J-S54021-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                            Appellee

                       v.

RICHARD STEVEN NEWMAN

                            Appellant                No. 519 MDA 2014


                  Appeal from the PCRA Order March 12, 2014
               In the Court of Common Pleas of Lancaster County
              Criminal Division at No(s): CP-36-CR-0001895-2008
                                          CP-36-CR-0001896-2008


BEFORE: LAZARUS, J., MUNDY, J., and STABILE, J.

MEMORANDUM BY MUNDY, J.:                       FILED SEPTEMBER 17, 2014

       Appellant, Richard Steven Newman, appeals from the March 12, 2014

order dismissing his petition for relief filed pursuant to the Post Conviction

Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. Contemporaneously with this

appeal, counsel has requested leave to withdraw in accordance with

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

Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc), and their progeny. After

careful review, we grant counsel leave to withdraw and affirm the order of

the PCRA court.1


____________________________________________


1
  The Commonwealth has indicated it will not be filing an appellate brief in
this matter.
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        On February 26, 2010, Appellant pled guilty but mentally ill to

stalking2 at CP-36-CR-0001895-2008, and one count each of burglary and

criminal attempt       homicide,3 at CP-36-CR-0001896-2008. The PCRA court

summarized the remaining facts and procedural history of this case as

follows.

                      Following a hearing on the record, the [trial
              c]ourt made a finding that [Appellant] was mentally
              ill pursuant to the Crimes Code definition and that he
              did not meet the definition of legal insanity. After
              conducting a colloquy with [Appellant], the [trial
              c]ourt accepted the guilty pleas. [Appellant] waived
              his right to a presentence investigation and
              immediately stood for sentencing. [On February 26,
              2010, Appellant] received consecutive sentences on
              each count, resulting in an aggregate sentence of not

              imprisonment].

                    [Appellant] did not file a post-sentence motion
              or Notice of Appeal to the Superior Court of
              Pennsylvania. [Appellant] timely filed his [pro se]
              PCRA petition on January 18, 2011 and present
              counsel[, Vincent J. Quinn, Esquire (Attorney
              Quinn)], was appointed [on January 26, 2011]. [On
              November 2, 2012, Attorney Quinn] filed an
              Amended PCRA [petition] alleging that trial counsel[,
              Richard E. Meanix, Esquire (Attorney Meanix),] was
              ineffective for advising [Appellant] to waive his right
              to a presentence investigation and for failing to
              present Sandra McCloskey as a witness at
              sentencing. The waiver issue was denied without a
              hearing and the [PCRA c]ourt submitted a notice
____________________________________________


2
    18 Pa.C.S.A. § 2709.1.
3
    18 Pa.C.S.A. §§ 3502 and 901.




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          pursuant to Pa.Crim.P 907 of its intent to dismiss
          without a hearing. A PCRA hearing was scheduled to
          develop the second issue.        [Attorney Quinn]
          attempted to file a Second Amended PCRA [petition]
          alleging that [Attorney Meanix] was ineffective for

          sentencing; the [PCRA c]ourt denied that request
          because the sentencing transcript indicated that

          sentencing.

                An evidentiary hearing was held on January
          22, 2014. At the hearing, the defense presented
          three witnesses, [Attorney] Meanix, [Appellant], and
          Sandra McCloskey. Attorney Meanix testified that he
          met with [Appellant] prior to sentencing and they
          discussed calling Ms. McCloskey as a witness; both
          desired that she testify at sentencing.     Attorney
          Meanix attempted to contact Ms. McCloskey through

          contact within the family for character witnesses.
          Attorney Meanix testified that he only spoke to Ms.
          McCloskey on the day after sentencing.          She
          informed him that she knew sentencing had been the
          prior day, but as there was the possibility of bad
          weather, she had assumed it would be rescheduled
          and did not attend. Attorney Meanix also testified
          that after [Ap

          Michael, stood up and said that if they testified, their
          testimony would be the same.

