J-S05032-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                      IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                            Appellee

                       v.

BENJAMIN TYRELL WESTBROOKS,

                            Appellant                  No. 1242 MDA 2016


                   Appeal from the PCRA Order June 23, 2016
                in the Court of Common Pleas of Luzerne County
               Criminal Division at No.: CP-40-CR-0000181-2011


BEFORE: BENDER, P.J.E., PANELLA, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                               FILED MARCH 15, 2017

        Appellant, Benjamin Tyrell Westbrooks, appeals from the order

denying his second petition filed pursuant to the Post Conviction Relief Act,

42 Pa.C.S.A. §§ 9541-9546, after a hearing.           Counsel has petitioned to

withdraw pursuant to Turner/Finley.1           We affirm the court’s order, and

grant counsel’s petition to withdraw.

        We take the following facts and procedural background from our

review of the certified record. On May 4, 2012, a jury convicted Appellant of

murder of the first degree, 18 Pa.C.S.A. § 2502(a), for his fatal shooting of
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
  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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the victim in an apparent dispute over money.             Appellant waived a pre-

sentence investigation (PSI) and requested immediate sentencing.             (See

N.T. Trial, 5/04/12, at 792-93). The court sentenced him to the statutorily

mandated term of life in prison without the possibility of parole. (See id.).

This Court affirmed Appellant’s judgment of sentence on January 13, 2014,

and the Pennsylvania Supreme Court denied his petition for allowance of

appeal on July 23, 2014. (See Commonwealth v. Westbrooks, 96 A.3d

1080 (Pa. Super. 2014), appeal denied, 95 A.3d 277 (Pa. 2014)).

        On September 19, 2014, Appellant filed a timely pro se PCRA petition.

The court appointed counsel on October 24, 2014. After granting Appellant

several continuances, a hearing was ultimately held on April 30, 2015, at

which time Appellant withdrew his PCRA petition.            On August 11, 2015,

Appellant filed a second timely pro se PCRA petition.           He filed a pro se

amended petition on October 15, 2015 without court permission. On April 7,

2016, appointed counsel filed a supplement to the PCRA petition. The PCRA

court held a hearing on April 22, 2016, and denied the petition on June 23,

2016.     Appellant timely appealed.2          Appointed appellate counsel filed a




____________________________________________


2
  Appellant filed a timely statement of errors complained of on appeal on
August 16, 2016. The court filed an opinion on September 15, 2016. See
Pa.R.A.P. 1925.




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Turner/Finley brief3 and petition to withdraw on November 7, 2016.

Appellant responded on January 9, 2017.4

       The Turner/Finley brief raises five questions for this Court’s review:

       I.    Whether trial counsel was ineffective for failing to raise the
       issue that there exists no sentencing statute that fits the crime
       for which Appellant was convicted[?]

       II.    Whether trial counsel was ineffective in failing to raise and
       preserve the objection or limit the evidence of Daniel Smith
       testifying that Appellant had previously stabbed Mr. Smith with a
       screwdriver[?]

       III. Whether trial counsel was ineffective for failing to request
       a mistrial as related to a violation of the trial court’s
       sequestration [o]rder[?]

       IV.   Whether trial counsel was ineffective in failing to object to
       testimony of Commonwealth’s witnesses relating to the
       Appellant’s probationary status[?]

       V.     Whether trial counsel was ineffective in failing to
       effectively cross-examine the Commonwealth’s witnesses on
       potential bias[?]
____________________________________________


3
  Counsel mistakenly filed a “Turner/Finley Brief” comparable to a brief
pursuant to Anders v. California, 386 U.S. 738 (1967). However, a
Turner/Finley no-merit letter is the correct filing. See Turner, supra at
928-29; Finley, supra at 215. Because an Anders brief provides greater
protection to a defendant, this Court may accept an Anders brief instead of
a Turner/Finley letter. See Commonwealth v. Widgins, 29 A.3d 816,
817 n.2 (Pa. Super. 2011).
4
   On December 6, 2016, Appellant filed a request for an extension of time to
file a response to the Turner/Finley brief. This Court granted that motion
on December 8, 2016. On December 27, 2016, Appellant filed a second
request for an extension of time. Because he filed the pro se response brief
on January 9, 2017, we deny Appellant’s December 27, 2016 request as
moot.




