J-S47011-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

DAVID DIPRIMIO

                            Appellant                No. 945 EDA 2013


                  Appeal from the PCRA Order February 8, 2013
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0005763-2008
                                          CP-51-CR-0005764-2008
                                          CP-51-CR-0005765-2008
                                          CP-51-CR-0005766-2008
                                          CP-51-CR-0005767-2008


BEFORE: MUNDY, J., OLSON, J., and WECHT, J.

MEMORANDUM BY MUNDY, J.:                       FILED SEPTEMBER 26, 2014

       Appellant, David DiPrimio, appeals from the February 8, 2013 order

dismissing his petition filed pursuant to the Post Conviction Relief Act

(PCRA), 42 Pa.C.S.A. §§ 9541-9546, without a hearing.           In addition,



together with a Turner/Finley no-merit letter, averring the appeal is

without merit.1

and affirm the PCRA




____________________________________________
1
  See Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988);
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super 1988) (en banc).
J-S47011-14



       The PCRA court summarized the relevant factual and procedural

history of this case as follows.

                    On April 27, 2008, [Appellant] got into a fight
              with patrons at Mick Daniels Bar in South
              Philadelphia. After closing, while the crowd was
              leaving the bar, [Appellant] opened fire from across
              the street, shooting six times and hitting three
              victims. One of the victims was a man he argued
              with inside the bar, the second victim was a man he
              argued with outside of the bar, and the third victim
              was a man who had been talking to the second
              victim at the time of the shooting. When the crowd
              chased [Appellant], he shot a fourth victim. Another
              man who heard the shots and saw [Appellant]
              running eventually subdued [Appellant] and gained
              control over the firearm.      However, [Appellant]
              flagged down a police officer and blamed the
              shooting on the man who had subdued him. An off-
              duty police officer who had witnessed the shooting
              then arrived on scene and explained that [Appellant]
              was really the shooter[].

                    On March 25, 2009, [Appellant] was found
              guilty after a waiver trial before the Honorable John

              count of attempted murder, simple assault, and
              possessing an instrument of crime.[2] On May 29,
              2009, he was sentenced to an aggregate term of 15
                                         [3]
                                             [Appellant] appealed
              his sentence; the judgment of sentence was affirmed
              on June 17, 2010.      Commonwealth v. David
              DiPrimio, [4 A.3d 691 (Pa. Super. 2010)
              (unpublished memorandum), appeal denied, 14 A.3d
____________________________________________
2
 18 Pa.C.S.A. §§ 2702, 901(a) (to commit 18 Pa.C.S.A. § 2502(a)), 2701,
and 907, respectively.
3
  Appellant was represented by Brian J. McMonagle, Esquire during trial and
sentencing, and was represented by Mitchell Strutin, Esquire during his
direct appeal.


                                           -2-
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            of appeal to the Pennsylvania Supreme Court was
            denied on December 28, 2010.

                   On March 26, 2012, Appellant, represented by
            [private counsel,] Kenneth A. Young, Esquire, filed a
            Petition pursuant to the [PCRA]. [On July 12, 2012,
            the Commonwealth filed a motion to dismiss


                  On December 6, 2012, and January 7, 2013,
            [the PCRA] court sent [Appellant] notice pursuant to

            dismiss his PCRA Petition, explaining that the issues
            raised in his PCRA were without merit. [No response

            February   8,   2013,    [the   PCRA]   court    formally

            2013, [Appellant] filed this Notice of Appeal.

                  On April 11, 2013, [the PCRA] court ordered a
            1925(b) Statement from [Appellant]. Postmarked
            April 26, 2013, [Appellant] sent this court his
            1925(b) Statement, raising numerous claims on
            appeal.

PCRA Court Opinion, 5/21/13, at 1-3.



Young filed a petition to withdraw before the PCRA court, averring he had

not been retained to represent Appellant on appeal and that Appellant could

not afford counsel. On August 14, 2013, Appellant petitioned this Court for

appointment of new counsel. On August 27, 2013, we remanded the matter

to the trial court for resolution.   On September 10, 2013, the PCRA court

ordered that new counsel be appointed to represent Appellant in the instant




                                      -3-
J-S47011-14


appeal.   On October 4, 2013, John Belli, Esquire (Attorney Belli) filed his



      Attorney Belli, subsequently filed a petition to withdraw as counsel,

together with a Turner/Finley letter on October 29, 2013. On May 5, 2014,

Appellant filed a pro se

no-merit letter.

