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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                    :   IN THE SUPERIOR COURT OF
                                                    :        PENNSYLVANIA
                                                    :
                v.                                  :
                                                    :
                                                    :
    MELVIN WALLACE AMOS, SR.                        :
                                                    :
                       Appellant                    :   No. 463 WDA 2019

              Appeal from the PCRA Order Entered March 11, 2019
      In the Court of Common Pleas of Mercer County Criminal Division at
                        No(s): CP-43-CR-0001559-2015


BEFORE: GANTMAN, P.J.E., LAZARUS, J., and PELLEGRINI, J.*

MEMORANDUM BY PELLEGRINI, J.:                              FILED FEBRUARY 3, 2020

        Melvin Wallace Amos, Sr. (Amos) appeals from the order of the Court of

Common Pleas of Mercer County (trial court) dismissing his first petition filed

pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546.

Counsel for Amos seeks to withdraw from representation and has filed a brief

under Anders v. California, 386 U.S. 738 (1967). We deny counsel’s request

to withdraw and direct counsel to take appropriate action in accordance with

our decision.

                                               I.

        On August 17, 2015, the Mercer County Drug Task Force applied for a

warrant to search Amos’s home at 1140 Fruit Avenue in Farrell, Pennsylvania.


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*   Retired Senior Judge assigned to the Superior Court.
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The affidavit of probable cause alleged that a confidential informant (CI) made

two controlled purchases of drugs inside the residence, the second one

occurring just two days before when the CI bought crack cocaine from Amos.

The issuing authority granted the search warrant and, at the request of the

Task Force, sealed the affidavit under Pa.R.Crim.P. 211(a). The warrant was

executed the next day and resulted in the seizure of two firearms (a Ruger

.45 caliber pistol and a Sterling Arms .25 caliber pistol) from a bedroom that

also contained Amos’s clothing and personal items. Because of a disqualifying

conviction, Amos was charged with, among other offenses, two counts of

Persons Not to Possess Firearms.1

       On October 20, 2015, Amos waived his preliminary hearing.           At the

preliminary hearing, the Commonwealth did not give Amos the sealed affidavit

despite the Rules of Criminal Procedure requiring it to do so unless it had filed

for an extension, which it had not.              See Pa.R.Crim.P. 211(H)(1).   The

Commonwealth again failed to provide Amos with the sealed affidavit at his

December 22, 2015 arraignment, the latest an affidavit may remain sealed

under the Rules. See Pa.R.Crim.P. 211(H)(2). The Commonwealth eventually




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1 18 Pa.C.S. § 6105(a). Amos was also charged with Possession with Intent
to Deliver (PWID), 35 P.S. § 780-113(a)(30), and Simple Possession, 35 P.S.
§ 780-113(a)(16), but the Commonwealth withdrew the PWID charge at the
preliminary hearing and did the same for Simple Possession at trial.


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provided Amos with the affidavit on April 28, 2016—over six months after it

was supposed to do so.

      Amos continued the case several times to May 9, 2016, at which time

Amos’s new attorney—his third at that point—entered his appearance and

requested a final continuance. The trial court granted it but scheduled trial

for the following month. Two days before trial, on June 13, 2016, trial counsel

filed a motion to suppress the firearms, arguing that suppression was

warranted based on the Commonwealth failing to timely unseal the search

warrant affidavit. He also claimed the warrant lacked probable cause.

      Rather than continue the case, the trial court heard the motion on the

morning of trial and found there was probable cause to search Amos’s home.

It also found that suppression was not an appropriate remedy for the

Commonwealth failing to timely unseal the affidavit of probable cause. After

his motion was denied, Amos proceeded directly to trial and was convicted by

a jury of both firearms offenses. He was later sentenced to concurrent four

to eight year imprisonment terms. After the denial of post-sentence motions,

Amos appealed to this Court to raise, among others, a claim based on Batson

v. Kentucky, 476 U.S. 79 (1986), but did not challenge the denial of his

suppression motion.      On December 22, 2017, this Court affirmed the

judgment of sentence. See Commonwealth v. Amos, 1868 WDA 2016 (Pa.

Super. 2017) (unpublished memorandum).




