J-S19038-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA              :       IN THE SUPERIOR COURT OF
                                          :             PENNSYLVANIA
            v.                            :
                                          :
KEITH ALLEN EBERT,                        :
                                          :
                  Appellant               :           No. 1349 EDA 2015

                     Appeal from the Order April 13, 2015
               in the Court of Common Pleas of Lehigh County,
              Criminal Division, No(s): CP-39-CR-0004816-2012

BEFORE: BENDER, P.J.E., STABILE and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                            FILED MAY 06, 2016

      Keith Allen Ebert (“Ebert”) appeals, pro se, from the Order entered on

April 13, 2015, wherein the court entered a Pa.R.Crim.P. 907 Notice of its

Intent to Dismiss Ebert’s first Petition under the Post Conviction Relief Act

(“PCRA”). See 42 Pa.C.S.A. §§ 9541–9546. We affirm.

      On June 5, 2013, following a jury trial, Ebert was found guilty of two

counts of driving under the influence. The trial court also found him guilty of

the summary charges of careless driving and disorderly conduct. On July 5,

2013, the trial court sentenced Ebert to an aggregate prison term of 1 year

and 45 days to 5 years and 45 days.               Ebert filed a Motion for

Reconsideration, which the trial court denied.    On October 24, 2014, this

Court affirmed Ebert’s judgment of sentence.        See Commonwealth v.

Ebert, 108 A.3d 122 (Pa. Super. 2014) (unpublished memorandum).
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      On December 3, 2014, Ebert filed a pro se PCRA Petition. The PCRA

court appointed Attorney Mathew J. Rapa, Esquire (“Rapa”), as counsel.

Rapa filed a “no-merit” letter pursuant to Turner/Finley,1 along with a

Motion to Withdraw as Counsel. The PCRA court granted Rapa’s Motion to

Withdraw. Thereafter, the PCRA court issued a Pa.R.Crim.P. 907 Notice of

Intent to Dismiss without a Hearing. Ebert filed a Notice of Appeal from the

Rule 907 Notice Order. Thereafter, on July 1, 2015, the PCRA court entered

an Order denying Ebert’s PCRA Petition.

      On appeal, Ebert raises the following questions for our review:

      1. Did the [PCRA] court err when it denied [Ebert’s] claims of
         ineffective assistance of counsel at his preliminary hearings
         and [where] trial counsel failed to move or litigate and/or file
         proper pre-trial/post-trial motions and particular[l]y did not
         correspond with [Ebert] after sentencing?

      2. Did the [PCRA] court err when it granted [Rapa’s] Motion to
         Withdraw as Counsel and[,] particular[l]y[,] his ineffective
         assistance of counsel?

      3. Did the [PCRA] court err when it denied that the
         Commonwealth establish a prima facie case in order for trial
         to proceed[;] thus, the trial court lack[ed] jurisdiction of the
         subject matter?

Brief for Appellant at 8 (capitalization omitted).2



1
  See Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988);
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
2
  We note that while Ebert raises three issues on appeal, he fails to divide
his argument section in accordance with Pa.R.A.P. 2119(a). See Pa.R.A.P.
2119(a) (stating that “[t]he argument shall be divided into as many parts as
there are questions to be argued[.]”).


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      Before reviewing the merits of an appeal under the PCRA, we must

determine whether we have jurisdiction to address Ebert’s appeal. It is well-

settled that “[a]n order granting, denying, dismissing, or otherwise finally

disposing of a petition for post-conviction collateral relief shall constitute a

final order for purposes of appeal.” Pa.R.Crim.P. 910. While an appeal may

be regarded as prematurely filed, it is perfected once a final order is

entered.      See Pa.R.A.P. 905(a)(5) (stating that “[a] notice of appeal filed

after the announcement of a determination but before the entry of an

appealable order shall be treated as filed after such entry and on the day

thereof.”).

      Here, Ebert filed a Notice of Appeal from the Rule 907 Notice, which

was not a final order. See Pa.R.A.P. 341; Pa.R.Crim.P. 910. However, the

record reveals that the PCRA court issued an Order of denial after Ebert filed

his Notice of Appeal.      Thus, because the PCRA court announced its final

determination with respect to Ebert’s PCRA Petition, and subsequently filed

its final Order, we will address his claims.         See Commonwealth v.

Swartzfager, 59 A.3d 616, 618 n.3 (Pa. Super. 2012) (concluding that

defendant’s appeal was not quashed even though he filed a notice of appeal

from the PCRA court’s Rule 907 notice because the PCRA court subsequently

entered a final order denying the PCRA petition); see also Pa.R.A.P.

905(a)(5).

            We review an order [denying] a petition under the PCRA in
      the light most favorable to the prevailing party at the PCRA


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      level. This review is limited to the findings of the PCRA court
      and the evidence of record. We will not disturb a PCRA court’s
      ruling if it is supported by evidence of record and is free of legal
      error.

Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa. Super. 2012) (citations

omitted).

      Ebert contends that his counsel was ineffective during his preliminary

hearing.    Brief for Appellant at 10-14.   Ebert argues that counsel should

have called potential prosecution witnesses at the preliminary hearing and

presented evidence to contest the existence of a prima facie case. Id. at

10, 12, 14.    Ebert also asserts that counsel should have moved for the

dismissal of the charges based upon deficiencies related to the preliminary

hearing. Id. at 11.3

      To succeed on an ineffective assistance of counsel claim, Ebert must

demonstrate by a preponderance of the evidence that

      (1) [the] 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 proceedings would have been different.

