J-S66034-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,             :      IN THE SUPERIOR COURT OF
                                          :            PENNSYLVANIA
                  Appellee                :
                                          :
            v.                            :
                                          :
ROBERT EUGENE WEAVER, SR.,                :
                                          :
                  Appellant               :           No. 528 MDA 2014

           Appeal from the PCRA Order entered on May 31, 2013
               in the Court of Common Pleas of York County,
              Criminal Division, No. CP-67-CR-0006160-2002

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

MEMORANDUM BY MUSMANNO, J.:                    FILED NOVEMBER 18, 2014

      Robert Eugene Weaver, Sr. (“Weaver”), appeals from the Order

dismissing his third Petition for relief filed pursuant to the Post Conviction

Relief Act (“PCRA”).     See 42 Pa.C.S.A. §§ 9541-9546.          Additionally,

Weaver’s counsel, Heather A. Reiner, Esquire (“Attorney Reiner”), has filed a

Petition to Withdraw as counsel, and an accompanying “no merit” letter

pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and

Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc). We

affirm and grant Attorney Reiner’s Petition to Withdraw.

      This Court previously set forth the relevant history underlying this

appeal as follows:

            On July 16, 2003, a jury convicted [Weaver] of rape,
      involuntary deviate sexual intercourse [], sexual assault, and
      other related offenses [that Weaver] committed against his
      mentally challenged daughter. On November 17, 2003, the
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      [trial] court sentenced [Weaver] to eight and one-half (8½) to
      seventeen (17) years [in prison]. [Weaver] did not pursue a
      direct appeal.

             On March 26, 2008, [Weaver] filed a pro se PCRA
      [P]etition alleging, inter alia, trial counsel was ineffective for
      failing to call as witnesses Betty Weaver, [Weaver’s] wife, and
      Likeisha Weaver [hereinafter “Likeisha”], [Weaver’s] grand-
      daughter, to testify on [Weaver’s] behalf. The [PCRA] court
      appointed counsel and subsequently held a hearing on the
      matter. At the hearing, [Weaver’s] PCRA counsel withdrew the
      claim with respect to calling Betty Weaver as a witness based on
      trial counsel’s explanation that Mrs. Weaver’s testimony would
      not have been beneficial to the defense, and it might not have
      been truthful.

             Additionally, PCRA counsel conceded [that Weaver] had
      not informed trial counsel at any time about the existence of
      Likeisha [] and her potentially beneficial testimony; therefore,
      trial counsel was not ineffective for failing to call her as a
      witness. Instead, PCRA counsel argued [that Weaver] should be
      entitled to relief because his co-defendant, [Weaver’s] son, was
      granted a new trial after he alleged in a timely filed PCRA
      petition that his separate trial counsel was ineffective for failing
      to call Likeisha [] as a witness, and [Weaver’s] son had
      specifically asked counsel to do so.

           On August 21, 2008, the PCRA court denied relief. On
      October 20, 2009, this Court affirmed, and the [Pennsylvania]
      Supreme Court subsequently denied allowance of appeal on July
      7, 2010. See Commonwealth v. Weaver, 987 A.2d 827 (Pa.
      Super. 2009), appeal denied, 606 Pa. 686, 997 A.2d 1178
      (2010) (unpublished memorandum).

Commonwealth v. Weaver, 37 A.3d 1247 (Pa. Super. 2011) (unpublished

memorandum at 1-2) (emphasis in original).

      In September 2010, Weaver filed a second pro se PCRA Petition,

alleging, inter alia, that his trial counsel was ineffective for failing to timely

file a direct appeal, and his prior PCRA counsel was ineffective to the extent



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that he incorrectly informed the PCRA court that Weaver never asked trial

counsel to call Likeisha as a witness at trial, which, Weaver alleged,

constituted a “newly discovered fact” that met one of the exceptions to the

PCRA’s jurisdictional timeliness requirement. In response to Weaver’s PCRA

Petition, the PCRA court appointed Richard Robinson, Esquire (“Attorney

Robinson”), to represent Weaver.       Following a hearing, the PCRA court

dismissed the Petition as untimely, finding that Weaver had failed to meet

any of the exceptions to the PCRA’s time bar. The PCRA court additionally

permitted Attorney Robinson to withdraw as Weaver’s counsel.

      In October 2011, this Court affirmed the dismissal of Weaver’s second

PCRA Petition. See id. Weaver did not seek allowance of appeal with the

Pennsylvania Supreme Court following this Court’s decision.

      In April 2013, Weaver filed the instant pro se PCRA Petition, his third,

after which the PCRA court appointed Attorney Reiner to represent Weaver.1

In May 2013, the PCRA court dismissed Weaver’s PCRA Petition without a

hearing, after which Weaver filed a timely Notice of Appeal. The PCRA court

ordered Weaver to file a Pa.R.A.P. 1925(b) concise statement of errors

complained of on appeal, and Attorney Reiner timely filed a Concise

Statement.



1
  After reviewing the record, Attorney Reiner sent Weaver a letter stating her
belief that the claims Weaver raised in his PCRA Petition did not entitle him
to relief. Accordingly, Attorney Reiner did not file an amended PCRA petition
on Weaver’s behalf.


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      Before addressing the claims Weaver wishes to present on appeal, we

must determine whether Attorney Reiner complied with the requirements of

Turner/Finley in petitioning to withdraw as counsel.                Pursuant to

Turner/Finley, independent review of the record by competent counsel is

required   before    withdrawal    on    collateral   appeal   is    permitted.

Commonwealth v. Pitts, 981 A.2d 875, 876 n.1 (Pa. 2009). Our Supreme

Court in Pitts explained that such independent review requires proof of

      1) A “no-merit” letter by PCRA counsel detailing the nature and
      extent of his review;

      2) The “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.