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       On August 2, 2018, Amos filed a pro se PCRA petition alleging that trial

counsel was ineffective for (1) not timely obtaining discovery, (2) not

challenging the search warrant, and (3) not calling witnesses to establish that

Amos did not own the firearms.            PCRA counsel was appointed and filed a

motion to withdraw stating that Amos’s petition was without arguable merit

and lacked any factual or legal basis. He further stated that he had sent Amos

a “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).2 The trial court granted the withdrawal and informed Amos that he

could either proceed pro se or hire private counsel.

       Amos opted to proceed pro se and filed an amended petition. In his

petition, he preserved the ineffectiveness claims raised in his initial petition

and added a claim alleging that the search warrant lacked probable cause. At

a subsequent PCRA conference, Amos made a number of additional complaints

not included in his amended petition. First, Amos alleged trial counsel was

ineffective for not objecting to the admission at trial of an incriminating

jailhouse phone conversation that he had with his daughter.          Next, Amos


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2 While counsel stated in the motion that the Turner/Finley letter was
attached, it is not attached to the motion to withdraw that is included in the
record. We are unable to determine whether it was attached to the original
motion and simply not included in the record, or whether PCRA counsel failed
to attach it to his motion to withdraw.




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alleged trial counsel was ineffective for failing to challenge the veracity of the

warrant; for not compelling disclosure of the CI’s identity; and for not

obtaining the search warrant affidavit until a week before the trial. 3 He also

alleged that the police did not give him a copy of the search warrant during

its execution. Finally, Amos argued that trial counsel should have presented

a defense that one of the other adults living in the house possessed the

firearms, adding that he believed the jury’s verdict was against the weight of

the evidence. At the end of the conference, the trial court determined no

evidentiary hearing was required to address Amos’s issues.

       On March 11, 2019, the PCRA court entered an opinion and order

dismissing Amos’s PCRA petitions and addressing all of the issues raised by

Amos in his initial and amended petitions, as well as those issues raised at the

PCRA conference. Amos appealed pro se to this Court and, after being ordered

to do so, filed his own statement of errors complained of on appeal under

Pa.R.A.P. 1925(b). After the case was transmitted to this Court, Amos applied

to the trial court for the appointment of appellate counsel, which it did.

Appellate counsel later filed a motion to withdraw as counsel, alleging that




____________________________________________


3 At the conference, the Commonwealth clarified that it had provided the
affidavit to Amos’s previous attorney on April 28, 2016, which would have
been over a month-and-a-half before trial.




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Amos’s appeal to be wholly frivolous and without merit.4 Rather than respond

to counsel’s Anders brief by filing a pro se merits brief, Amos applied to have

his appeal withdrawn so that he could retain new counsel. We denied that

request.

                                               II.

       Before addressing the issues raised by counsel, we first address whether

counsel has satisfied the procedural requirements for withdrawing from

representation.     See Commonwealth v. Muzzy, 141 A.3d 509, 510 (Pa.

Super. 2016) (“Prior to addressing the merits of the appeal, we must review

counsel’s compliance with the procedural requirements for withdrawing as

counsel.”). Preliminarily, we observe that counsel has filed a no-merit brief

and separate petition to withdraw under the procedure established in Anders

and Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009). Where counsel

seeks to withdraw on appeal from the denial of PCRA relief, a Turner/Finley

no-merit letter is the appropriate filing. However, “[b]ecause an Anders brief

provides greater protection to a defendant, this Court may accept an Anders

brief in lieu of a Turner/Finley letter.”            Commonwealth v. Widgins, 29

A.3d 816, 817 n.2 (Pa. Super. 2011) (citation omitted).



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4 Counsel initially filed only an Anders brief without also filing a petition to
withdraw with an attached notice of rights letter. This Court issued a rule to
show cause order instructing counsel to submit his petition to withdraw as
counsel and attach the notice of rights letter that he sent to Amos. Counsel
subsequently complied with our order.

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      As this Court has explained:

      Counsel petitioning to withdraw from PCRA representation must
      proceed under [Turner/Finley] and must review the case
      zealously. Turner/Finley counsel must then submit a “no-merit”
      letter to the trial court, or brief on appeal to this Court, detailing
      the nature and extent of counsel’s diligent review of the case,
      listing the issues which petitioner wants to have reviewed,
      explaining why and how those issues lack merit, and requesting
      permission to withdraw.

