J-S13034-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                         Appellee

                    v.

DERRICK YOUNG

                         Appellant                  No. 1468 WDA 2013


            Appeal from the PCRA Order dated August 12, 2013
             In the Court of Common Pleas of Fayette County
             Criminal Division at No: CP-26-CR-0001352-2010


BEFORE: PANELLA, MUNDY, and STABILE, JJ.

MEMORANDUM BY STABILE, J.:                         FILED OCTOBER 9, 2014

      This post-conviction collateral appeal returns to this Court after we

remanded for filing of an opinion under Pennsylvania Rule of Appellate

Procedure 1925(a).       Pro se Appellant, Derrick Young, challenges the

dismissal of his first petition under the Post Conviction Relief Act (PCRA), 42

Pa.C.S.A. §§ 9541-46. After careful review, we affirm.

      A discussion of the facts is unnecessary, but may be reviewed in our

decision on direct appeal, Commonwealth v. Young, 38 A.3d 917, No. 810

WDA 2011, at 1-3         (Pa.   Super. filed Nov. 10, 2011) (unpublished

memorandum), appeal denied, 49 A.3d 443 (Pa. 2012).            Briefly, a jury

convicted Appellant of rape, aggravated assault, and numerous other crimes

of physical and sexual violence for his nighttime attack on a woman in

Connellsville, Fayette County. The trial court adjudged Appellant a sexually
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violent predator, and sentenced him to an aggregate of 15 to 30 years in

prison. He appealed to this Court, raising only one evidentiary issue, which

we found waived. Thereafter, Appellant filed his first PCRA petition raising

16 separate claims.        The PCRA court appointed counsel, who moved to

withdraw under Turner/Finley,1 contending the petition was meritless. The

PCRA court granted the motion to withdraw and dismissed the petition

without a hearing. This appeal followed.

       This Court examines PCRA appeals in the light most favorable to
       the prevailing party at the PCRA level. Our review is limited to
       the findings of the PCRA court and the evidence of record[.]
       Additionally, [w]e grant great deference to the factual findings of
       the PCRA court and will not disturb those findings unless they
       have no support in the record. In this respect, we will not
       disturb a PCRA court’s ruling if it is supported by evidence of
       record and is free of legal error.      However, we afford no
       deference to its legal conclusions. [W]here the petitioner raises
       questions of law, our standard of review is de novo and our
       scope of review is plenary.

Commonwealth v. Henkel, 90 A.3d 16, 20 (Pa. Super. 2014) (en banc)

(internal quotations and quotation marks omitted).        Furthermore, “[t]his

Court may affirm a PCRA court’s decision on any grounds if the record

supports it.”    Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa. Super.

2012).




____________________________________________


1
  Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).



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       It is difficult to understand the issues and arguments raised in

Appellant’s pro se brief. Nevertheless, review is not impossible, and we will

address the issues to the best of our ability.2      Appellant argues that he has

a right to counsel in his PCRA petition under the Sixth and Fourteenth

Amendments to the United States Constitution, and that PCRA counsel

rendered ineffective assistance by withdrawing under Turner/Finley. These

arguments have no merit.

       There is no federal right to counsel in state post-conviction

proceedings.      See Commonwealth v. Holmes, 79 A.3d 562, 581 (Pa.

2013).    Appellant appears to argue that he has a constitutional right to

counsel on a first PCRA petition, because it is the first time he could

challenge trial counsel’s effectiveness.         Whether a state post-conviction

petitioner “has a right to effective counsel in collateral proceedings which

provide the first occasion to raise a claim of ineffective assistance at trial” is

an open question. Martinez v. Ryan, 132 S. Ct. 1309, 1315 (2012). The

Martinez Court, however did not recognize a constitutional right to counsel

in state post-conviction proceedings.          Id.; see also Holmes, 79 A.3d at

581-82 (noting that Martinez’s holding is limited to whether there may be a
____________________________________________


2
  Appellant filed an unsolicited concise statement of errors complained of on
appeal. As we noted in our decision remanding for preparation of a Rule
1925(a) opinion, the law is unclear whether a gratuitous concise statement
binds an appellant to the issues raised in that concise statement. Due to
this uncertainty, we will address the merits of the issues raised in Appellant’s
brief.