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(Turner/Finley Brief, at 1).5

       Prior to addressing Appellant’s claims on appeal, we must address

counsel’s Turner/Finley brief and accompanying petition to withdraw as

counsel.     Pursuant to Turner/Finley, an “[i]ndependent 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).

       As described by our Supreme Court, the requirements PCRA counsel

must adhere to when requesting to withdraw include the following:

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

       2) The “no-merit” letter by PC[R]A counsel listing each issue the
       petitioner wished to have reviewed;

       3) The PC[R]A counsel’s “explanation”, in the “no-merit” letter,
       of why the petitioner’s issues were meritless[.]

Id. (citation omitted). “Counsel must also send to the petitioner: (1) a copy

of the “no-merit” letter/brief; (2) a copy of counsel’s petition to withdraw;

and (3) 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) (citation omitted).
____________________________________________


5
  In his pro se response to the Turner/Finley brief, Appellant again raises
issues one, two, and four.       (See Appellant’s Pro Se Response to
Turner/Finley Brief, 1/09/17, at x). He does not raise any other claims.
(See id.).



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      . . . [W]here counsel submits a petition and no-merit letter that
      do satisfy the technical demands of Turner/Finley, . . . this
      Court[] must then conduct its own review of the merits of the
      case. If the [C]ourt agrees with counsel that the claims are
      without merit, the [C]ourt will permit counsel to withdraw and
      deny relief. By contrast, if the claims appear to have merit, the
      [C]ourt will deny counsel’s request and grant relief, or at least
      instruct counsel to file an advocate’s brief.

Id. (citation omitted).

      Instantly,   we     conclude   that   counsel   has   complied   with   the

requirements of Turner/Finley. Specifically, his Turner/Finley brief details

the nature and extent of his review, addresses the claims Appellant raised in

his PCRA petition and Rule 1925(b) Statement, and determines that the

issues lack merit.      (See Turner/Finley Brief, at 1-8).       He provides a

discussion of Appellant’s claims, explaining why they are without merit.

(See id. at 5-8). Additionally, counsel served Appellant with a copy of the

petition to withdraw and Turner/Finley brief, advising Appellant that, if

counsel was permitted to withdraw, Appellant had the right to proceed pro

se or with privately retained counsel. (See Petition to Withdraw, 11/07/16).

We proceed, therefore, to conduct an independent merits review of

Appellant’s claims.

      Our standard of review of the denial of PCRA relief is well-settled:

             This Court analyzes PCRA appeals in the light most
      favorable to the prevailing party at the PCRA level. Our review
      is limited to the findings of the PCRA court and the evidence of
      record and we do not disturb a PCRA court’s ruling if it is
      supported by evidence of record and is free of legal error.
      Similarly, we grant great deference to the factual findings of the
      PCRA court and will not disturb those findings unless they have

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      no support in the record. However, we afford no such deference
      to its legal conclusions. Where the petitioner raises questions of
      law, our standard of review is de novo and our scope of review is
      plenary. Finally, we may affirm a PCRA court’s decision on any
      grounds if the record supports it.

Commonwealth v. Benner, 147 A.3d 915, 919 (Pa. Super. 2016) (citation

omitted).

      Here, Appellant’s issues all allege the ineffectiveness of trial counsel.

(See Turner/Finley Brief, at 1, 4-8).