Id. (citation and brackets omitted).

      Here, our review of the record discloses that Attorney Reiner has

complied with each of the above requirements. In addition, Attorney Reiner

sent Weaver copies of the no-merit letter and Petition to Withdraw, and

advised him of his rights in lieu of representation in the event that the court

granted her permission to withdraw, in compliance with Commonwealth v.

Widgins, 29 A.3d 816, 818 (Pa. Super. 2011). Since Attorney Reiner has




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complied with the Turner/Finley requirements, we will proceed with our

independent review of the record and the merits of Weaver’s claims.

     As Weaver has not filed a responsive brief, either pro se or with newly

retained counsel,2 we review the following issues raised in Attorney Reiner’s

Turner/Finley Brief, which she distilled from Weaver’s pro se PCRA Petition:

     1. [Whether Weaver is entitled to relief under the PCRA
        because his t]rial counsel failed to call Likeisha [] as a
        witness for [the] defense at trial[?]

     2. [Whether the PCRA court erred in failing to find an
        impermissible conflict of interest in that] Attorney []
        Robinson withdrew from representing [Weaver] because he
        went to work for the law firm of Duane Ramseur[, Esquire
        (hereinafter “Ramseur”)?]

Turner/Finley Brief at 2.

     First, Weaver asserts that the PCRA court erred in dismissing his PCRA

Petition because he established that his trial counsel was ineffective for

failing to call Likeisha as a witness for the defense, even though he

requested that she be called as a witness. Id. at 3. Attorney Reiner opined

that Weaver is not entitled to relief on this claim because it has been

previously litigated. Id. We agree.

     In order to be eligible for PCRA relief, a petitioner must plead and

prove that his or her claim has not been previously litigated.        See 42

Pa.C.S.A. § 9543(a)(3); see also 42 Pa.C.S.A. § 9544(a)(2) (providing that


2
  We observe that Weaver filed with this Court a pro se “Motion for
Appointment of Counsel” on July 22, 2014. However, this Motion is not
responsive to Attorney Reiner’s Petition to Withdraw or Turner/Finley Brief.


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“an issue has been previously litigated if[] … the highest appellate court in

which the petitioner could have had review as a matter of right has ruled on

the merits of the issue”).

      This Court, in its October 28, 2011 Memorandum affirming the

dismissal of Weaver’s second PCRA Petition, thoroughly addressed this claim

and concluded that it was previously litigated in connection with Weaver’s

first PCRA Petition. See Weaver, 37 A.3d 1247 (unpublished memorandum

at 7-10). Accordingly, Weaver is not eligible for PCRA relief in the instant

appeal regarding this claim.     See 42 Pa.C.S.A. § 9543(a)(3); see also

Commonwealth v. Hutchins, 760 A.2d 50, 55 (Pa. Super. 2000) (stating

that a PCRA petitioner cannot obtain PCRA review of previously litigated

claims by presenting those claims again in a PCRA petition and setting forth

new theories in support thereof).

      Moreover, the prior panel in Weaver pointed out that Weaver’s second

PCRA Petition was untimely,3 and held that “[e]ven if it is true that [Weaver]

told [his] trial counsel about Likeisha [] and asked counsel to call her as a

witness at trial, [Weaver] knew [Likeisha] existed at the time of trial[,] and

counsel’s failure to call her cannot constitute a newly discovered fact to

satisfy an exception to the PCRA’s strict timeliness requirements.” Weaver,

37 A.3d 1247 (unpublished memorandum at 10). Additionally, to the extent

that Weaver’s claim asserts ineffectiveness of his trial counsel and/or prior

3
 There is no dispute that Weaver’s instant PCRA Petition, his third, is facially
untimely.


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PCRA counsel, it is well-settled that “[a]llegations of ineffective assistance of

counsel will not overcome the jurisdictional timeliness requirements of the

PCRA.” Commonwealth v. Fowler, 930 A.2d 586, 591 (Pa. Super. 2007)

(citation   omitted);   see   also   Weaver,    37   A.3d   1247   (unpublished

memorandum at 11) (stating that, to the extent that “[Weaver] complains

that trial counsel failed to call [Likeisha] or that PCRA counsel was wrong

when he conceded [that Weaver] had not asked trial counsel to call

[Likeisha], neither claim can satisfy the newly discovered facts exception to

the PCRA’s timeliness requirements, because [Weaver] admittedly knew

about the witness at the time of trial.”) (emphasis omitted)).

      Next, Weaver claims that there was an impermissible conflict of

interest in that Attorney Robinson, who served as Weaver’s PCRA counsel in

connection with his second PCRA Petition, allegedly “resigned from his case

and worked in a law firm with [] Ramseur, who previously worked in the

[York County] District Attorney’s Office.” See Turner/Finley Brief at 3.

      Attorney Reiner opined that this claim lacks merit, stating as follows:

      Factually, this assertion cannot be supported[. Attorney Reiner]
      informed [Weaver] in a letter dated July 18, 2013, that Attorney
      Robinson has worked continuously with the same law firm of
      Miller, Poole and Lord, for over 20 years[,] and that [] Ramseur
      has worked … in the York County District Attorney’s Office for
      over five years.

Id. Our review discloses that Attorney Reiner’s position is supported by the

record, and we likewise discern no merit to this claim.




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     Accordingly, because we conclude that the PCRA court neither abused

its discretion nor committed an error of law by dismissing Weaver’s third

PCRA Petition, we grant Attorney Reiner’s Petition to Withdraw and affirm

the Order on appeal. Additionally, we deny Weaver’s July 22, 2014 pro se

Motion for Appointment of Counsel.

     Petition to Withdraw as counsel granted; Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 11/18/2014




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