J-S11004-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                         Appellee

                    v.

IRA NEAL GOLDBERG

                         Appellant                     No. 732 MDA 2014


                Appeal from the PCRA Order March 31, 2014
               In the Court of Common Pleas of York County
            Criminal Division at No(s): CP-67-CR-0004558-2011


BEFORE: PANELLA, J., OTT, J., and MUSMANNO, J.

MEMORANDUM BY PANELLA, J.                              FILED APRIL 07, 2015

      Appellant, Ira Neal Goldberg, appeals from the order denying his

petition for relief pursuant to the Post Conviction Relief Act. Additionally, his

appointed counsel, Marc J. Semke, Esquire, has filed a petition to withdraw

as counsel 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 grant permission to withdraw and affirm the PCRA

court’s order.

      The following history of Goldberg’s criminal conviction is taken from

this court’s memorandum resolving Goldberg’s direct appeal.

      Appellant and his wife (Wife) have been married for over 20
      years. At some point prior to June 2011, Wife began undergoing
      treatment for a pelvic mass that doctors believed might be
      malignant. Wife was scheduled to have the mass surgically
      removed on June 16, 2011. The operation was to be performed
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     by Dr. McCormick at York Gynecologic Oncology at the Apple Hill
     Women’s Center.

     On June 14, 2011, two days before the scheduled surgery, the
     couple received a phone call from Dr. McCormick’s office
     informing them that the surgery was cancelled. The office
     explained that it is their policy that surgical patients undergo
     pre-operative testing, including an electrocardiogram (EKG), a
     chest x-ray, and blood work.        If any of these test yields
     abnormal results, the patient is advised to see his or her family
     practitioner before he or she will be cleared for surgery. In this
     case, Wife’s EKG was abnormal and she was instructed that the
     scheduled surgery would be cancelled to allow her to follow-up
     with her family doctor who would determine whether she could
     be medically cleared for surgery.

     At approximately 1:30 p.m., after learning that the surgery was
     cancelled, Appellant telephoned Dr. McCormick’s office and
     spoke with medical assistant April Reisinger (Reisinger).
     Reisinger testified that Appellant was irate, screaming and
     cursing. At some point, Appellant told her “[Appellant and Wife]
     were going to show up [June 16, 2011] for her surgery or Dr.
     McCormick would be attending his own fucking funeral.”
     Reisinger “told him that was considered a threat and [Dr.
     McCormick’s office] could have him arrested for that.” She
     further informed him that she was not going to talk to him and
     he could call back once he had calmed down. She instructed
     Appellant to contact Wife’s primary care physician who “wanted
     her to have further cardiac testing before her surgery.”
     Reisinger reported the incident to her office manager, Karen
     Snider (Snider).

     A few minutes after the first phone call, Appellant called Dr.
     McCormick’s office again.      This time he spoke with office
     assistant Annette Travis (Travis). In contrast with the previous
     phone call to Reisinger, Travis described Appellant’s voice as
     “calm.” Appellant told Travis “the phone call has been made, my
     guns are on order and either [Wife’s] surgery will be done or Dr.
     McCormick will die on Thursday [June 16, 2011].”             Travis
     testified that she did not get the chance to respond because
     Appellant immediately disconnected the call. Travis reported the
     incident to Snider. Snider testified that after Travis reported the
     second phone call, she contacted York Hospital security and
     called the police.

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      At trial, Appellant admitted that he could have possibly made
      threats during the first phone call, but denied making any
      threats during the second phone call. Appellant also testified
      that he waited until he cooled down for a couple of minutes
      before making the second phone call.

      Based on the above, Appellant was charged with terroristic
      threats and harassment. On February 8, 2012, following a jury
      trial, Appellant was found guilty of terroristic threats. On March
      21, 2012, Appellant was sentenced to a term of five years’
      probation and 250 hours of community service.             No post-
      sentence motions were filed. Appellant filed a timely notice of
      appeal on April 19, 2012.

Commonwealth v. Goldberg, No. 781 MDA 2012, at 1-4 (Pa. Super.

January 3, 2013) (unpublished memorandum).

      On direct appeal, Goldberg challenged the sufficiency of the evidence

and two of the instructions the trial court had given the jury.     This Court

affirmed the judgment of sentence. Less than nine months later, Goldberg

filed a pro se petition pursuant to the PCRA. Attorney Semke was appointed

by the PCRA court and filed an amended petition.

