J-S05020-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                      IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                            Appellee

                       v.

JEFFREY WAYNE BAKER,

                            Appellant                  No. 755 MDA 2015


                   Appeal from the PCRA Order April 2, 2015
             In the Court of Common Pleas of Cumberland County
             Criminal Division at No(s): CP-21-CR-0000831-2007


BEFORE: BENDER, P.J.E., SHOGAN, and PLATT,* JJ.

MEMORANDUM BY SHOGAN, J.:                          FILED FEBRUARY 12, 2016

       Appellant, Jeffrey Wayne Baker, appeals from the order denying his

first petition for relief filed pursuant to the Post Conviction Relief Act

(“PCRA”), 42 Pa.C.S. §§ 9541-9546. In addition, counsel has filed a petition

seeking to withdraw. We grant counsel’s petition to withdraw and affirm the

order of the PCRA court.

       The PCRA court summarized the factual and procedural history as

follows:

                                  Statement of Facts

             On February 6, 2007, Detective Adam Shope of the East
       Pennsboro Police Department, Detective Earl Bock of the District
       Attorney’s Office, along with several other officers, served a
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
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       search warrant at 115 South Enola Drive in Enola, Pennsylvania.
       [Appellant], 34 year old Jeffrey Baker, resides at the address
       with his father, Jack Baker, and his stepmother, Ruth Murray.
       Officers were acting on cybertips reported through America
       Online’s (AOL) legal department that identified [Appellant’s]
       email account as containing images that appeared to be child
       pornography. Officers had a search warrant for [Appellant’s]
       computer and other computer hardware, software, CDs, DVDs
       which they believed to contain child pornography. [Appellant]
       was naked in bed sleeping when officers arrived, and his laptop
       computer was on a table by the side of his bed.

             [Appellant] told Detective Bock that he conducted web
       searches using the search term “anal gang bang” and
       downloaded files with names that led him to believe that they
       were child pornography, and that he had downloaded files as
       recently as the night before the search warrant. [Appellant] told
       Detective Bock that he used emails and a file-sharing website to
       trade nude and non-nude images of children.

             Detectives seized [Appellant’s] computer and other
       evidence from the residence and left without arresting
       [Appellant] at that time. [Appellant] told detectives that they
       would find child pornography on the seized computer.
       [Appellant’s] laptop computer was attached to a write-blocker,
       which is a device that prevents additional items from being
       added to the hard drive. The content was analyzed by the
       Pennsylvania State Police and by the National Children’s
       Resource Center. [Appellant’s] computer was found to contain
       34 video files of child pornography. Additional child pornography
       files were found on two CDs seized from [Appellant’s]
       bedroom.[1]


____________________________________________


1
  The files that were opened contained images of children as young as two
years old being sexually abused. The first report of Dr. Paula B. George, the
medical director of Children’s Resource Center of PinnacleHealth, stated,
“Many of these video/movie clips are of pre-school aged children being
subjected to sex acts including vaginal, anal, and oral penetration by adult
males or females.” Report, 6/1/08, at 2, Commonwealth Exhibit 19; N.T.,
7/14/08, at 175.



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                                   Procedural History

             A criminal complaint was filed on March 9, 2007, and
       [Appellant] was arrested on March 15, 2007. [Appellant] filed a
       Motion to Suppress on October 22, 2007. A hearing on the
       Motion was held before Judge J. Wesley Oler, Jr., on January 2,
       2008. [Appellant’s] Motion was denied. A jury trial was then
       held on July 14 and 15, 2008. [Appellant] was found guilty of
       [twenty-nine counts of sexual abuse of children and one count of
       criminal use of communication facility] and was ordered to
       submit to an assessment by the Sexual Offender Assessment
       Board. A hearing was held on April 20, 2009, to determine
       [Appellant’s] status as a Sexually Violent Predator. After the
       hearing and consideration of briefs submitted by the parties, the
       Court found [Appellant] to be a Sexually Violent Predator. On
       May 12, 2009, [Appellant] was sentenced to a term of state
       imprisonment for twenty-five to fifty years.      This was the
       mandatory minimum sentence required under 42 Pa.C.S.
       § 9718.2 and § 9795.1 of the Pennsylvania Sentencing Code.