             “It is well-established that counsel is presumed effective,
      and to rebut that presumption, the PCRA petitioner must
      demonstrate that counsel’s performance was deficient and that
      such deficiency prejudiced him.” Commonwealth v. Koehler,
      614 Pa. 159, 36 A.3d 121, 132 (2012) (citing Strickland v.
      Washington, 466 U.S. 668, 687–91, 104 S.Ct. 2052, 80
      L.Ed.2d 674 (1984)). To prevail on an ineffectiveness claim, the
      petitioner has the burden to prove that “(1) the underlying
      substantive claim has arguable merit; (2) counsel whose
      effectiveness is being challenged did not have a reasonable basis
      for his or her actions or failure to act; and (3) the petitioner
      suffered prejudice as a result of counsel’s deficient
      performance.” Commonwealth v. Sneed, 616 Pa. 1, 18, 45
      A.3d 1096, 1106 (2012) (quoting Commonwealth v. Pierce,
      567 Pa. 186, 203, 786 A.2d 203, 213 (2001)). The failure to
      satisfy any one of the prongs will cause the entire claim to fail.
      Id.

Benner, supra at 920.

      In Appellant’s first issue, he claims that trial counsel was ineffective

because he failed to raise the claim that “there is no sentencing statute that

controls the crime of [f]irst [d]egree [m]urder, and as such, he should be

released from incarceration.” (Turner/Finley Brief, at 5-6) (record citation

omitted). This issue lacks merit.


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      Section 1102 of the Crimes Code provides, in pertinent part:

      (a)   First degree.—

            (1) Except as provided under section 1102.1 (relating to
      sentence of persons under the age of 18 for murder, murder of
      an unborn child and murder of a law enforcement officer), a
      person who has been convicted of a murder of the first degree or
      of murder of a law enforcement officer of the first degree shall
      be sentenced to death or to a term of life imprisonment in
      accordance with 42 Pa.C.S.[A.] § 9711 (relating to sentencing
      procedure for murder of the first degree).

18 Pa.C.S.A. § 1102(a)(1).

      Pursuant to 42 Pa.C.S.A. § 9711(a)(1), “[a]fter a verdict of murder of

the first degree is recorded and before the jury is discharged, the court shall

conduct a separate sentencing hearing in which the jury shall determine

whether the defendant shall be sentenced to death or life imprisonment.”

42 Pa.C.S.A. § 9711(a)(1).

      In this case, the Turner/Finley brief claims “that the jury should have

deliberated between aggravated and mitigating circumstances in order to

determine whether a penalty of death or life imprisonment should be

imposed.”   (Turner/Finley Brief, at 6).     However, this claim lacks merit

because the case was not designated as a capital murder/death penalty

case. Further, a review of the record reveals that Appellant waived a PSI

and requested to move to the sentencing phase immediately, at which time

the trial court sentenced him to the statutory mandatory term. (See N.T.

Trial, 5/04/12, at 792-93). “Counsel cannot be found ineffective for failing




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to raise a meritless claim.” Commonwealth v. Messmer, 863 A.2d 567,

572 (Pa. Super. 2004) (citation omitted). Therefore, this issue lacks merit.

      In the next claim of error, the Turner/Finley brief maintains that

“[trial] counsel was ineffective in failing to object to Commonwealth witness,

Daniel Smith . . . testifying that Appellant has previously stabbed him in the

face with a screwdriver.” (Turner/Finley Brief, at 6-7).

      Trial counsel’s decision not to object to a witness’ testimony cannot be

the ground for a finding of ineffective assistance where it had “any

reasonable basis.”   Commonwealth v. Chmiel, 30 A.3d 1111, 1127 (Pa.

2011) (citation omitted).

      [W]e do not question whether there were other more logical
      courses of action which counsel could have pursued[.] . . . We
      will conclude that counsel’s chosen strategy lacked a reasonable
      basis only if Appellant proves that an alternative not chosen
      offered a potential for success substantially greater than the
      course actually pursued.

Id. (citations and quotation marks omitted).