      In his Turner/Finley letter, Attorney Belli identifies the following



1925(b) statement.

            1.     The     PCRA   Court   erred   by   holding   that

                   ineffective for failing to investigate, develop,
                   and present evidence that [A]ppellant was
                   suffering from severe cognitive deficits at the
                   time of the incident did not entitle him to
                   relief;

            2.     The     PCRA   Court   erred   by   holding   that

                   ineffective for failing to argue that he was
                   incompetent to stand trial lacked merit;

            3.     The     PCRA   Court   erred   by   holding   that

                   ineffective for failing to investigate and
                   subpoena witnesses for the defense entitled
                   him to no relief;

            4.     The PCRA Court erred by not granting relief on
                   a claim alleging that trial counsel was
                   ineffective for failing to obtain and present

                   of establishing that he lacked the mental
                   capacity to form specific intent to kill;


                                      -4-
J-S47011-14


            5.    The   PCRA    Court     erred     by     holding     that

                  was ineffective for not reviewing the crime
                  scene photos, which established that the

                  entitled him to no relief;

            6.    The    PCRA     Court    erred         by     dismissing

                  appellate counsel were ineffective for failing to
                  raise the preceding claims in a post[-]sentence
                  motion and on direct appeal respectively; and

            7.    The PCRA court erred by failing to provide
                  [A]ppellant with a [Rule] 907 notice that
                  specifically identified the reasons why the court
                  dismissed his PCRA petition without a hearing.
                  Had [A]ppellant been aware of the reasons for
                  denying him PCRA relief he would have alleged
                  that PCRA counsel was ineffective because he:

                  a.    failed  to   seek     a               retrospective
                        competency evaluation;

                  b.
                        investigation     to   an        alternative     to
                        justification;

                  c.    failed to certify the PCRA record with
                        mental health records; and

                  d.    fail[ed] to submit affidavits of witnesses.

Turner/Finley Letter, at 8-9.

      In his pro se

Turner/Finley letter, Appellant raises the following additional issues.




                                     -5-
J-S47011-14


              [1.]   [W
                     is not in compliance with the procedures for
                     filing an        [sic] Brief[?]4

              [2.]   [Whether] trial counsel was ineffective for
                     failure to object to the inadequate jury waiver
                     colloquy denying [] Appellant [h]is Sixth
                     Amendment right to effective counsel and
                     [whether] PCRA counsel was ineffective for

                     behalf[?]

             Pro Se Response at 1, 2.

        We reiterate the following principles guiding our consideration of an

appeal from the denial of PCRA relief.


              standard     and    scope        of   review   is   limited   to

              support
              Commonwealth v. Edmiston, 65 A.3d 339, 345
              (Pa. 2013) (citation omitted) [, cert. denied,
              Edminston v. Pennsylvania, 1345 S. Ct. 639

              findings of the PCRA court and the evidence of
              record, viewed in the light most favorable to the

              Commonwealth v. Koehler, 614 Pa. 159, 36 A.3d

                                                                            by

              Commonwealth v. Spotz, 610 Pa. 17, 18 A.3d

              Court applies a de novo standard of review to the
                                            Id.

Commonwealth v. Medina, 92 A.3d 1210, 1214-1215 (Pa. Super. 2014)

(en banc). Further, in order to be eligible for PCRA relief, a petitioner must
____________________________________________
4
    Anders v. California, 386 U.S. 738 (1967).


                                           -6-
J-S47011-14


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.

Id. § 9543(a)(3).



without conducting a hearing.

                  [T]he right to an evidentiary hearing on a post-
            conviction petition is not absolute. It is within the


            support either in the record or other evidence. It is
            the responsibility of the reviewing court on appeal to
            examine each issue raised in the PCRA petition in
            light of the record certified before it in order to
            determine if the PCRA court erred in its
            determination that there were no genuine issues of
            material fact in controversy and in denying relief
            without conducting an evidentiary hearing.

Commonwealth v. Wah, 42 A.3d 335, 338 (Pa. Super. 2012), quoting

Commonwealth v. Turetsky, 925 A.2d 876, 882 (Pa. Super. 2007)

(internal citations omitted), appeal denied, 940 A.2d 365 (Pa. 2007); see

also Pennsylvania Rule of Criminal Procedure 907.         We stress that an

evidentiary hearing is not meant to function as a fishing expedition for any

possible   evidence   that   may   support    some    speculative    claim   of

                    Commonwealth v. Roney, 79 A.3d 595, 604-605 (Pa.