             [Appellant] appealed his case to the Superior Court of
       Pennsylvania. On June 27, 2011, in a published opinion, the
       Superior Court affirmed [Appellant’s] judgment of sentence and
       found that he was properly determined to be a sexually violent
       predator. Commonwealth v. Baker, 24 A.3d 1006 (Pa. Super.
       2011). [Appellant] then appealed this decision to the Supreme
       Court of Pennsylvania. On October 30, 2013, in a published
       opinion, the Supreme Court affirmed [Appellant’s] twenty-five
       year mandatory minimum sentence for [Appellant’s] second
       conviction of possessing child pornography. Commonwealth v.
       Baker, 78 A.3d 1044 (Pa. 2013).

             [Appellant] filed this [timely2] Motion for Post-Conviction
       Collateral Relief pro se on March 6, 2014.          Counsel was
       appointed to represent [Appellant] and he was allowed to file an
       amended petition. On October 6, 2014, this Court granted
       permission for [Appellant’s] then PCRA counsel to withdraw. A
       new attorney was appointed to represent [Appellant] and he
       again was allowed permission to file an amended PCRA petition.
____________________________________________


2
  The Commonwealth stipulated at the PCRA hearing on April 2, 2015, that
the PCRA petition was timely. N.T. (PCRA), 4/2/15, at 3.



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       On January 20, 2015, [Appellant] filed an Amended Post-
       Conviction Relief Act petition alleging ineffective assistance of
       trial counsel. The hearing on the PCRA petition was held on
       April 2, 2015. This Court denied [Appellant’s] amended Post-
       Conviction Relief Act petition.

             On May 1, 2015, [Appellant] filed a Notice of Appeal to the
       Superior Court of Pennsylvania of the denial of his Post-
       Conviction Relief Act petition. On May 4, 2015, the Court
       ordered that [Appellant] file a Concise Statement of Errors
       Complained of on Appeal on or before May 25, 2015. On
       May 21, 2015, [Appellant’s] counsel filed a Statement of Intent
       to file an Anders/McClendon[3] brief.      [Appellant’s] counsel
       specifically stated “after a conscientious examination of the
       record, Counsel finds the appeal to be wholly frivolous.” This
       statement of intent to file an Anders/McClendon brief was filed in
       lieu of filing a Concise Statement of Errors Complained of on
       Appeal.[4]

PCRA Court Opinion, 6/9/15, at 1–4 (footnotes omitted).

       After Appellant’s counsel filed a notice of intent to withdraw, counsel

filed a petition to withdraw as counsel and a purported Turner/Finley5




____________________________________________


3
   Anders v. California, 386 U.S. 738 (1967); Commonwealth v.
McClendon, 434 A.2d 1186 (Pa. 1981).
4
    “[I]n lieu of a Concise Statement, . . . counsel will file an
Anders/McClendon brief in this matter. See Pa.R.A.P. 1925(c)(4).” PCRA
Court Opinion, 6/9/15, at 4. The PCRA Court Opinion, therefore, does not
address any issues.
5
   Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth
v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).




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brief.6   We will refer to counsel’s erroneously titled Anders brief as a

Turner/Finley brief.

       Prior to addressing Appellant’s claims on appeal, we must address

counsel’s petition to withdraw as counsel. When counsel seeks to withdraw

representation in a collateral appeal, the following conditions must be met:

       1)   As part of an application to withdraw as counsel, PCRA
       counsel must attach to the application a “no-merit” letter;

       2)    PCRA counsel must, in the “no-merit” letter, list each claim
       the petitioner wishes to have reviewed, and detail the nature
       and extent of counsel’s review of the merits of each of those
       claims;

       3)    PCRA counsel must set forth in the “no-merit” letter an
       explanation of why the petitioner’s issues are meritless;

       4)     PCRA counsel must contemporaneously forward to the
       petitioner a copy of the application to withdraw, which must
       include (i) a copy of both the “no-merit” letter, and (ii) a
       statement advising the PCRA petitioner that, in the event the
       trial court grants the application of counsel to withdraw, the
       petitioner has the right to proceed pro se, or with the assistance
       of privately retained counsel;


