J-S56003-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                           IN THE SUPERIOR COURT OF
                                                             PENNSYLVANIA
                            Appellee

                       v.

TYLER JASON MINNGIA

                            Appellant                       No. 454 MDA 2014


                Appeal from the PCRA Order February 14, 2014
                 In the Court of Common Pleas of Berks County
              Criminal Division at No(s): CP-06-CR-0000024-2010


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

MEMORANDUM BY PANELLA, J.                             FILED SEPTEMBER 30, 2014

        Appellant, Tyler Jason Minngia, appeals from the order entered

February 14, 2014, by the Honorable Thomas G. Parisi, Court of Common
                                                                                   1



pet                                            -appointed counsel, Osmer S. Deming,

Esquire, has filed an application to withdraw as counsel.              After careful



application to withdraw as counsel.




____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
    42 PA.CONS.STAT.ANN. § 9541, et seq.
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        Following a jury trial on March 14, 2011, Minngia was convicted of

Burglary,    18    PA.CONS.STAT.ANN.           §   3502(a),    Criminal     Trespass,    18

PA.CONS.STAT.ANN.       §    3503(a)(1)(ii),       Receiving       Stolen   Property,    18

PA.CONS.STAT.ANN. § 3925(a), Recklessly Endangering Another Person, 18

PA.CONS.STAT.ANN.       §   2705,    and       Conspiracy,    18    PA.CONS.STAT.ANN.     §

903(a)(1). Minngia was subsequently sentenced by the trial court on March

15, 2011 to an aggregate period of not less than 5½ nor more than 15



docket no. CP-06-CR-59-2009. No post-sentence motions were filed. On

                                                                                        See

Commonwealth v. Minngia, 40 A.3d 198 (Pa. Super., filed Dec. 20, 2011)

(Table).

        On January 10, 2013, Minngia filed a pro se PCRA petition. The PCRA

court subsequently appointed counsel, and on September 30, 2013, counsel

filed an amended PCRA petition. Following a hearing held on December 16,

2013,                                                               See Order, 2/14/14.

This timely appeal followed.

                                                                      -appointed counsel

has submitted an Anders2 brief, which is procedurally proper for counsel




____________________________________________


2
    Anders v. California, 386 U.S. 738 (1967).



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J-S56003-14



seeking to withdraw on direct appeal. This appeal, brought after the denial

of his PCRA petition, is a collateral appeal.

      Pennsylvania    law   requires   counsel   seeking       to   withdraw   from

                                                           -

to Commonwealth v. Turner, 518 Pa. 491, 544 A.2d 927 (1988), and

Commonwealth v. Finley, 550 A.2d 213 (1988) (en banc).                         See

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

                                                   an Anders brief provides

greater protection to the defendant, we may accept an Anders brief in lieu

of a Turner/Finley               Commonwealth v. Fusselman, 866 A.2d

1109, 1111 n.3 (Pa. Super. 2004).        Accordingly, we will now proceed to

                                   ion to withdraw meets the criteria required

under a Turner/Finley analysis.

             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
                          -
      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

      withdraw; and (3) a statement advising petitioner of the right to
      proceed pro se or by new counsel.

                                       ***

             [W]here 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

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J-S56003-14


      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.

Commonwealth v. Doty, 48 A.3d 451, 454 (Pa. Super. 2012) (citation

omitted).

      Here,     counsel   has   complied    with   the   foregoing   procedural

requirements. Accordingly, we will proceed to examine whether any of the

issues counsel raises on appeal are of merit:

      I.
              adequately cross[-]examine Kimberly Weni[]ger and failing
              to impeach her testimony?

      II.     Was there prosecutorial misconduct on the part of the
              Commonwealth for failing to disclose that witness Henry
              Caraballo pleaded guilty prior to trial in exchange for a
              promise of a lenient sentence for testifying?

      III.                                                      failing to

              direct appeal?

Anders brief at 6 (unnecessary capitalization omitted).

                                                                             On

appeal from the denial of PCRA relief, our standard and scope of review is



the record and without legal error.   Commonwealth v. Edmiston, 65 A.3d

339, 345 (Pa. 2013) (citation omitted), cert. denied, Edmiston v.