      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.

      Where counsel submits a petition and no-merit letter that 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.

Muzzy, 141 A.3d at 510-11.

      Counsel has complied with the requirements for filing an application to

withdraw and states that he has made a conscientious examination of the

record, including Amos’s initial pro se and amended petitions for PCRA relief,

and has concluded that the appeal is frivolous. In addition, counsel sent a

notice of rights letter, along with his brief, to Amos, contemporaneously with

the filing of the application. That letter, which is attached to the application

to withdraw, advises Amos of his right to proceed pro se or retain new counsel.

See Widgins, 29 A.3d at 818.

      While counsel’s application to withdraw and his letter to Amos are

compliant with the procedure for withdrawing from representation, his no-


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merit brief fails in several facets. First, he fails to detail the nature and extent

of his review of the case. By failing to do so, this Court cannot determine

whether he has fulfilled his duty to make a full and conscientious examination

of the record.   If counsel did in fact make such an examination, it is not

reflected in his cursory two-page statement of the case that makes no mention

of many of the significant factual and procedural details of the case. Among

other details, counsel’s summary makes no mention of the Commonwealth’s

failure to provide the sealed search warrant affidavit to Amos under the Rules

of Criminal Procedure; trial counsel filing the motion to suppress two days

before trial; the trial court’s denial of the motion to suppress or its reasoning;

initial PCRA counsel’s rationale in his Turner/Finley letter for withdrawing

from representation; what issues Amos raised in his amended petition and at

the subsequent PCRA hearing; or the PCRA court’s reasoning for denying and

dismissing Amos’s petitions. In the absence of a factual and procedural history

reflecting all of these details, we are not assured that counsel has fulfilled his

duties under Turner/Finley to review the record.

      Counsel’s explanation for his conclusion that Amos’s appeal lacks merit

is similarly lacking. Counsel raises three issues in his brief, all of which were

raised by Amos in his initial pro se PCRA petition:

      1. Whether trial counsel was ineffective for failing to conduct
      discovery in a timely and proper manner.

      2. Whether trial counsel was ineffective for failing to challenge the
      search warrant.


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      3. Whether trial counsel was ineffective for failing, at trial, to call
      witnesses to verify that the firearms belonged to the homeowner,
      not the Appellant.

Anders Brief at 4.

      While Amos’s second issue is frivolous on its face because trial counsel

did in fact file a motion to suppress (albeit two days before trial), counsel has

failed to comply with Turner/Finley in his discussion of the first and third

issues, both of which address whether trial counsel rendered effective

assistance of counsel.

      In order to prevail on a claim alleging ineffective assistance of counsel,

a PCRA petitioner must demonstrate:        “(1) that the underlying claim is of

arguable merit; (2) that counsel’s course of conduct was without a reasonable

basis designed to effectuate his client’s interest; and (3) that he was

prejudiced by counsel’s ineffectiveness, i.e. there is a reasonable probability

that but for the act or omission in question the outcome of the proceeding

would have been different.” Commonwealth v. Grayson, 212 A.3d 1047,

1054 (Pa. Super. 2019) (citation and some formatting omitted).

      Counsel’s analysis of the first issue consists of one paragraph:

      There is simply nothing in the record that reflects that trial counsel
      failed to timely or properly conduct discovery. To the contrary,
      trial counsel ultimately filed an Omnibus Pretrial Motion
      challenging the sufficiency and validity of the search warrant that
      led to the charges and ultimate conviction of Amos. Any such
      search warrant would have been provided through discovery, so
      it appears that trial counsel did obtain timely and proper
      discovery.

Anders Brief at 9.

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      This analysis is insufficient for a number of reasons, chief among them

being counsel’s limited view of the issue and, as noted above, failing to

acknowledge that Amos’s first two attorneys never sought to unseal the search

warrant affidavit despite being entitled to do so under the Rules of Criminal

Procedure. Amos’s first attorney failed to obtain the sealed affidavit at the

preliminary hearing.   Under Pa.R.Crim.P. 211(H)(1), a copy of the sealed

affidavit must be given to the defendant unless the Commonwealth has sought

an extension for good cause, which it did not do in this case. Next, Amos’s

counsel also failed to obtain the affidavit at formal arraignment, even though

Pa.R.Crim.P. 211(H)(2) states that no affidavit shall remain sealed “beyond

the date of the court arraignment.” Amos’s second attorney finally obtained

the sealed affidavit on April 28, 2016, but was then replaced by Amos’s trial

counsel, who apparently never sought to obtain the affidavit from either prior

counsel or the Commonwealth until a week before trial.          See Notes of

Suppression Hearing, 6/15/16, at 3.