____________________________________________


6
   Counsel erroneously purports to withdraw under Anders v. California,
386 U.S. 738 (1967), which applies when counsel seeks to withdraw from
representation on direct appeal. When, as in this case, counsel seeks to
withdraw from representation on collateral appeal, the dictates of Finley and
Turner are applicable. Commonwealth v. Wrecks, 931 A.2d 717, 721
(Pa. Super. 2007) (counsel petitioning to withdraw from PCRA
representation must proceed not under Anders, but under Turner and
Finley).   Because an Anders brief provides greater protection to a
defendant, this Court may accept an Anders brief in lieu of a Turner/Finley
“no merit” letter. Commonwealth v. Reed, 107 A.3d 137, 139 n.5 (Pa.
Super. 2014).



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      5)    The court must conduct its own independent review of the
      record in light of the PCRA petition and the issues set forth
      therein, as well as of the contents of the petition of PCRA
      counsel to withdraw; and

      6)    The court must agree with counsel that the petition is
      meritless.

Commonwealth v. Daniels, 947 A.2d 795, 798 (Pa. Super. 2008) (internal

punctuation marks omitted) (citing Commonwealth v. Friend, 896 A.2d

607, 615 (Pa. Super. 2006)); see also Commonwealth v. Doty, 48 A.3d

451 (Pa. Super. 2012) (listing conditions to be met by counsel in seeking to

withdraw in collateral appeal.).

      Here, counsel described the extent of his review, identified and

evaluated issues, and concluded that the appeal is frivolous.    Counsel has

flagged issues relevant to this appeal and explained why, in his opinion, the

issues are without merit. In addition, counsel sent to Appellant copies of his

motion to withdraw and Turner/Finley brief filed in this Court, and a letter

advising Appellant of his right to retain new counsel or proceed pro se to

raise any issues he believes this Court should consider. Thus, we conclude

that counsel has substantially complied with the requirements necessary to

withdraw as counsel. See Commonwealth v. Karanicolas, 836 A.2d 940,

947 (Pa. Super. 2003) (holding that substantial compliance with the

requirements to withdraw as counsel will satisfy the Turner/Finley criteria).




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We now independently review Appellant’s claims to ascertain whether they

entitle him to relief.7

              Our review of a PCRA court’s decision is limited to
       examining whether the PCRA court’s findings of fact are
       supported by the record, and whether its conclusions of law are
       free from legal error.” Commonwealth v. Hanible, 612 Pa.
       183, 204, 30 A.3d 426, 438 (2011) (citing Commonwealth v.
       Colavita, 606 Pa. 1, 21, 993 A.2d 874, 886 (2010)). We view
       the findings of the PCRA court and the evidence of record in a
       light most favorable to the prevailing party. Id. . . . “The PCRA
       court’s credibility determinations, when supported by the record,
       are binding on this Court; however, we apply a de novo standard
       of    review    to    the   PCRA    court’s  legal   conclusions.”
       Commonwealth v. Roney, 622 Pa. 1, 16, 79 A.3d 595, 603
       (2013).

Commonwealth v. Mason, ___ A.3d ___, ___, 2015 WL 9485173 at *6

(Pa. 2015) (decided December 29, 2015).

____________________________________________


7
   On October 26, 2015, Appellant, pro se, filed in this Court a “Petition for
Appointment of Counsel and New Trial,” which has been deferred to this
panel for review. In the motion, Appellant avers that he “has repeatedly
been assigned the least qualified counsel the county courts could find.” Id.
at 1. Thus, Appellant requests appointment of different counsel. “While the
appointment of counsel in PCRA proceedings has been made mandatory by
our rules of criminal procedure, . . . appointed counsel possesses the
prerogative of declining to litigate a meritless petition. Commonwealth v.
Turner, 518 Pa. 491, 544 A.2d 927 (Pa. 1988).” Commonwealth v.
Albrecht, 720 A.2d 693, 699 (Pa. 1998). Moreover, where a right to
counsel exists, “a criminal defendant is not entitled to free counsel of his
own choosing.” Commonwealth v. Cook, 952 A.2d 594, 617 (Pa. 2008);
see also Commonwealth v. Ligons, 971 A.2d 1125, 1161 (2009)
(Castille, J., concurring). Further, this Court will not review the pro se filings
of a counseled appellant. Commonwealth v. Glacken, 32 A.3d 750, 752
(Pa. Super. 2011). To the extent the motion could be considered a response
to PCRA counsel’s request to withdraw, the motion’s assertions are
addressed in our independent review of this case. Thus, the Petition for
Appointment of Counsel and New Trial is denied.