Pennsylvania

the findings of the PCRA court and the evidence of record, viewed in the light




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Commonwealth v. Koehler, 36 A.3d 121, 131 (Pa. 2012) (citation

omitted).

       In order to be eligible for PCRA relief, a petitioner must plead and

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

arose from one or more of the errors listed at 42 PA.CONS.STAT.ANN.

§ 9543(a)(2). These issues must be neither previously litigated nor waived.

42 PA.CONS.STAT.ANN. § 9543(a)(3).                                     de novo

                                                              Commonwealth

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



prosecutorial misconduct is waived because it was not raised at trial or on

                                                              [f]or purposes of

this subchapter, an 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

                                                 PA.CONS.STAT.ANN. § 9544(b).

Minngia could have raised his allegation of prosecutorial misconduct at trial

or on direct appeal, but did not do so. Therefore, this issue is waived. 3



counsel as follows:


____________________________________________


3
  Minngia notably does not allege that counsel was ineffective for failing to
object to the alleged prosecutorial misconduct, nor does the record support
such an assertion.



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J-S56003-14


        In order for Appellant to prevail on a claim of ineffective
        assistance of counsel, he must show, by a preponderance of the
        evidence, 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

        demonstrate: (1) the underlying claim is of arguable merit; (2)
        that counsel had no reasonable strategic basis for his or her
        action or inaction; and (3) but for the errors and omissions of
        counsel, there is a reasonable probability that the outcome of
        the proceedings would have been different.

Commonwealth v. Johnson, 868 A.2d 1278, 1281 (Pa. Super. 2005).



the b                                Commonwealth v. Springer, 961 A.2d

1262, 1267-

Appellant satisfies each of the three prongs necessary to prove counsel

               Commonwealth v. Natividad, 595 Pa. 188, 208, 938 A.2d



                                                         Id., 595 Pa. at 207-

208, 938 A.2d at 321.

        Minngia first argues that trial counsel was ineffective for failing to

adequately cross-examine witness Kimberly Weniger. Specifically, Minngia



by showing her previous inconsistent statements that she allegedly made to

the police regarding her involvement in the burglary. See Anders brief at

13.




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      Pennsylvania Rule of Evidence 613(a) provides the following guidance

on impeachment by prior inconsistent statement:

                                                                   A
      witness may be examined concerning a prior inconsistent
      statement made by the witness to impeach the witness's
      credibility. The statement need not be shown or its contents
      disclosed to the witness at that time, but on request the
      statement or contents must be shown or disclosed to an adverse


Pa.R.E. 613(a) (emphasis added). Based on the clear language of the rule,

trial counsel is under no obligation to show or otherwise confront the witness

with the contents of the prior inconsistent statement attributed to the

witness. We therefore cannot find trial counsel ineffective for failing to do

something he was under no obligation to do.          We further note that our

review of the trial transcript reveals counsel aptly cross-examined the

witness regarding her prior inconsistent statements to police without

showing the witness the content her prior statements.          See N.T., Trial,

3/14/11 at 125-129. Accordingly, this claim fails.

      Lastly, Minngia argues that appellate counsel was ineffective for failing

to raise allegations of ineffective assistance of trial counsel on direct appeal.

See Anders brief at 21-22.      At the time of the direct appeal, it was well

                                             it to raise claims of ineffective

                                                           Commonwealth v.




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J-S56003-14


Grant, 572 Pa. 48, 67, 813 A.2d 726, 738 (2002).4



appeal was in perfect accordance with the law and did not preclude Minngia



final allegation of ineffective assistance of counsel to be unavailing.

       Based on the foregoing, we agree wit



                                                  -conviction relief and grant



       Order affirmed. Petition to withdraw as counsel is granted.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/30/2014


____________________________________________


4
  While the direct appeal was pending, this Court decided Commonwealth
v. Barnett, 25 A.3d 371 (Pa. Super. 2011) (en banc). In that case, the en
banc

                                    Id. at 377 (citing Commonwealth
v. Liston, 602 Pa. 10, 22, 977 A.2d 1089, 1096 (2009) (Castille, C.J.,
concurring)).



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