      Besides this significant oversight, counsel fails to analyze whether this

ineffectiveness claim has arguable merit or there was a reasonable basis for

Amos’s attorneys choosing to not obtain the affidavit at any of the allowable

opportunities under the Rules of Criminal Procedure. Regardless of whether

Amos was actually prejudiced by this failure, it is counsel’s duty under

Tuner/Finley to explain why his client’s ineffectiveness claim lacks merit by




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citing to the record the salient facts and then analyzing them under applicable

statutes and case law.

      We conclude the same concerning the third issue that counsel has listed

for review. In his initial pro se petition, Amos stated he was seeking to raise

an ineffectiveness claim based on the failure to call a potential witness to

testify about the recovered firearms, both of which were legally owned by

Danielle Dallas, who testified at trial that she was the owner of the firearms.

The framework for raising such a claim of ineffectiveness is well-established:

      When raising a claim of ineffectiveness for the failure to call a
      potential witness, a petitioner satisfies the performance and
      prejudice requirements of the [ineffective assistance of counsel]
      test by establishing that: (1) the witness existed; (2) the witness
      was available to testify for the defense; (3) counsel knew of, or
      should have known of, the existence of the witness; (4) the
      witness was willing to testify for the defense; and (5) the absence
      of the testimony of the witness was so prejudicial as to have
      denied the defendant a fair trial.

Commonwealth v. Sneed, 45 A.3d 1096, 1108-09 (Pa. 2012) (citations

omitted).

      Like his analysis of the first issue, counsel’s examination consists of a

one-page    discussion   that   ignores   the   framework   for   examining   an

ineffectiveness claim and blithely asserts that the issue is meritless because

Amos was convicted under a theory of constructive possession. Counsel cites

neither facts in the record nor controlling case law in his explanation that the

issue is meritless. It is not the job of the reviewing court to explain why and




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how the issue lacks merit under Turner/Finley; instead, it is the duty of

counsel to do so in order to withdraw from representation.

      In addition to the failure to comply with Turner/Finley in regard to the

issues discussed, counsel also fails to raise and discuss any of the other issues

that Amos has demonstrated throughout the PCRA proceedings that he wishes

to be raised. It is well-settled that after zealous, diligent review of the case,

PCRA counsel seeking to withdraw must detail each of “the issues which

petitioner wants to have reviewed” and explain “why and how those issues

lack merit[.]” Muzzy, 141 A.3d at 511 (quoting Commonwealth v. Wrecks,

931 A.2d 717, 721 (Pa. Super. 2007)).

      As discussed above, the PCRA court addressed the merits of all of

Amos’s issues in its opinion denying PCRA relief, including the issues raised in

the amended petition and at the PCRA conference.          Among others, these

issues included trial counsel’s effectiveness in regard to the admission of a

jailhouse phone conversation; trial counsel’s effectiveness in moving to

suppress the firearms, as well as the underlying merits of the trial court’s

denial of the motion; and trial counsel failing to raise any issue with Amos not

being provided a copy of the search warrant at the time of execution. That

the PCRA court found these issues to be meritless does not alleviate counsel’s

duty under Turner/Finely to examine all of the issues that his client wants to

be raised and addressed, and then explain how and why they lack merit. By

failing to do so, counsel has failed to comply with Turner/Finley.


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      Accordingly, because he has failed to fulfill his obligation for withdrawal,

we deny counsel’s application to withdraw as counsel. We direct counsel to

file either an advocate’s brief or a Turner/Finley no-merit letter and

application to withdraw as counsel, within 30 days.

      Application to withdraw as counsel denied. Counsel directed to file an

advocate’s brief or compliant application to withdraw within thirty 30 days.

Panel jurisdiction retained.

      Judge Lazarus joins the memorandum.

      President Judge Emeritus Gantman concurs in the result.




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