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      Counsel identifies instances of trial counsel’s ineffectiveness in his

Turner/Finley brief.    Turner/Finley Brief at 12.       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).    Failure to establish any one of these prongs will

defeat an ineffectiveness claim.    Mason, ___ A.3d ___, ___, 2015 WL

9485173 at *7. Counsel is presumed to have rendered effective assistance

of counsel. Commonwealth v. Montalvo, 114 A.3d 401, 410 (Pa. 2015).

We have explained that trial counsel cannot be deemed ineffective for failing

to pursue a meritless claim. Commonwealth v. Loner, 836 A.2d 125, 132

(Pa. Super. 2003) (en banc).

      In the Turner/Finley brief, PCRA counsel asserts trial counsel was

ineffective for failing to call a computer expert as well as Appellant’s father

and stepmother as witnesses at the suppression hearing in this matter.

Turner/Finley Brief at 13. In the amended PCRA petition filed by counsel

on January 20, 2015, counsel asserted that Appellant’s father and

stepmother “could [have] provided testimony . . . that there was more than

one computer in the home connected to the internet, the fact that

[Appellant] was not informed that he was not under arrest, and that he did

not feel that he was free to leave.”    Amended PCRA Petition, 1/20/15, at


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¶ 18. The amended PCRA petition also asserted that an expert in computer

technology could have established “that there is no way to indicate who

accessed the IP address[8] that triggered the search and that other

individuals within several blocks of defendant’s home could have accessed

[Appellant’s] IP address . . . .” Id. at ¶ 19.

       Our Supreme Court has explained:

       It is undoubtedly true that a defense attorney’s failure to
       investigate potentially meritorious defenses or failure to
       interview witnesses whose testimony could prove beneficial and
       exculpatory can constitute ineffective assistance of counsel if no
       reasonable basis exists for counsel’s failure.               E.g.,
       Commonwealth v. Mabie, 467 Pa. 464, 359 A.2d 369 (1976).
       However, the value of a particular defense or witness’ testimony
       is not judged abstractly in the vacuum of what might have been
       but in the reality of what is; accordingly, the defendant must
____________________________________________


8
    An IP address has been described as follows:

       In order for computers to communicate with each other over the
       Internet,    protocols    known     as   Transmission    Control
       Protocol/Internet Protocols (TCP/IP) must be employed.
       Protocols are a specific set of rules or procedures that allow[]
       computers to understand each other. Each computer that is
       equipped to operate on the Internet uses the TCP which breaks
       the information being sent into tiny data packets and tags each
       packet with instructions for how to assemble the information in a
       coherent form. Each computer’s IP then tags each data packet
       with a destination IP address and a return IP address to allow
       the information to reach its intended destination and to be
       responded to. After an end user’s data has been broken down,
       tagged and addressed by TCP/IP, that end user’s computer
       transmits the data to the ISP, which reroutes it for delivery to
       the ultimate destination.

Concentric Network Corp. v. Commonwealth of PA, 877 A.2d 542, 544-
545 (Pa. Cmwlth. 2005).



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      sustain his burden of proving how the “road not taken” or the
      testimony of the uninterviewed witness would have been
      beneficial under the facts and circumstances of his case.
      Commonwealth v. Anderson, supra, 501 Pa. 287-288 at 461
      A.2d 214; Commonwealth v. Leonard, 499 Pa. 357, 453 A.2d
      587 (1982); Commonwealth v. McKenna, 498 Pa. 416, 446
      A.2d 1274 (1982).

