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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


COMMONWEALTH OF PENNSYLVANIA,               :     IN THE SUPERIOR COURT OF
                                            :          PENNSYLVANIA
                          Appellee          :
                                            :
                    v.                      :
                                            :
                                            :
GEORGE EDWARD CLARITT,                      :
                                            :
                          Appellant         :     No. 875 WDA 2014


                   Appeal from the PCRA Order May 12, 2014
                In the Court of Common Pleas of Warren County
               Criminal Division No(s).: CP-62-CR-0000390-2011

BEFORE: DONOHUE, MUNDY, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                         FILED MARCH 16, 2015

        Appellant, George Edward Claritt, appeals from the order entered in

the Warren County Court of Common Pleas denying, after an evidentiary

hearing, his first Post Conviction Relief Act1 (“PCRA”) petition.       This case

returns to us after we remanded to have Robert Kinnear, Esq., comply with

all the requirements of Turner/Finley2 or file an advocate’s brief.

Appellant’s counsel has filed a petition to withdraw.          We grant counsel’s

petition and affirm the order below.

*
    Former Justice specially assigned to the Superior Court.
1
    42 Pa.C.S. §§ 9541-9546.
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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        We adopt the facts and procedural history set forth in the PCRA court’s

decision. See PCRA Ct. Op., 5/13/14, at 1-3. After an evidentiary hearing

at which Appellant and his trial counsel testified, the PCRA court denied

Appellant’s petition on May 13, 2014. Appellant timely appealed.

        On May 28, 2014, the trial court ordered Appellant to file and serve on

the court a Pa.R.A.P. 1925(b) statement within twenty-one days.             The

docket does not reflect compliance with Pa.R.C.P. 236.3 On June 16, 2014,

Appellant filed a Rule 1925(b) statement but failed to serve a copy on the

court. The PCRA court issued a Rule 1925(a) decision objecting to counsel’s

failure to serve the Rule 1925(b) statement.

        Instantly, we ascertain whether Appellant complied with Pa.R.A.P.

1925(b)(1), which states in relevant part: “(1) Filing and service.—

Appellant shall file of record the Statement and concurrently shall serve the

judge. Filing of record and service on the judge shall be in person or by mail

. . . .”    Pa.R.A.P. 1925(b)(1) (emphasis added).     We must also examine

whether the PCRA court strictly complied with Pa.R.C.P. 236 when it ordered

a Rule 1925(b) statement.        See In re L.M., 923 A.2d 505, 509-10 (Pa.

Super. 2007) (holding, “strict application of the bright-line rule [of Rule 1925

waiver] necessitates strict interpretation of the rules regarding notice of




3
    We discuss this in further detail below.




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Rule 1925(b) orders.” (citation omitted)); see also Pa.R.Crim.P. 114(B)-

(C); Pa.R.A.P. 1925(b)(2).

      Rule 236 states in pertinent part:

         Rule 236. Notice by Prothonotary of Entry of Order
         or Judgment

            (a) The prothonotary shall immediately give written
         notice of the entry of

                                 *    *    *

               (2) any other order or judgment to each party’s
            attorney of record or, if unrepresented, to each party.
            The notice shall include a copy of the order or
            judgment.

            (b) The prothonotary shall note in the docket the giving
         of the notice and, when a judgment by confession is
         entered, the mailing of the required notice and documents.

Pa.R.C.P. 236(a)(2), (b).    Rule 236 mandates that the prothonotary give

“written notice of the entry of a court order to each party and to note on the

docket that notice was given.” Id. at 510 (emphasis added).

            If the docket does not show that notice of the entry of
         a Rule 1925(b) order was provided to an appellant, then
         we will not conclude that the appellant’s issues have been
         waived for failure to file a Rule 1925(b) statement. That a
         party may have actually received notice is not
         determinative under circumstances where the docket does
         not reflect that notice was sent.

In re L.M., 923 A.2d at 510 (emphases added and citations omitted).

      In this case, Appellant’s counsel inexplicably failed to serve the PCRA

judge a copy of the Rule 1925(b) statement. See Pa.R.A.P. 1925(b). We

decline to find waiver, however, as the docket failed to reflect notice of the


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entry of the order on Appellant. See In re L.M., 923 A.2d at 510. Because

counsel’s failure to comply with well-settled law does not result in waiver of

Appellant’s issues on appeal, we return to the procedural history.

         Previously, Appellant’s counsel filed a Turner/Finley brief with this

Court without, inter alia, filing a petition to withdraw and complying with all

the requirements of Turner/Finley.            Appellant filed a pro se petition

requesting, inter alia, a Grazier4 hearing. This panel struck counsel’s brief,

forwarded to counsel Appellant’s pro se petition per Commonwealth v.

Jette, 23 A.3d 1032, 1044 (Pa. 2011) (holding, “once the brief has been

filed, any right to insist upon self-representation has expired”), and ordered

counsel to, inter alia, comply with Turner/Finley.

         Appellant’s counsel filed another petition to withdraw with this Court.