2013) (internal quotation marks and citation omitted). We review a PCRA

                                                                        Id. at

604.

                                    -7-
J-S47011-14




                             aw from representation.      As described by our

Supreme Court, the requirements PCRA counsel must adhere to when

requesting to withdraw include the following.

                              -
                  detailing the nature and extent of his review;

                               -
                  listing each issue the petitioner wished to have
                  reviewed;


                     -
                  were meritless[.]

Commonwealth v. Pitts, 981 A.2d 875, 876 (Pa. 2009), quoting Finley,

supra            Counsel must also send to the petitioner: (1) a copy of the

   -

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

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

2007).

                  [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
                                                   at least instruct


Id. (citation omitted).




                                      -8-
J-S47011-14


        As referenced above, Appellant challenges the sufficiency of Attorney

        Turner/Finley no-merit letter.                  Pro Se Response at 1.

However, he does so by arguing that the standards governing withdrawal of

counsel from a direct appeal as required by Anders, supra, and

Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009), apply. Id.

first error is that [Attorney Belli] filed a no-merit letter to this Court instead
                               5
of an                              Id.

confusion stems from his interpretation of Santiago as applying to all

appeals as opposed to only direct appeals. As the instant appeal is from a

final order in a collateral challenge to his judgment of sentence through the

PCRA, the afore-described Turner/Finley standards apply.             See Pitts,

supra.

        Instantly, we conclude that Attorney Belli has complied with the

requirements of Turner/Finley. Specifically, Attorney Belli       Turner/Finley

letter details the nature and extent of his review, addresses the claims

Appellant raised in his amended PCRA petition and Rule 1925(b) Statement,

and determines that the issues lack merit.           Attorney Belli provides a
____________________________________________
5
  One distinction between an Anders brief and a Turner/Finley no merit
letter is that on direct appeal counsel must discuss all issues arguably
supporting an appeal, while in collateral proceedings counsel must discuss all
issues a petitioner wishes to raise. Wrecks, supra, 720-721. Hence,
applying Anders criteria, Appellant avers Attorney Belli was ineffective for
not spotting an issue, i.e.
Appellant now claims has arguable merit even though it was not included in
his Rule 1925(b) statement as an issue he wished to raise. As such, this
issue is waived for our consideration on appeal.


                                           -9-
J-S47011-14




Additionally, Attorney Belli served Appellant with a copy of the petition to

withdraw and Turner/Finley brief, advising Appellant that, if Attorney Belli

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

privately   retained   counsel.     We   proceed,       therefore,   to   conduct   an

                                                    .

                                                                     pro se response

alleg

When reviewing a claim of ineffective assistance of counsel, we apply the

following test, first articulated by our Supreme Court in Commonwealth v.

Pierce, 527 A.2d 973 (Pa. 1987).

                   When considering such a claim, courts
             presume that counsel was effective, and place upon
             the appellant the burden of proving otherwise.
             Counsel cannot be found ineffective for failure to
             assert a baseless claim.

                   To succeed on a claim that counsel was
             ineffective, Appellant must demonstrate that: (1) the
             claim is of arguable merit; (2) counsel had no
             reasonable strategic basis for his or her action or

             him.



                  [T]o demonstrate prejudice, appellant must
             show there is a reasonable probability that, but for

             have been different.




                                     - 10 -
J-S47011-14


Commonwealth v. Michaud, 70 A.3d 862, 867 (Pa. Super. 2013) (internal

quotation marks and citations omitted).                     tablish any prong of

                                                           Commonwealth v.

Birdsong, 24 A.3d 319, 330 (Pa. 2011).



the Turner/Finley letter, which pertain to his allegations of trial counsel

ineffectiveness for failing to investigate, raise or develop certain issues
                                                                   6
                                                                       Appellant



known to the

was ineffective assistance of trial counsel not to raise the issue.       PCRA

Petition, 3/26/12, at 10, ¶ 30.


              statutory:

                            [W]henever a person who has been
                     charged with a crime is found to be
                     substantially unable to understand the nature
                     or object of the proceedings against him or to
                     participate and assist in his defense, he shall
                     be deemed incompetent to be tried, convicted
                     or sentenced so long as such incapacity
                     continues.

              50 P.S. § 7402(a). In order to establish
              incompetence, an appellant has the burden of
____________________________________________
6

second and fourth questions.            We therefore address them coordinately.

ineffectiveness into an allegation of ineffectiveness of direct appeal counsel.


