J-S02003-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,               IN THE SUPERIOR COURT OF
                                                  PENNSYLVANIA
                       Appellee

                  v.

CORNELL RICHARDS,

                       Appellant                 No. 783 EDA 2015


            Appeal from the PCRA Order February 18, 2015
           In the Court of Common Pleas of Delaware County
          Criminal Division at No(s): CP-23-CR-0003093-2012


COMMONWEALTH OF PENNSYLVANIA,               IN THE SUPERIOR COURT OF
                                                  PENNSYLVANIA
                       Appellee

                  v.

CORNELL RICHARDS,

                       Appellant                 No. 784 EDA 2015


            Appeal from the PCRA Order February 18, 2015
           In the Court of Common Pleas of Delaware County
          Criminal Division at No(s): CP-23-CR-0005615-2012


COMMONWEALTH OF PENNSYLVANIA,               IN THE SUPERIOR COURT OF
                                                  PENNSYLVANIA
                       Appellee

                  v.

CORNELL RICHARDS,

                       Appellant                 No. 785 EDA 2015


              Appeal from the PCRA Order February 18, 2015
J-S02003-16


             In the Court of Common Pleas of Delaware County
            Criminal Division at No(s): CP-23-CR-0005616-2015


BEFORE: SHOGAN, LAZARUS, and STABILE, JJ.

MEMORANDUM BY SHOGAN, J.:                       FILED FEBRUARY 25, 2016

      Appellant, Cornell Richards, 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 motion to withdraw and affirm the order of

the PCRA court.

      We previously summarized the facts of the crimes and initial

procedural history as follows:

            The underlying three criminal cases involved the same
      complainant, Appellant’s former girlfriend. In CR-3093-2012,
      the Commonwealth charged Appellant with, inter alia, simple
      assault and criminal mischief after police officers responded to a
      domestic dispute on January 24, 2012.           In CR-5616-2012,
      Appellant was charged with, inter alia, simple assault, theft by
      unlawful taking, and robbery after an officer observed a
      domestic dispute on April 28, 2012.5            In CR-5615-2012,
      Appellant was charged with, inter alia, intimidation of a witness
      or victim after the complainant, on July 2, 2012, told officers
      that Appellant called and sent her text messages asking her to
      drop the charges against him.
            5
              By the time of the second incident, the complainant
            discovered that she was pregnant with Appellant’s
            child and had also contracted a sexually transmitted
            disease from him.

            Appellant obtained private counsel, Kevin Wray, Esq. (“trial
      counsel”) and proceeded to a consolidated nonjury trial on
      November 20, 2012. The following day, the trial court found him
      guilty in CR-3093-2012 of simple assault, in CR-5616-2012 of


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     simple assault, theft by unlawful taking, and robbery, and in CR-
     5615-2012 of intimidation of a witness or victim, which the court
     graded as a second-degree misdemeanor.6 On January 30,
     2013, the court sentenced Appellant to six to twenty-four
     months’ imprisonment for robbery,7 a consecutive six to twenty-
     four months’ imprisonment for intimidation of a witness or
     victim, and a consecutive two years’ probation for simple
     assault. The aggregate sentence for the three cases was one to
     four years’ imprisonment followed by two years’ probation.
           6
              The trial court found Appellant not guilty of the
           charge of criminal mischief in CR-3093-2012. The
           remaining charges against Appellant in the three
           cases were dismissed prior to trial.
           7
              The trial court merged the simple assault and theft
           into the count of robbery in CR-5616-2012.

                                       * * *

     Counsel from the Office of the Public Defender entered an
     appearance on February 28th and, that same day, filed . . .
     notices of appeal in each of the three underlying cases.

Commonwealth v. Richards, 733, 735, 737 EDA 2013, 93 A.3d 505 (Pa.

Super. filed December 10, 2013) (unpublished memorandum at 2–4) (some

footnotes omitted).

     On appeal to this Court, direct appeal counsel sought to withdraw after

identifying a challenge to the sufficiency of the evidence underlying

Appellant’s intimidation-of-a-witness-or-victim conviction as having arguable

merit.   We determined that the identified issue lacked merit, and after

conducting an independent review of the record, we concluded that there

were “no non-frivolous questions for appeal.”       Richards, (unpublished

memorandum at 11).      Thus, we affirmed the judgment of sentence and


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granted counsel’s petition to withdraw on December 10, 2013.                  Id.

Appellant did not file a petition for allowance of appeal to the Pennsylvania

Supreme Court.

       On November 25, 2014, by private counsel, Appellant filed a timely

PCRA petition.       Following receipt of an answer by the Commonwealth, the

PCRA court held an evidentiary hearing on February 11, 2015.           The PCRA

court denied the petition on February 18, 2015.          By letter dated March 1,

2015, Appellant requested the appointment of appellate counsel, which the

PCRA court granted on March 10, 2015. On March 17, 2015, Appellant filed

the instant notice of appeal.

       The PCRA court ordered the filing of a statement pursuant to Pa.R.A.P.