Because counsel’s Turner/Finley petition was deficient, we denied his

petition and remanded to have counsel file a proper petition or an advocate’s

brief within thirty days.     Appellant has again filed another Turner/Finley

brief.

         Appellant’s counsel raises the following issue:

            Is [Appellant’s] claim of ineffective assistance of counsel
            without merit?

Appellant’s Turner/Finley Brief at 4.




4
    Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).




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     Prior to addressing the issues raised in the Turner/Finley brief, we

examine the following in evaluating counsel’s petition to withdraw:

        [I]ndependent review of the record by competent counsel
        is required before withdrawal is permitted.       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.

Commonwealth v. Widgins, 29 A.3d 816, 817-18 (Pa. Super. 2011)

(alterations and citations omitted). Further, the Widgins Court explained:

        The Supreme Court [in Commonwealth v. Pitts, 981
        A.2d 875 (Pa. 2009),] did not expressly overrule the
        additional requirement imposed by [Commonwealth v.
        Friend, 896 A.2d 607 (Pa. Super. 2006),] decision, i.e.,
        that PCRA counsel seeking to withdraw contemporaneously
        forward to the petitioner a copy of the application to
        withdraw that includes (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.




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Id. at 818. Instantly, we have reviewed counsel’s petition to withdraw and

conclude it complies with the requirements set forth by the Widgins Court.

See id. Accordingly, we proceed.

      Appellant contends that on direct appeal, a claim should have been

raised that trial counsel was ineffective during the jury selection process. He

asserts that counsel refused to cooperate with him during voir dire. We hold

Appellant is not entitled to relief.

      “On appeal from the denial of PCRA relief, our standard and scope of

review is limited to determining whether the PCRA court’s findings are

supported by the record and without legal error.” Commonwealth v. Abu-

Jamal, 941 A.2d 1263, 1267 (Pa. 2008).          Furthermore, where there is

support for a PCRA court’s credibility determinations, the reviewing court is

bound by those determinations. Commonwealth v. Abu-Jamal, 720 A.2d

79, 93-94 (Pa. 1998).

      With respect to claims of counsel’s ineffectiveness, we state the

following as background:

         [C]ounsel is presumed to have provided effective
         representation unless the PCRA petitioner pleads and
         proves that: (1) the underlying claim is of arguable merit;
         (2) counsel had no reasonable basis for his or her conduct;
         and (3) Appellant was prejudiced by counsel’s action or
         omission. To demonstrate prejudice, an appellant must
         prove that a reasonable probability of acquittal existed but
         for the action or omission of trial counsel. A claim of
         ineffective assistance of counsel will fail if the petitioner
         does not meet any of the three prongs. Further, a PCRA
         petitioner must exhibit a concerted effort to develop his



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        ineffectiveness claim and may not rely on boilerplate
        allegations of ineffectiveness.

Commonwealth v. Perry,          959   A.2d   932,   936   (Pa.   Super.   2008)

(punctuation marks and citations omitted).

     In determining whether counsel’s action was reasonable, the court

does not consider “whether there were other more logical courses of action”

counsel could have pursued, but simply examines whether counsel’s decision

had any reasonable basis. Commonwealth v. Washington, 927 A.2d 586,

594 (Pa. 2007). Conversely, to merit relief, counsel’s action, given all the

other available alternatives, must be “so unreasonable that no competent

lawyer would have chosen it.”    Commonwealth v. Miller, 431 A.2d 233,

234 (Pa. 1981) (citation omitted).

     A failure to satisfy any prong of the test for ineffectiveness requires

rejection of the claim. Washington, 927 A.2d at 594. “In the context of a

PCRA proceeding, [the defendant] must establish that the ineffective

assistance of counsel was of the type ‘which, in the circumstances of the

particular case, so undermined the truth-determining process that no

reliable adjudication of guilt or innocence could have taken place.’”       Id.

(citations omitted).   The defendant must establish actual prejudice, or

demonstrate that the alleged act of ineffectiveness falls within a narrow

range of circumstances in which there is a presumption of prejudice.

Commonwealth v. Reed, 971 A.2d 1216, 1224-25 (Pa. 2009).




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     After careful consideration of the record, the parties’ briefs, and the

decision of the Honorable Maureen A. Skerda, we affirm on the basis of the

PCRA court’s opinion. See App. A to PCRA Ct. Op., 5/13/14, at 7-8 (holding

trial counsel’s testimony was more credible than Appellant’s testimony; trial

counsel testified he informed Appellant of his rights and that Appellant did

not communicate with counsel or attempt to participate in jury selection

process).   We have also conducted our own independent review of the

record and discern no meritorious issues.   See Widgins, 29 A.3d at 818.

Consequently, having discerned no legal error, we grant counsel’s petition to

withdraw and affirm the order below. See Abu-Jamal, 941 A.2d at 1267;

Perry, 959 A.2d at 936.

     Petition to withdraw granted. Order affirmed.

     Judge Donohue joins the memorandum.

     Judge Mundy concurs in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 3/16/2015




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