                                          - 11 -
J-S47011-14


              proving that he was either unable to understand the
              nature of the proceedings against him or to
              participate in his own defense.

In re R.D., 44 A.3d 657, 665 (Pa. Super. 2012) (citation omitted), appeal

denied, 56 A.3d 398 (Pa. 2012).

       Instantly, Appellant, in his PCRA petition made no averments that he

was incompetent, that he was unable to understand the proceedings, or that

he could not assist in his defense. He merely alleges that circumstances at

trial suggested there was a question of his competency, but those

circumstances are not identified.7             Appellant also, did not identify any

experts prepared to testify on the issue. Further the PCRA court noted that

the record, including colloquies with Appellant belied his incompetency claim.

Trial Court Opinion, 5/21/13, at 6. Accordingly, we conclude the PCRA court

did not err in determining there were no material issues of fact relative to

the effective assistance of trial and appellate counsel concerning their failure



proffered no basis to conclude a material issue of fact exists, relative to the

merits of the underlying issue. See Wah, supra.8


____________________________________________
7

                                               PCRA Petition, 3/26/12, at 10, ¶ 30.


8
  To the extent Appellant alleges trial court error in failing to act sua sponte
in holding a competency hearing as a basis for PCRA relief, the claim fails as
waived for failure to raise the issue on direct appeal. See Commonwealth
(Footnote Continued Next Page)

                                          - 12 -
J-S47011-14


      In his first and fourth issues on appeal, Appellant makes a similar

claim of ineffectiveness of trial counsel for failing to investigate, develop, or

                                                                                possible

diminished capacity defense.            Turner/Finley Letter at 13, 20.          In this




at 5, ¶ 16.      Appellant f

medication, testimony from various friends and family, jail records will



                                  Id.                                      obtained the

background data, he would have been able to present testimony that



                  Id.

would have provided diminished capacity and unreasonable belief at the

                              Id. at 8, ¶ 26.9

                       _______________________
(Footnote Continued)
v. Smith, 17 A.3d 873, 903 (Pa.                     2011),   cert.   denied,   Smith   v.
Pennsylvania, 133 S. Ct. 240 (2012).
9
 The PCRA court determined that this issue lacked merit because diminished
capacity defense is only available to defend a charge of first-degree murder.

available only as a defense to first-degree murder []. Likewise, it is not
                                                      -
Commonwealth v. Russell, 938 A.2d 1082, 1092 (Pa. Super. 2007)
(citations omitted). However, we have explained that the specific intent
element for attempted murder is identical to first-degree murder.
Commonwealth. v. Spells, 612 A.2d 458, 461 n.5 (Pa. Super. 1992); In
(Footnote Continued Next Page)

                                           - 13 -
J-S47011-14




preceding issue.

             Diminished capacity is an extremely limited defense,
             which requires extensive psychiatric testimony
             establishing a defendant suffered from one or more
             mental disorders which prevented him from
             formulating the specific intent to kill. Only where a
             defendant admits liability and contests the degree of
             guilt is a diminished capacity defense available.

Commonwealth v. Cuevas, 832 A.2d 388, 393 (Pa. 2003) (citations



actions or acted impulsively is irrelevant to specific intent to kill, and thus is

not admissible to                                              Commonwealth

v. Sepulveda, 55 A.3d 1108, 1122

PCRA petition did not identify with any specificity a mental illness or disorder

that affected his ability to form the specific intent to kill.       His generic




material issue of fact in the absence of any proffer of expert psychiatric

testimony on the subject. See id.

                       _______________________
(Footnote Continued)
re R.D., supra at 678. Thus, diminished capacity is a defense available to a
charge of attempted murder. See Commonwealth v. Rovinski, 704 A.2d
1068, 1071-1072 (Pa. Super. 1997) (involving an appeal after this Court

defense claim to a charge of attempted murder), appeal denied, 723 A.2d
1024 (Pa. 19
                                        Commonwealth v. Rykard, 55
A.3d 1177, 1183 (Pa. Super. 2012), appeal denied, 64 A.3d 631 (Pa. 2013).


                                           - 14 -
J-S47011-14


       Appellant has included in the certified record various medical records

pertaining to his traumatic head injury and recovery from 2005.             These



abil

condition at the time he shot the four victims three years later. 10 In light of



assistance of counsel relative to developing a defense of diminished

capacity, we conclude the PCRA court did not err or abuse its discretion in

                                                         See Commonwealth v.