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remedy in a federal habeas corpus proceeding for ineffective assistance of

post-conviction counsel). Appellant had a rules-based right to counsel on a

first PCRA petition. Henkel, 90 A.3d at 22 (quoting Pa.R.Crim.P. 904(C)).

His right to counsel, however, was vindicated when PCRA counsel was

permitted to withdraw under Turner/Finley. Here, counsel and the PCRA

court complied with Turner/Finley, and Appellant no longer has a right to

court-appointed counsel.

       Appellant also appears to argue that PCRA counsel rendered ineffective

assistance by withdrawing under Turner/Finley.          Appellant, however,

cannot raise PCRA counsel’s ineffectiveness for the first time on appeal.

Henkel, 90 A.3d at 20.

       Regarding the claims raised in Appellant’s pro se PCRA petition, the

trial court found that Appellant could not meet the test for ineffective

assistance of counsel.3 Appellant’s PCRA counsel, after review, determined

that the PCRA petition was meritless and petitioned to withdraw. The PCRA

court independently reviewed the record and reached the same conclusion.

The claims lacked either arguable merit, or Appellant could not show


____________________________________________


3
  “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.” Henkel, 90 A.3d at 30
(internal quotation omitted). “Where the petitioner fails to meet any aspect
of this test, his claim fails.” Id. (internal citation omitted).



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prejudice.   In addition, Appellant raised some claims for the first time on

collateral review. These claims include the improper removal of a black juror

by the judge and the failure of a hospital to present the victim’s medical

records. They are waived. See 42 Pa.C.S.A. §§ 9543(a)(3) (requiring PCRA

petitioner to plead and prove that claims are not waived), 9544(b) (“[A] 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 prior state

postconviction proceeding.”); see also Commonwealth v. Steele, 961

A.2d 786, 802 (Pa. 2008) (finding PCRA petitioner waived challenge to

admission of hair analysis evidence by failing to raise the issue on direct

appeal).

      Finally, the PCRA court ruled that Appellant is not entitled to relief

because he failed to allege or prove a “strong prima facie showing that a

miscarriage of justice may have occurred.”          PCRA Court Rule 1925(a)

Opinion, 8/7/14, at 4 (citing Commonwealth v. Fahy, 737 A.2d 214 (Pa.

1999), and Commonwealth v. Lawson, 549 A.2d 107 (Pa. 1988)). In so

ruling, the PCRA court applied the wrong legal standard. This is Appellant’s

first PCRA petition. The Lawson miscarriage of justice standard applies only

to second or subsequent PCRA petitions. See Fahy, 737 A.2d at 223 (“Th[e

Supreme C]ourt has determined that in reviewing claims for relief in a

second or subsequent collateral attack on a conviction and judgment of

sentence, the request will not be entertained unless a strong prima facie

showing is demonstrated that that a miscarriage of justice occurred.”)

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(emphasis added); Lawson, 549 A.2d at 112 (“We therefore conclude that

a second or any subsequent post-conviction request for relief will not be

entertained unless a strong prima facie showing is offered to demonstrate

that a miscarriage of justice may have occurred.”) (emphasis added).

Rather, a petitioner’s burden of proof in a first PCRA proceeding is by a

preponderance of the evidence. 42 Pa.C.S.A. § 9543(a); Commonwealth

v. Busanet, 54 A.3d 35, 45 (Pa. 2012). Nevertheless, the record supports

the dismissal of Appellant’s PCRA petition, and we may affirm on any

grounds supported by the record. Ford, 44 A.3d at 1194. Here, the record

supports the finding that Appellant’s ineffective assistance of counsel claims

lack arguable merit, or he cannot establish prejudice.      Also, Appellant’s

claims of trial court error are waived.

      Appellant has failed to establish reversible error committed by the

PCRA court. Accordingly, we affirm the order dismissing his petition.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/9/2014




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