J-S60037-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    ERICK ROBERT TROMETTER                     :
                                               :
                       Appellant               :   No. 966 MDA 2019

               Appeal from the PCRA Order Entered May 22, 2019
       In the Court of Common Pleas of Northumberland County Criminal
                  Division at No(s): CP-49-CR-0001348-2014


BEFORE: SHOGAN, J., STABILE, J., and PELLEGRINI, J.*

MEMORANDUM BY PELLEGRINI, J.:                       FILED NOVEMBER 26, 2019

        Erick Robert Trometter (Trometter), appeals from the order dismissing

his first petition filed pursuant to the Post Conviction Relief Act (PCRA), 42

Pa.C.S. §§ 9541-9546. Counsel for Trometter has filed a motion to withdraw

from representation and an Anders brief.1          We grant counsel’s petition to

withdraw and affirm the order of the PCRA court.


____________________________________________


*   Retired Senior Judge assigned to the Superior Court.

1 Counsel filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967),
instead of a Turner/Finley no-merit letter, which is the appropriate filing in
the PCRA context. See Commonwealth v. Turner, 544 A.2d 927 (Pa.
1988); 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 Turner/Finley
letter.” Commonwealth v. Widgins, 29 A.3d 816, 817 n.2 (Pa. Super.
2011) (citation omitted).
J-S60037-19


       On August 28, 2015, a jury found Trometter guilty of two counts of

aggravated assault and one count each of possession of a weapon, simple

assault and recklessly endangering another person.2 The charges stem from

an incident during which Trometter advanced, while brandishing a large knife,

toward the then-acting Chief of the Sunbury Police Department Brad Hare.

Despite the chief’s verbal commands that he drop the knife and use of a taser

on him, Trometter continued approaching Chief Hare. Trometter’s progression

towards Chief Hare stopped only when the chief shot him in the abdomen. On

December 21, 2015, the trial court sentenced Trometter to an aggregate term

of not less than four nor more than eight years’ incarceration.    This Court

affirmed the judgment of sentence on July 24, 2017. Trometter did not file a

petition for allowance of appeal with our Supreme Court.

       On January 2, 2018, Trometter, acting pro se, filed this timely PCRA

petition, later amended by appointed counsel, arguing that trial counsel for

Trometter provided ineffective assistance. At the PCRA hearing, trial counsel,

James Best, Esq. (Attorney Best), as well as appellate counsel on direct

appeal, Michael O’Donnell, Esq. (Attorney O’Donnell), testified.          The

allegations raised at the hearing concerned trial counsel’s failure to file a

motion to suppress statements made by Trometter to Pennsylvania State

____________________________________________


2 18 Pa.C.S. §§ 2702(a)(2), 2702(a)(6), 907(b), 2701(a)(3), and 2705,
respectively.




                                           -2-
J-S60037-19


Police Trooper Ronald Zanella while hospitalized;3 request a psychiatric

evaluation for Trometter; and obtain video of the incident from Chief Hare’s

vehicle. (See PCRA Court Order, 5/22/19, at 1-2). The PCRA court entered

its order dismissing the petition and Trometter timely appealed.4

       Counsel then filed her motion to withdraw from representation and her

Anders brief. In those circumstances:

              Counsel petitioning to withdraw from PCRA representation
       must proceed . . . under Turner, supra and Finley, supra
       and . . . must review the case zealously. Turner/Finley counsel
       must then submit a “no-merit” letter to the trial 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—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.

____________________________________________


3 When Trooper Zanella interviewed Trometter, he admitted that he had a
knife in his left hand and that he did not follow Chief Hare’s commands
because he was not going back to jail. (See N.T. Trial, 5/28/15, at 119-123).

4  Counsel filed a statement of intent to file an Anders/Santiago brief in lieu
of filing a Rule 1925(b) statement. See Pa.R.A.P. 1925(c)(4). The PCRA court
filed a statement in lieu of an opinion on July 19, 2019. See Pa.R.A.P.
1925(a).