      In this case, at the PCRA hearing, trial counsel testified that she did

not object to Smith’s testimony about Appellant’s previous screwdriver

attack on him, because of her trial strategy.      (See N.T. PCRA Hearing,

4/22/16, at 23).     Specifically, she presented the defense that witness,

Brandon Crumb, committed the homicide, and that Smith accused Appellant

of its commission as “an ultimate act of revenge to get back at [Appellant]

for stabbing him.” (Id.). She further testified that Appellant agreed to this

strategy. (See id. at 25).

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      Based on the foregoing, trial counsel had a reasonable basis for not

objecting to the testimony of Mr. Smith, and we “[will] not question whether

there were other more logical courses of action which counsel could have

pursued[,]” where Appellant utterly fails to prove that there was another

alternative with a substantially greater potential for success. Chmiel, supra

at 1127 (citation omitted). Appellant’s second issue fails.

      In the third allegation of error, the Turner/Finley brief states that

“counsel   was   ineffective    in   failing   to   request   a     mistrial    because

[Pennsylvania State Police Corporal Thomas C.] McAndrew violated the

court’s sequestration [o]rder.” (Turner/Finley Brief, at 7). This issue fails.

      “[A] request for sequestration must be specific and supported by a

showing that the interests of justice require it. The purpose of sequestration

is to prevent a witness from molding his testimony with that presented by

other witnesses.” Commonwealth v. Stevenson, 894 A.2d 759, 767 (Pa.

Super. 2006), appeal denied, 917 A.2d 846 (Pa. 2007) (citation omitted).

However, “in a criminal case, the prosecution has a right to have the law

enforcement agent primarily responsible for investigating the case at the

counsel table to assist in presenting the case, even though the agent will be

a witness.” Id. (citation omitted); see also Pa.R.E. 615(b).

      Here,   pursuant   to    counsels’   joint    motion,   the    court     issued   a

sequestration order prohibiting any witnesses from being present in the

courtroom during trial when not testifying. (See N.T. Hearing, 5/01/12, at


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66-67). Corporal McAndrew was present at trial. However, a review of the

record reveals that he was one of the affiant’s in this case, and therefore

was present to assist the Commonwealth prosecutor.              (See Homicide

Investigation Action Reports, 11/18/10).

      Hence, because Corporal McAndrew was “the law enforcement agent

primarily responsible for investigating [Appellant’s] case,” trial counsel had

no basis on which to object. Stevenson, supra at 767; see also Pa.R.E.

615(b).    Moreover, even if Corporal McAndrew did not fall into this

sequestration exception, Appellant has utterly failed to establish that he was

prejudiced in any way by counsel’s failure to object to his presence at trial.

Therefore, Appellant has failed to plead and prove all three prongs required

for a finding of counsel’s ineffectiveness, and the PCRA court properly found

that Appellant’s claim fails. See Benner, supra at 920; Messmer, supra

at 572.

      In his fourth issue, Appellant maintains that “counsel was ineffective in

failing to object to testimony with regard to [his] probationary status.”

(Turner/Finley Brief, at 7) (record citation omitted).       He further asserts

that “trial counsel elicited [] evidence [of his probationary status] despite its

prejudicial nature[.]” (Appellant’s Pro Se Response to Turner/Finley Brief,

at 11). This claim lacks merit.

      At trial, defense counsel’s theory of the case was that Appellant was

innocent, and that witness, Brandon Crum, committed the murder.            (See


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N.T. PCRA Hearing, 4/22/16, at 23; see also N.T. Trial, 5/04/12, at 710).