Commonwealth v. Ali, 10 A.3d 282, 291 (Pa. 2010). A failure to satisfy

any prong of the test for ineffectiveness will require rejection of the claim.

Commonwealth v. Martin, 5 A.3d 177, 183 (Pa. 2010).                 Counsel is



3
   We note that ineffective assistance of counsel claims relative to a
preliminary hearing are cognizable under the PCRA. See Commonwealth
v. Stultz, 114 A.3d 865, 882 (Pa. Super. 2015).


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presumed to be effective, and the burden is on the appellant to prove

otherwise. Commonwealth v. Hanible, 30 A.3d 426, 439 (Pa. 2011).

      Here, Ebert cannot establish actual prejudice relative to the alleged

errors that transpired at his preliminary hearing. Indeed, “once a defendant

has gone to trial and has been found guilty of the crime or crimes charged,

any   defect   in   the   preliminary   hearing   is   rendered   immaterial.”

Commonwealth v. Sanchez, 82 A.3d 943, 984 (Pa. 2013); see also

Stultz, 114 A.3d at 881.     Thus, because the truth-determining process is

not implicated, Ebert’s ineffectiveness of counsel’s claims in this regard are

without merit. See Commonwealth v. Lyons, 568 A.2d 1266, 1268 (Pa.

Super. 1989) (concluding that counsel was not ineffective where petitioner

had failed to show that “the absence of a preliminary hearing in any way

undermined the truth determining process so as to render unreliable the trial

court’s finding of guilt.”); see also Stultz, 114 A.3d at 881.

      Ebert additionally contends that trial counsel rendered ineffective

assistance of counsel for failing to file post-sentencing motions to raise

various sentencing issues.    Brief for Appellant at 14.     Ebert specifically

argues that counsel did not challenge the trial court’s failure to assess

whether he was addicted to drugs or alcohol. Id. Ebert further argues that

counsel failed to seek a sentence in the Recidivism Risk Reduction Incentive

(“RRRI”) program. Id.




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      Here, during sentencing, the trial court explicitly stated that Ebert

would undergo drug and alcohol abuse treatment. See N.T., 7/5/13, at 12.

The trial court also had the benefit of a pre-sentence investigation report.

Id. at 2; see also Commonwealth v. Antidormi, 84 A.3d 736, 761 (Pa.

Super. 2014) (stating that “[w]here pre-sentence reports exist, we shall ...

presume that the sentencing judge was aware of relevant information

regarding the defendant’s character and weighed those considerations along

with mitigating statutory factors.      A pre-sentence report constitutes the

record and speaks for itself.”). Moreover, aside from bald allegations, Ebert

has failed to demonstrate that he was eligible for the RRRI program. 4 Thus,

Ebert’s ineffectiveness claims are without merit.5

      Ebert next contends that the trial court lacked subject matter

jurisdiction. Brief for Appellant at 10, 13. It is well-settled that “all courts of

common pleas have statewide subject matter jurisdiction in cases arising

under the Crimes Code.” Commonwealth v. Bethea, 828 A.2d 1066, 1074




4
  At sentencing, the trial court noted that Ebert had a offense gravity score
of 1 and a prior record score of 5. N.T., 7/5/13, at 3. The trial court also
noted that Ebert had four prior DUIs. Id. at 4, 5.
5
  We note that Ebert also claims that counsel was ineffective for failing to file
pre-trial motions. Brief for Appellant at 10. However, Ebert does not
indicate which issues counsel failed to raise. See Pa.R.A.P. 2119(a). Thus,
this claim is waived.


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(Pa. 2003). Thus, Ebert’s contention is without merit.6

         Ebert finally contends that his PCRA counsel, Rapa, was ineffective for

stating that Ebert’s ineffectiveness claims with regard to the preliminary

hearing were without merit when withdrawing as counsel. Brief for Appellant

at 13.

         Initially, Ebert’s failure to raise his claim of ineffectiveness of PCRA

counsel in a response to the Rule 907 Notice results in waiver of his claim.

See Commonwealth v. Ford, 44 A.3d 1190, 1198 (Pa. Super. 2012)

(stating that “when counsel files a Turner/Finley no-merit letter to the

PCRA court, a petitioner must allege any claims of ineffectiveness of PCRA

counsel in a response to the court’s notice of intent to dismiss.”); see also

Commonwealth v. Pitts, 981 A.2d 875, 880 n.4 (Pa. 2009). In any event,

as noted above, Ebert’s underlying claims regarding alleged defects at the

preliminary hearing do not entitle him to relief. See Sanchez, 82 A.3d at

984. Thus, Rapa was not ineffective when stating that Ebert’s claims were




6
  To the extent Ebert claims that the trial court did not have subject matter
jurisdiction based upon errors at the preliminary hearing, we conclude that
this claim is without merit. As noted above, Ebert was found guilty following
a jury trial, rendering any defects at the preliminary hearing immaterial.
See Sanchez, 82 A.3d at 984.


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without merit in the Turner/Finley “no-merit” letter.7

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 5/6/2016




7
  We additionally observe that Rapa fulfilled all of the requirements to
withdraw pursuant to Turner/Finley. See Pitts, 981 A.2d at 876 n.1
(setting forth the requirements to withdraw as counsel in PCRA
proceedings); Commonwealth v. Widgins, 29 A.3d 816, 818 (Pa. Super.
2011) (noting that the Supreme Court in Pitts did not expressly overrule the
additional requirement imposed by this Court in Commonwealth v. Friend,
896 A.2d 607, 615 (Pa. Super. 2006)).


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