                 [Appellant] testified that he had no contact
          with Ms. McCloskey and that he did not discuss
          contacting her with his son Jamie.          Sandra
          McCloskey testified that she knew [Appellant] as a
          volunteer through her organization. Ms. McCloskey
          testified that [Appellant] was always dependable,
          consistent, pleasant, and overall a steady, good
          v
          arrest, she knew him for about three years and
          would have testified on his behalf and as to his
          character at sentencing, but she was never asked.
          Upon questioning by the [PCRA c]ourt, Ms.

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             McCloskey testified that she submitted a character
             letter on behalf of [Appellant] for his sentencing for
             stalking in Chester County in 2007. Th[e PCRA
             c]ourt noted that it was aware of this character letter

             particular case.

PCRA Court Opinion, 3/12/14, at 1-3.

        Following the evidentiary hearing, the PCRA court entered an order




2014.     On March 21, 2014, the PCRA court ordered Appellant to file a

concise statement of errors complained of on appeal, in accordance with

Pennsylvania    Rule   of   Appellate   Procedure   1925(b),   within   21   days.

Appellant filed a timely Rule 1925(b) statement on April 1, 2014. In lieu of a

formal Rule 1925(a) opinion, the PCRA court filed a one-paragraph

memorandum that same day, indicating that it was relying on the reasoning

set forth in its prior March 12, 2014 opinion. See PCRA Court Memorandum,

4/1/14, at 1. Thereafter, on June 17, 2014, Attorney Quinn requested leave

to withdraw in accordance with Turner/Finley and their progeny. Appellant



        On appeal, Attorney Quinn raises the following is

behalf.

             [1.]   [Whether Appellant] was denied the effective
                    assistance of counsel in that Attorney Meanix
                    failed to call Sandra McCloskey as a witness at




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J-S54021-14


Turner/Finley Brief at 3.




                                                           Commonwealth v.

Koehler                                                                  ] scope of

review is limited to the findings of the PCRA court and the evidence of

record, viewed in the light most favorable to the prevailing party at the

                      Id. In order to be eligible for PCRA relief, a petitioner

must plead and prove by a preponderance of the evidence that his conviction

or sentence arose from one or more of the errors listed at 42 Pa.C.S.A.

§ 9543(a)(2). These issues must be neither previously litigated nor waived.

42 Pa.C.S.A. § 9543(a)(3).                                ibility determinations,

                                                               Commonwealth

v. Spotz

Court applies a de novo

                Id.



                                                           Commonwealth v.

Pitts, 981 A.2d 875 (Pa. 2009), our Supreme Court reiterated the level of

review necessary to secure permission to withdraw from representation

pursuant   to   Turner/Finley.      The   Pitts   Court   stated   the    following

requirements.


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J-S54021-14


            1)         -                                  detailing
                  the nature and extent of his review;

            2)           -
                  each issue the petitioner wished to have
                  reviewed;

            3)                                                    -

                  were meritless[.]

Id. at 876 (citation omitted).

                                                                        -

                                            petition to withdraw; and (3) a

statement advising petitioner of the right to proceed pro se or by new

            Commonwealth v. Wrecks, 931 A.2d 717, 721 (Pa. Super.

2007) (citation omitted).

            [W]here counsel submits a petition and no-merit
            letter that do satisfy the technical demands of
            Turner/Finley, the court - trial court or this Court -
            must then conduct its own review of the merits of
            the case. If the court agrees with counsel that the
            claims are without merit, the court will permit
            counsel to withdraw and deny relief. By contrast, if
            the claims appear to have merit, the court will deny



Id. (internal citation omitted).

      Herein, we conclude that Attorney Q

complied with the requirements of Turner/Finley.         Specifically, Attorney

          Turner/Finley letter brief detailed the nature and extent of his

review.    In preparing said filing, Attorney Quinn addressed, inter alia,


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J-S54021-14


           s underlying claim that Attorney Meanix was ineffective for failing

to call

hearing, and determined that the issue lacked merit. Thereafter, Attorney

Quinn explained why the PCRA court properl

amended PCRA petition.       Finally, as discussed, Attorney Quinn served

Appellant with a copy of his request to withdraw and advised Appellant that,

if he was permitted to withdraw, Appellant had the right to proceed pro se or

with pri

request for leave to withdraw from representation satisfied the constraints of

Turner/Finley.    We must now conduct our own independent review as to

                                  without merit.