In support of that theory, trial counsel attempted to create the inference

that Appellant surrendered to police voluntarily, willingly gave a written

statement, and “could have run, but [chose not to because] guilty people

run.” (N.T. Trial, 5/04/12, at 712; see also N.T. Trial, 5/01/12, at 190-91,

301; N.T. Trial, 5/02/12, at 394-95; N.T. Trial, 5/03/12, at 562; N.T. Trial,

5/04/12, at 709-10).      In response to this attempt, the Commonwealth

witnesses testified that Appellant reported to probation because he was

required to do so, and that he did not surrender, but rather the probation

officer turned him in to the Pennsylvania State Police.       (See N.T. Trial,

5/01/12, at 191, 299; N.T. Trial, 5/02/12, at 395-96; N.T. Trial, 5/03/12, at

562, 659-60).

      It appears that trial counsel’s attempt to establish that Appellant

willingly turned himself in to the police was a reasonable part of her trial

strategy. Therefore, because Appellant has utterly failed to establish that an

alternative strategy would have proved more successful, we will not question

counsel’s decision. See Chmiel, supra at 1127. Appellant’s fourth claim of

error does not merit relief.

      In his fifth issue, Appellant argues that trial counsel was ineffective in

her cross-examination of Commonwealth witness, Daniel Smith, as to his

potential bias.    (See Turner/Finley Brief, at 8; Trial Court Opinion,

9/15/16, at 7). We disagree.


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      . . . [C]ross-examination may be used to test a witness’ story, to
      impeach credibility, or to establish the witness’ motive for lying.
      Whenever a prosecution witness may be biased in favor of the
      prosecution due to outstanding charges against him in the same
      jurisdiction, that possible bias, in all fairness, must be made
      known to the jury.        The witness may hope for favorable
      treatment if he testifies in a manner helpful to the prosecution
      even though the prosecution has not made any promises.

Commonwealth v. Thomas, 783 A.2d 328, 334 (Pa. Super. 2001)

(citations and quotation marks omitted).

      In this case, the trial court observed:

      The cross examination of Daniel Smith was thorough and
      addressed Mr. Smith’s potential bias toward [Appellant]. In fact,
      the testimony of the incident involving the screwdriver stabbing
      was evidence of Mr. Smith’s bias.

                                   *     *      *

            [Appellant] was not only afforded ample opportunity to
      cross examine Mr. Smith, but did so in a [thorough] manner.
      The fact that Mr. Smith’s answers were not as [Appellant]
      wished does not make trial counsel ineffective.

(Trial Ct. Op., at 7). We agree.

      Our independent review of the record comports with the trial court’s

description of counsel’s cross-examination of Smith. On direct examination,

Smith testified that, approximately two months before the murder at issue in

this case, Appellant stabbed him with a screwdriver during a dispute. (See

N.T. Trial, 5/01/12, at 84). However, he maintained that he and Appellant

did not have any other problems after that. (See id.). In fact, he was with

Appellant to go clubbing on the night that he witnessed Appellant shoot the

victim. (See id.).

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       In an effort to show that Smith was testifying falsely against Appellant

because of bias, counsel impeached him with evidence and prior inconsistent

statements that showed contradictions in his testimony. (See id. at 87, 93-

95, 104-06).     She attempted to establish his motive for lying, including

retaliation for the screwdriver incident.       (See id. at 113-15, 129).

Additionally, she expressly asked Smith if accusing Appellant of homicide

was just “a really good way to get back at him[.]” (Id. at 121).

       Based on the foregoing, and our review of the entire trial transcript,

we conclude that it supports the court’s finding that counsel did not provide

ineffective assistance in her cross-examination of Smith where she “test[ed]

[Smith’s] story, [] impeach[ed his] credibility, [and] establish[ed] [his]

motive for lying.”   Thomas, supra at 334.        Appellant’s fifth issue lacks

merit.

       The PCRA court properly found that all five of Appellant’s claims of

ineffective assistance of trial counsel lack merit.   See Benner, supra at

919.     Moreover, our independent review of the certified record does not

reveal any other meritorious issues. See Wrecks, supra at 721.




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     Order affirmed. Counsel’s petition to withdraw granted.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/15/2017




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