      The PCRA court notified Goldberg of its intention to dismiss his

amended petition, and Goldberg filed a premature notice of appeal to this

court. However, on the next day, the PCRA court entered the order denying

the petition, rendering Goldberg’s notice of appeal timely.     See Pa.R.A.P.,

Rule 905(a)(5).

      We begin by addressing Attorney Semke’s petition to withdraw. Our

Supreme Court has summarized the procedure for withdrawal of court-

appointed counsel in collateral attacks on criminal convictions as follows:

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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).      Counsel in this case has complied

with the mandates of Turner and Finley, as summarized in Pitts, as well as

complying with the mandate of Widgins. Thus, we must determine whether

we agree with counsel’s assessment of Goldberg’s claims.

      Our standard of review of a PCRA court’s denial of a petition for post-

conviction relief is well-settled.   We must examine whether the record


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supports the PCRA court’s determination and whether the PCRA court’s

determination is free of legal error. See Commonwealth v. Hall, 867 A.2d

619, 628 (Pa. Super. 2005). The PCRA court’s findings will not be disturbed

unless there is no support for the findings in the certified record.       See

Commonwealth v. Carr, 768 A.2d 1164, 1166 (Pa. Super. 2001).                Our

scope of review is limited by the parameters of the PCRA.                  See

Commonwealth v. Heilman, 867 A.2d 542, 544 (Pa. Super. 2005).

      Goldberg first contends that the PCRA court erred in finding that he

could not establish prejudice from trial counsel’s failure to call two witnesses

at trial. We presume that counsel was effective and an appellant bears the

burden of proving otherwise. See Commonwealth v. Steele, 961 A.2d

215, 223 (Pa. 2007).

      To prevail on his ineffectiveness claims, Appellant must plead
      and prove, by a preponderance of the evidence, three elements:
      (1) the underlying legal claim has arguable merit; (2) counsel
      had no reasonable basis for his action or inaction; and (3)
      Appellant suffered prejudice because of counsel’s action or
      inaction.

Commonwealth v. Spotz, 18 A.3d 244, 260 (Pa. 2011) (citations omitted).

“A failure to satisfy any prong of the test for ineffectiveness will require

rejection of the claim.” Commonwealth v. Morrison, 878 A.2d 102, 105

(Pa. Super. 2005) (citation omitted). Counsel cannot be deemed ineffective

for failing to raise a meritless claim. See Commonwealth v. Fears, 86

A.3d 795, 803 (Pa. 2014).




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       The PCRA court found that Goldberg had not pled that either witness

was willing to testify on his behalf, nor had Goldberg pled that the absence

of this testimony was prejudicial. Attorney Semke, in his letter to Goldberg,

noted that both witnesses are attorneys with the Pennsylvania Office of

General Counsel. Both had received letters of complaint filed by Goldberg

against Dr. McCormick which were written after Goldberg had been charged

in this matter. Attorney Semke further asserted that the witnesses have no

direct knowledge of what occurred and that the proposed testimony was

irrelevant to the issues at trial.

       Goldberg did not respond to this letter, and therefore these assertions

are unchallenged before us. As a result, we can find no error in the PCRA

court’s conclusion that a hearing was unnecessary to determine the merit of

Goldberg’s ineffectiveness of counsel claims.

       In his final issue on appeal, Goldberg asserts that the PCRA court

erred in concluding that he could not establish prejudice from appellate

counsel’s failure to challenge, on appeal, the trial court’s denial of a request

for   a mistrial pursuant to         a   discovery violation committed by   the

Commonwealth. In his letter to Goldberg, Attorney Semke concluded that

the evidence at issue, an e-mail from Travis to Snider, was essentially

identical to Snider’s testimony at trial, as well as Snider’s statement in the

police report. Thus, Attorney Semke opined, the Commonwealth’s discovery

violation did not deprive Goldberg of a fair trial, and a mistrial was not an


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appropriate remedy. See Commonwealth v. Ligons, 773 A.2d 1231, 1237

(Pa. 2001).

         Once again, Goldberg does not contest this analysis.      We find this

analysis is an accurate assessment of the circumstances, and, as a result we

conclude that the PCRA court did not err in concluding that Goldberg could

not prove any prejudice arising from the failure to raise this claim on direct

appeal.     Our independent review of the record does not reveal any other

meritorious issues available to Goldberg.

         As we conclude that none of Goldberg’s issues on appeal have any

merit, we grant permission to withdraw and affirm the order of the PCRA

court.

         Order   affirmed.   Permission   to   withdraw   as   counsel   granted.

Jurisdiction relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/7/2015




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