1925. Following the grant of Appellant’s motion for extension of time to file

the concise statement, and in response to the Rule 1925 order, Appellant’s

counsel filed a notice of intent to withdraw,1 and thereafter filed a petition to

withdraw        as      counsel        and       a   purported    Turner/Finley2



____________________________________________


1
   Appellant’s Pa.R.A.P. 1925 statement states, “In accordance with
[Pa.R.A.P.] 1925(c)(4), counsel informs the court that he intends to file an
Anders brief with the Superior Court.” Concise Statement, 3/21/13, at 1.
Pa.R.A.P. 1925(c)(4) states, “In a criminal case, counsel may file of record
and serve on the judge a statement of intent to file an Anders/McClendon
brief in lieu of filing a Statement.”
2
   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.3   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;

____________________________________________


3
    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). We note that elsewhere in his filings, counsel refers to the
Turner/Finley standard for withdrawal. 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).
J-S02003-16


      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, evaluated the issues,

and concluded that the appeal is frivolous.   Counsel has also listed issues

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

without merit. In addition, counsel has included a letter sent to Appellant

containing a copy of his motion to withdraw and a statement advising

Appellant of his right to proceed pro se or through privately-retained

counsel. 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




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Turner/Finley criteria). We now independently review Appellant’s claims to

ascertain whether they entitle him to relief.4

       Counsel identifies the following issues in the Turner/Finley brief:

              Whether [A]ppellant’s trial counsel was ineffective for
       failing to obtain certain discovery prior to the commencement of
       trial?

             Whether the evidence was insufficient to sustain the
       conviction for Intimidation of Witnesses or Victims since the
       Commonwealth failed to prove that [Appellant] actually
       intimidated a witness or victim?

Turner/Finley Brief at 7.

       To be entitled to PCRA relief, an appellant must establish, by a

preponderance of the evidence, that 1) his conviction or sentence resulted

from one or more of the enumerated errors in 42 Pa.C.S. § 9543(a)(2);

2) his claims have         not been previously litigated or     waived,   id. at

§ 9543(a)(3); and 3) the failure to litigate the issue prior to or during trial or

on direct appeal could not have been the result of any rational, strategic, or

tactical decision by counsel. Id. at § 9543(a)(4). We address Appellant’s

issues in reverse order.

       Counsel’s sufficiency-of-the-evidence issue relating to Appellant’s

conviction for intimidation of witnesses is waived because he failed to make

any argument regarding this claim in his brief.            Commonwealth v.

____________________________________________


4
    We note that Appellant has not filed either a pro se brief or retained
alternate counsel for this appeal.



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Woodard, ___ A.3d ___, 2015 WL 7767271, 692 CAP (Pa. 2015) (decided

December 3, 2015) (The appellant’s failure to identify substance of particular

pretrial motion at issue and failure to set forth any argument whatsoever in

support of claim constitutes waiver); Commonwealth v. Bullock, 948 A.2d

818, 823 (Pa. Super. 2008) (holding that issue identified on appeal but not

properly developed in appellate brief is waived).

       Moreover, we addressed this specific issue in Appellant’s direct appeal.

Therein, this Court concluded that “a sufficiency challenge to Appellant’s

conviction of intimidation of a witness or victim, graded as a second-degree

misdemeanor, was frivolous.” Richards, (unpublished memorandum at 10).

Therefore, this claim was previously litigated, as well.    See 42 Pa.C.S. §

9543(a)(3) (“To be eligible for relief, . . . the petitioner must plead and

prove . . . [t]hat the allegation of error has not been previously

litigated . . . .”).

       Appellant’s other issue asserts the ineffective assistance of trial

counsel for failure to file post-sentence motions; however, Appellant does

not delineate the basis for the motion.     We gain some insight by way of

counsel’s explanation in his brief concerning why the issue is frivolous.

Turner/Finley Brief at 11. There, counsel maintains as follows:

             This issue is frivolous, however, since [Appellant] filed a
       pro se motion for reconsideration of sentence asserting
       mitigating circumstances were present and that discovery was
       incomplete and raised a claim of insufficiency of evidence on
       direct appeal.    The issues raised by [Appellant’s] pro se
       pleadings were addressed by the trial judge and denied.

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       Furthermore, [Appellant’s] sufficiency of evidence claim was
       raised on direct appeal, the record reviewed by the Superior
       Court and subsequently denied.                [Appellant] was still
       represented by counsel when he file[d] his pro se motions. The
       result is that trial counsel’s failure to file post sentence motions
       is now a legal nullity which did not preserve his sentencing
       claims. Commonwealth v. Nischan, 928 A.2nd 349, 355. The
       Superior Court determined that the trial court had conducted a
       presentence investigation, referenced applicable guidelines and
       provided a thorough statement of reasons for imposing a
       sentence within the standard range concluding that no colorable
       discretionary sentencing claims exist. [Richards, (unpublished
       memorandum at 11 n.10)[5]].

____________________________________________


5
    We stated on direct appeal:

       [I]n his pro se post sentence motions, Appellant sought to have
       his sentence modified based on his assertions that “mitigating
       circumstances were present . . . given that ‘the discovery was
       incomplete, anger management was completed without being
       informed by the court, and he was also in the process of
       completing college, and had no priors, only current summary
       offenses.’” Appellant’s Pro Se Mot. for Recons. Of Sentence,
       2/4/13.