Commonwealth v. McNeil, 487 A.2d 802, 806 (Pa. 1985).

      Moreover, to prevail on a claim of trial counsel’s ineffectiveness for

failure to call a witness, an appellant must prove: “(1) the witness existed;

(2) the witness was available; (3) trial counsel was informed of the existence

of the witness or should have known of the witness’s existence; (4) the

witness was prepared to cooperate and would have testified on appellant’s

behalf; and (5) the absence of the testimony prejudiced appellant.”

Commonwealth v. Chmiel, 889 A.2d 501, 545-546 (Pa. 2005) (citations

omitted).   Trial counsel’s failure to call a particular witness does not

constitute ineffective assistance without some showing that the absent

witness’s testimony would have been beneficial or helpful in establishing the

asserted defense.   Id.    Appellant must demonstrate how the testimony of

the uncalled witness would have been beneficial under the circumstances of

the case. Id.

      The reasons asserted by Appellant regarding the value of the

testimony do not support the conclusion that the witnesses’ testimony would

have been beneficial.     First, neither Jack Baker, Appellant’s father, nor his

wife could have testified regarding whether Appellant felt free to leave at


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the time police conducted their search. Second, their testimony would have

been merely cumulative, as Appellant himself testified at the suppression

hearing that his father had a computer and police had moved it from the

“computer room” to the living room.          N.T. (Suppression), 1/2/08, at 85.

Third, trial counsel testified at the PCRA hearing that he had “many

conversations” with Jack Baker, particularly during the time preceding the

suppression hearing. N.T. (PCRA), 4/2/15, at 31. Trial counsel testified that

the search ended at 2:30 p.m., and Mr. Baker did not arrive home until after

3:00 p.m.      Id.    Trial counsel also validated a memorandum dated

December 31, 2007, that he wrote during his investigation of the case,

which stated, inter alia, as follows:

      I spoke by phone on two occasions to Ruth Murray, stepmother
      of [Appellant]. I was calling to get her recollection of that day
      the police executed a search warrant on the house. She said
      that due to the medication she takes she has no short term
      memory. Specifically she does not remember much about the
      day in question. . . .[Stepmother] would not help the case if she
      testified.

N.T. (PCRA), 4/2/15, at 27.

      Regarding Appellant’s assertion that a computer expert “could have

told whether the IP address that the police officers linked to our house could

have been accessed by anybody else other than just me,” N.T. (PCRA),

4/2/15, at 18, the Turner/Finley brief points out that a computer expert

was not needed to provide that information. Turner/Finley Brief at 13.

      Suppression counsel testified at the PCRA hearing that he had
      the   information   he     needed    to   cross-examine   the

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       Commonwealth’s witnesses. In fact, suppression counsel was
       able to have the Commonwealth’s witness admit on cross -
       examination that “anybody in the house that’s on the computer
       would be working on that IP address.

Id. at 13–14 (quoting N.T. (PCRA), 4/2/15, at 18) (footnotes omitted).9

       The record supports the conclusion that the absence of the witnesses’

testimony did not prejudice Appellant. Chmiel, 889 A.2d at 546. Thus, trial

counsel’s failure to call them did not constitute ineffective assistance absent

some showing that their testimony would have been beneficial. Trial counsel

cannot be deemed ineffective for failing to pursue a meritless claim. Loner,

836 A.2d at 132.

       In summary, we conclude that Appellant’s issues lack arguable merit.

Moreover, having conducted an independent review of the record in light of

the PCRA petition and the issues set forth therein, as well as the contents of

counsel’s motion to withdraw and Turner/Finley brief, we agree that the

PCRA petition is meritless and permit counsel to withdraw.

       Petition   to   withdraw     granted.       Order   affirmed.   Petition   for

Appointment of Counsel and New Trial denied.




____________________________________________


9
   In addition to the video clips removed from Appellant’s computer seized
from his bedroom, the Commonwealth placed into evidence “multiple DVDs,”
also seized from Appellant’s bedroom, “containing dozens of video clips and
hundreds of photographs of children engaging in sex acts.” Baker, 78 A.3d
1046.



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/12/2016




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