McLaurin, 45 A.3d 1131, 1137 (Pa. Super. 2012), appeal denied, 65 A.3d

413 (Pa. 2013).



assistance of trial counsel for failing to investigate and present witnesses for

his defense.      Turner/Finley Letter at 18.       We have described a PCRA

                       in presenting this type of claim as follows.


              to testify does not constitute ineffectiveness per se.
              Commonwealth v. Cox, 603 Pa. 223, 267, 983
              A.2d
              establishing whether defense counsel was ineffective
              for failing to call witnesses, a defendant must prove
              the witnesses existed, the witnesses were ready and


____________________________________________
10
                                                       nd accounts of its effect on

father. N.T., 3/24/09, at 19-20.


                                          - 15 -
J-S47011-14


            testimony prejudiced petitioner and denied him a fair
                  Id. at 268, 983 A.2d at 693.

Commonwealth v. Johnson, 27 A.3d 244, 247 (Pa. Super. 2011).

Further, a petitioner must provide proof of the availability of the witness, his

or her willingness to testify and the substance of the proposed testimony by

including an appropriate affidavit or other proof with the PCRA petition.

McLaurin, supra.

                                                          Commonwealth v.

Dennis, 950 A.2d 945, 960 (Pa. 2008). Nevertheless, a similar threshold



testimony[,] Appellant cannot demonstrate prejudice sufficient to establish

ineffectiveness of tr             Id. at 965.



witness to the assault of the Complainants against [Appellant] who was not



the []

                                                PCRA petition, 3/26/12, at 12,

¶¶

availability or willingness to tes

supposed testimony is averred or supported in an affidavit.       Absent these




                                     - 16 -
J-S47011-14


pleading requirements, we discern no error or abuse of discretion in the

                 dismissal of this claim without a hearing.11

       In his fifth issue, Appellant alleges trial counsel was ineffective for not

reviewing    crime     scene    photos     that    Appellant   contends   could   have

contradicted trial testimony of Commonwealth witnesses.                Turner/Finley

Letter at 20.       Appellant did not include this issue in his PCRA petition,

raising it for the first time in his Rule 1925(b) statement.                   -settled



Commonwealth v. Ousley, 21 A.3d 1238, 1242 (Pa. Super. 2011)

(internal quotation marks and citation omitted), appeal denied, 30 A.3d 487

(Pa. 2011). Accordingly, we conclude Appellant has waived this issue, and is

due no relief.



In his seventh issue,



that his issues lacked merit. Turner/Finley Letter at 22. Appellant argues,

                                                               s basis, he could have

timely alleged ineffectiveness of PCRA counsel in failing to rectify the afore-

                                                               e.g., failing to provide




____________________________________________
11
 Appellant only identified potential witnesses, albeit without any supporting
material, for the first time in his Rule 1925(b) statement.


                                          - 17 -
J-S47011-14


mental health records and failing to submit affidavits of witnesses. 12   Id.

Additionally, in his response to



ineffectiveness for, in turn, failing to raise an issue contesting the

                                                                     Pro Se

Response to Turner/Finley Letter at 2-4. None of these issues were raised

before the PCRA court in the first instance.

       In Commonwealth v. Henkel, 90 A.2d 16 (Pa. Super. 2014) (en

banc), this Court conducted an exhaustive review of Pennsylvania law

regarding review of PCRA counsel ineffectiveness claims for the first time on

appeal.      The Henkel Court concluded that issues of PCRA counsel



notice or in a serial PCRA petition. Id. at 29. We recognize that Appellant

was still represented by PCRA counsel at the time the Rule 907 notice was

issued and that the PCRA time bar may be an obstacle to future PCRA

petitions.   However, these factors do not alter the aforesaid requirement.



for the first time on appeal renders any effective enforcement of the rule-

                                                                          Id.

____________________________________________
12
   At the time the PCRA court sent its two Rule 907 notices of its intent to
dismiss, Appellant was represented by counsel.           Additionally, the
Commonwealth had filed a motion to dismiss reciting the above discussed
deficiencies in Ap


                                          - 18 -
J-S47011-14




counsel ineffectiveness are reviewable in this appeal.



without merit, waived, or premature.         Additionally, finding Attorney Belli

compliant with the Turner/Finley requirements, we grant his motion to

withdraw as counsel. Finally, discerning no error or abuse of discretion by



PCRA petition without a hearing.

      Order affirmed. Motion to withdraw granted.

      Judge Olson joins the majority.

      Judge Wecht concurs in the result.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/26/2014




                                    - 19 -