                                           -3-
J-S60037-19


Commonwealth v. Walters, 135 A.3d 589, 591 (Pa. Super. 2016) (citation

omitted). If counsel has satisfied the above requirements, this Court must

then conduct its own review of the record and render an independent

judgment as to whether the appeal is without merit. Id. at 591.

       Upon review of counsel’s motion to withdraw and the appellate brief

submitted on Trometter’s behalf, we conclude that counsel has substantially

complied with the procedural requirements of Turner and Finley. Therefore,

we must proceed with our independent review of this case. See Walters,

supra at 591.

       The appellate brief raises claims challenging the assistance of trial

counsel.    (See Anders Brief, at 2-6).5         “Success on a claim of ineffective

assistance of counsel requires the petitioner to rebut the presumption that

counsel rendered effective assistance and prove, by a preponderance of the

evidence, that (1) the claim has arguable merit, (2) counsel’s action or

inaction was not based upon a reasonable trial strategy and (3) petitioner

suffered prejudice because of counsel’s act or omission.” Commonwealth v.

Williams, 141 A.3d 440, 454 (Pa. 2016) (citation omitted). “The failure to

satisfy any one of the prongs requires rejection of the petitioner’s claim.” Id.



____________________________________________


5 “When reviewing the denial of a PCRA petition, our standard of review is
limited to examining whether the PCRA court’s determination is supported by
evidence of record and whether it is free of legal error.” Commonwealth v.
Pew, 189 A.3d 486, 488 (Pa. Super. 2018), appeal denied, 200 A.3d 939 (Pa.
2019) (citation omitted).

                                           -4-
J-S60037-19


(citation omitted). “[C]ounsel will not be deemed ineffective for failing to raise

a meritless claim.”   Commonwealth v. Miller, 212 A.3d 1114, 1129 (Pa.

Super. 2019) (citation omitted).

      Instantly, Trometter claims that trial counsel was ineffective for failing

to file a motion to suppress the statements he made to Trooper Zanella while

he was hospitalized after he was shot. Trometter also argues that counsel

was ineffective for failing to request a psychiatric evaluation and for failing to

obtain video evidence from the police vehicle at the scene of the incident.

(See Anders Brief, at 4-6).

      At the PCRA hearing, Attorney Best testified that he has practiced

criminal law since 1991, primarily as a defense attorney. He averred that,

under circumstances where he believes that police violated his client’s rights

during an interrogation, his routine practice is to file a suppression motion.

(See N.T. PCRA, 4/29/19, at 13-14). Attorney Best further testified that he

did not recall any basis on which to file a suppression motion in this case and

that he has no regrets regarding his representation of Trometter. (See id. at

14-15).

      Regarding the lack of psychological evaluation, Attorney Best testified

that he had no difficulty whatsoever communicating with Trometter during

trial, and that there would have been no trial if Trometter were incompetent.

(See id. at 10). Additionally, at trial, Trooper Zanella testified that Trometter

was coherent during his interview, that he understood who the trooper was


                                      -5-
J-S60037-19


and why he was there, and that he responded appropriately to questions.

(See N.T. Trial, at 120).

      Finally, with respect to the video from the police cruiser referenced in

the State Police Evidence Log, Attorney Best testified that he did not recall

ever seeing the video, and that he did not know if the contents actually showed

anything.    (See N.T. PCRA, at 12).         He stated, “the Commonwealth

represented there was no such videos.”       (Id. at 11).   Attorney O’Donnell

testified that when he represented Trometter on direct appeal, he personally

contacted both the District Attorney’s Office and the local police department

in an attempt to locate any video documentation and that those offices had

none. (See id. at 17).

      After review of the record, we agree with the PCRA court’s conclusion

that Trometter’s claims lack arguable merit and that he failed to meet his

burden of establishing trial counsel’s ineffectiveness.

      Petition to withdraw granted. Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 11/26/2019




                                      -6-