Meanix rendered ineffective assistance of counsel by failing to call Sandra



Turner/Finley Brief at 3.      Appellant avers that McCloskey would have



           Id.

      To prevail on a claim of ineffective assistance of counsel under the

PCRA, a petitioner must plead and prove by a preponderance of the evidence

                                                        -determining process



                                                                      (1) the


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underlying legal issu



                        Koehler, supra at 132, citing Commonwealth v.

Pierce, 527 A.2d 973, 975 (Pa. 1987).         ounsel is presumed effective,

and to rebut that presumption, the PCRA petitioner must demonstrate that



       Koehler, supra at 131 (citation omitted).       Furthermore,

appellant fails to prove by a preponderance of the evidence any of the



Commonwealth v. Fitzgerald, 979 A.2d 908, 911 (Pa. Super. 2009),

appeal denied, 990 A.2d 727 (Pa. 2010).

     Upon careful review of the record,

                  Turner/Finley letter brief, and the applicable law, and in



                                                               iveness claim

merits no relief. The record establishes that Appellant has failed to satisfy

the first and third prongs of the aforementioned ineffectiveness test.   See

Koehler, supra.

     Specifically, Appellant has failed to establish that his ineffectiveness

                                Id.



Commonwealth v. Stewart, 84 A.3d 701, 707 (Pa. Super. 2013) (en


                                      -8-
J-S54021-14


banc) (citation and quotation marks omitted), appeal denied, 93 A.3d 463

(Pa. 2014).   Herein, Attorney Meanix testified at the January 22, 2014

evidentiary hearing, that he and Appellant discussed calling McCloskey as a

                                                                          on,

                                                                -7.   Attorney




part, [his] own belief that character witnesses deal better with hearing from

                                   Id.    Attorney Meanix further noted that

McCloskey telephoned him the day after the sentencing hearing, and



inquired as to when the hearing would be rescheduled.           Id.   at 7-8.

McCloskey, on the contrary, also testified at the evidentiary hearing and

averred that she never spoke with Attorney Meanix and was never informed

                                         aring. Id. at 29.



elected not to believe McCloskey.        PCRA Court Opinion, 3/12/14, at 4.



as to her facts, not credible as to her responses to the [PCRA c]ourt and

specifically not credible with regard to her testimony that she was never

                                                      Id.    Upon review, we

                                                                        ibility


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J-S54021-14


determinations.     When

                                                                 Commonwealth

v. Spotz, 18 A.3d 244, 259 (Pa. 2011) (citation omitted).                 Accordingly,

                                 ney Meanix was ineffective for not calling

McCloskey as a witness during the sentencing hearing lacks arguable merit.

         Additionally, Appellant has also failed to establish that he suffered

prejudice as a result of                                    Koehler, supra.         o

demonstrate      prejudice,   appellant   must   show    there   is   a    reasonable



                                  Commonwealth v. Michaud, 70 A.3d 862,

867 (Pa. Super. 2013) (citation omitted). Instantly, the record reveals that



prejudicial impact on Appellant, as the PCRA court acknowledged that it was

                                                                                on at

                                                        character letter McCloskey

                                          See PCRA Court Opinion, 3/12/14, at

5.   O

petitioner] has not de

affected the outcome of the proceedings [pursuant to the third prong of the

Pierce test], the claim may be dismissed on that basis alone and the court

need not first determine whether the first and second prongs [of the test]

                    Commonwealth v. Rios, 920 A.2d 790, 799 (Pa. 2007).


                                      - 10 -
J-S54021-14


      Based on the foregoing, we discern no error on the part of the PCRA

                                                            Accordingly, we



petition to withdraw.

      Order affirmed. Petition to withdraw as counsel granted.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/17/2014




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