, we agree with the PCRA court that Colden is not entitled to relief.

See Commonwealth v. Wiley, 966 A.2d 1153, 1157 (Pa. Super. 2009)

(“[W]e may affirm the decision of the [PCRA] court if there is any basis on

the record to support the [PCRA] court’s action; this is so even if we rely on

a different basis in our decision to affirm.”).

      In fashioning its holding in Colden’s direct appeal, this Court ruled on

the underlying merits of the issue at hand when it determined that there was

no basis for a cautionary instruction under Kloiber because the identification

testimony at trial was reliable. The panel further explained that “even if we


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were to find that the pre-trial identification was unduly suggestive, the

Commonwealth          has   established    an   independent   basis   for   these

identifications.” Colden, 1313 MDA 2006, at 5. The panel noted that

      [e]ach witness had a clear opportunity to observe [Colden] face-
      to-face in close quarters, either across a teller window or
      cashier’s counter.   Each incident took place in well-lighted
      business establishments and was measureable in minutes rather
      than seconds. Thus, each victim had ample opportunity to
      observe [Colden]….

Id.

      Trial counsel had no viable basis upon which to object to the

identification.     Thus, an assertion that trial counsel was ineffective lacks

arguable merit. Colden failed to establish his claim for ineffective assistance

of counsel, and we agree with Attorney Fleury that Colden’s second issue

merits no relief.

      Finally, in his third issue, Colden asserts that the PCRA court erred in

concluding that trial counsel was not ineffective for failing to object to the

testimony of the grocery store clerk.       The store clerk testified that on the

day that Colden conducted a shortchange transaction at the store, she had

been informed by an employee of the Peoples State Bank that Colden had

been at the bank and changed a lot of money there as well. See N.T. Trial,

5/23/06, at 33-34. Colden argues that counsel should have objected to the

statement as inadmissible hearsay, or alternatively, moved for a mistrial on

the basis that the statement was overly prejudicial.




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      The PRCA court concluded that counsel did not err in failing to object

to this statement because although the statement constituted hearsay, it

was not prejudicial to Colden because it was the testimony of an employee

of one of the other victims in the case.

      We disagree with the PCRA court’s reasoning, but we agree with its

conclusion. We do not consider the hearsay statement to be non-prejudicial

merely because it was uttered by an employee of one of the other victims in

the case.   It is clear from the record that the grocery store clerk testified

that the bank employee specifically identified Colden as the person who

changed a lot of money with the bank.          See id.   This statement was

incriminatory of the defendant, and its admission constituted prejudicial

hearsay.

      Nevertheless, Colden’s claim must fail because he has failed to show

how counsel’s failure to object to the statement had an actual adverse effect

on the outcome of the proceedings. Based on our review of the record, we

find that the properly admitted evidence overwhelmingly establishes

Colden’s guilt, and we can find no reasonable probability that had the

statement not been admitted, the result would have been different. Thus,

the admission of the statement did not result in actual prejudice.

      Accordingly, we find that Colden failed to establish his claim for

ineffective assistance of counsel, and we agree with Attorney Fleury that

Colden’s final issue merits no relief.


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          As a result, we concur with Attorney Fleury’s conclusion that Colden’s

appeal is wholly without merit.         We therefore grant Attorney Fleury’s

application to withdraw, and affirm the PCRA court’s order denying PCRA

relief.

          Order affirmed.   Petition to withdraw as counsel granted.     Motion

denied.




          Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/30/2015




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