             However, because Appellant was represented by counsel
       when he filed his motions to modify the sentence pro se, they
       were legal nullities that did not operate to preserve his
       sentencing claims. See [Commonwealth v.] Nischan, 928
       A.2d [349] at 355 [(Pa. Super. 2007)]. In any event, the trial
       court had a presentence investigation report at the time of
       sentencing, expressly referenced the guideline sentences
       suggested by the Sentencing Code, and provided a thorough
       statement of reasons for its imposition of standard range,
       consecutive sentences.       See N.T., 1/30/12,at 16-24.
       Accordingly, our review reveals no colorable discretionary
       sentencing claims in this appeal.           See generally,
       Commonwealth v. Moury, 992 A.2d 162, 171 (Pa. Super.
       2010).

Richards, (unpublished memorandum at 11 n.10.



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Turner/Finley Brief at 11–12.

      We note that on direct appeal, this Court addressed the filing of

Appellant’s pro se post-sentence motions as follows:

      Appellant, acting pro se, sent to the trial court motions to
      reconsider the sentences on February 4, 2013, although the
      court did not grant trial counsel leave to withdraw.8      No
      counseled post-sentence motions were filed on behalf of
      Appellant. However, the court denied the pro se post-sentence
      motions on February 14th.
             8
                  Instantly, the trial court properly forwarded
             Appellant’s pro se motions to the clerk of the courts.
             See Pa.R.Crim.P. 576(A)(5). However, because the
             record does not show that the court granted trial
             counsel     leave   to    withdraw,     Appellant was
             represented by counsel when he delivered his pro se
             motions to the court. See Pa.R.Crim.P. 120(A)(4).
             Accordingly, Pa.R.Crim.P. 576(A)(4) required that
             the clerk of courts accept Appellant’s pro se motions,
             time stamp them, place them in the files, and
             forward timestamped copies to trial counsel. See
             Pa.R.Crim.P.      576(A)(4).        Furthermore,   the
             prohibition on “hybrid representation” precluded the
             trial court from ruling on the merits of Appellant’s
             pro se motions. See Commonwealth v. Nischan,
             928 A.2d 349, 355 (Pa. Super. 2007) (describing
             counseled defendant’s pro se post-sentence motion
             as “a nullity, having no legal effect”).

      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). A claim of ineffectiveness

will be denied if the petitioner’s evidence fails to meet any one of these


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

      It is clear that the underlying issue lacks arguable merit.          In

addressing this issue, the PCRA court explained as follows:

            The trial attorney was remiss in not lodging on
      [Appellant’s] behalf post-sentence motions. Even appreciating
      his testimony at the PCRA hearing that after verdict and before
      sentencing [Appellant] was repeatedly raising claims of
      incompetent stewardship, in the absence of a successor lawyer
      entering of-record his or her appearance, trial counsel should
      have lodged the requested post-sentence motions or
      alternatively, and consistent with his admonishment to
      [Appellant] that he would need to secure representation by
      another lawyer[,] filed a petition to withdraw appearance.
      Although [Appellant’s] trial attorney neither filed post-sentence
      motions nor a withdrawal petition, the same on the record at bar
      does not warrant [PCRA] remedy.

             As adduced at the PCRA hearing, [Appellant] sought to
      have trial counsel lodge post-sentence motions challenging the
      sufficiency of the prosecution’s trial evidence and seeking to
      have this court reconsider its sentence. Regarding a challenge
      to the legal adequacy of the Commonwealth’s trial evidence, the
      same was reviewed and decided adverse to [Appellant] on direct
      appeal by the Superior Court. Because this legal sufficiency
      claim has been previously litigated, it simply cannot be a viable
      basis for the now sought after collateral relief. 42 Pa.C.S.
      §§ 9543(a)(3) and 9544(a)(2). Salient to a reconsideration of
      sentence filing, the merits of the same [were] decided by this
      court, albeit stemming from [Appellant’s] pro se pleadings.
      Despite his trial lawyer’s failure to seek a reconsideration of
      sentence, [Appellant] was in fact afforded by this court

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       sentencing reconsideration review. Accordingly, [Appellant] on
       such a record has not established the necessary prejudice to a
       finding that except for this challenged omission[,] the
       proceeding’s   outcome      would    have    been    different.
       Commonwealth v. March, [598 A.2d 961, 962 (Pa. 1991)] and
       Commonwealth v. Buehl, [508 A.2d 1166, 1174 (Pa. 1986)].

PCRA Court Order, 2/18/15, at 1 n.2 (some internal citations omitted). 6

       In summary, we conclude that Appellant’s issues are either waived,

previously litigated, or 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 brief, we agree that the PCRA petition is meritless and permit counsel to

withdraw.

       Motion to withdraw granted. Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/25/2016




____________________________________________


6
   The PCRA court noted that it “wholly incorporated as if fully set forth
herein” “its order from which the instant appeal was taken.” PCRA Court
Opinion, 6/1/15, at 12, 11.



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