J-A20043-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                          :         PENNSYLVANIA
                                          :
              v.                          :
                                          :
                                          :
 WESLEY RICHARDS A/K/A WESLEY             :
 RICHARD BARNES A/K/A JAON                :
 HAMILTON,                                :
                                          :
                    Appellant             :        No. 1531 WDA 2017


               Appeal from the PCRA Order October 17, 2017
            in the Court of Common Pleas of Allegheny County,
            Criminal Division at No(s): CP-02-CR-0000567-2014

BEFORE: BENDER, P.J.E., LAZARUS, J., and MUSMANNO, J.

MEMORANDUM BY MUSMANNO, J.:                     FILED NOVEMBER 20, 2018

      Wesley Richards a/k/a Wesley Richard Barnes a/k/a Jaon Hamilton

(“Richards”) appeals from the Order dismissing his first Petition filed pursuant

to the Post Conviction Relief Act (“PCRA”). See 42 Pa.C.S.A. §§ 9541-9546.

Additionally, Richards’s counsel, Charles R. Pass, III, Esquire (“Attorney

Pass”), has filed a separate Application to withdraw as counsel and an
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accompanying brief.1 We grant Attorney Pass’s Application to withdraw and

affirm the PCRA court’s Order.

       This Court previously set forth the factual history of this case as follows:

       This matter arises out of the shooting death of the [victim, Donald
       Lowry (“Lowry”)], on October 18, 2013[,] in a bar on the North
       Side of Pittsburgh. … When [Lowry] entered the bar the first time,
       the security worker, Brian Collins [(“Collins”)], searched him and
       found a pocket knife[,] which he removed and placed behind the
       bar. Later, [Lowry] left the bar and the knife was returned to him.
       Shortly thereafter, [Lowry] returned and was searched again[,]
       but the knife was not found. [Richards] and his companion,
       Walter Banks [(“Banks”)], were also searched each time they
       entered or returned to the bar[,] but found no weapons. [] Collins
       knew [Richards] for several years and also knew [Lowry] from the
       neighborhood.

       At some point[,] [] Collins became aware of something happening
       towards the back of the bar[,] and as he went towards that area[,]
       he saw [Lowry] falling to the ground and then saw [Richards]
       come around the corner with a gun in his hand. [] Collins grabbed
       [Richards] and pinned him against the bar[,] but was then hit in
       the head with a bottle by [] Banks. Stunned by the blow to the
       head, [] Collins let go of [Richards,] and when he looked again he
       saw [Richards] standing over [Lowry,] shooting at him three times
       as he lay on the ground. [] Collins then followed [Richards] and
       [] Banks towards the back as they left but then returned to
       [Lowry]. [] Collins found [Lowry] still alive and saw a closed
       pocket knife on the ground next to him.[fn]

____________________________________________


1 Attorney Pass’s appellate brief appears to be in the nature of a brief filed
pursuant to Anders v. California, 386 U.S. 738 (1967), which applies when
counsel seeks to withdraw from representation on direct appeal. When, as in
this case, counsel seeks to withdraw from representation on collateral appeal,
the dictates of Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc), are
applicable. However, because an Anders brief provides greater protection to
a defendant, this Court may accept an Anders brief in lieu of a Turner/Finley
“no-merit” letter. See Commonwealth v. Reed, 107 A.3d 137, 139 n.5 (Pa.
Super. 2014).

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     [fn]The autopsy showed [Lowry] died of gunshot wounds to the
     trunk. The first entered in the central upper back and the second
     in the lateral left buttock.

     … [T]he disc jockey who was working at the bar that night,
     Sylvanius Flowers [(“Flowers”)], … testified that he observed
     [Lowry], [Richards] and [] Banks standing near the bar together
     and they appeared to be laughing and joking. He then saw
     [Richards] backing up toward the stairs and pull a gun out.

                                     ***

     [] Flowers also testified:

        He pulls the gun up. He fires a shot. [Lowry] duck[s] and
        take[s] the other guy’s arm off [from around his neck] and
        he tries to run. [Then] after that he falls down. I don’t know
        if he was hit or not but he falls down. Then [Richards] comes
        up from around the back, steps back some, and starts
        running back, and goes and shoots him three times in the
        back.

     [] Flowers testified that he never saw a knife in [Lowry’s] hand
     and never saw him threaten [Richards] with a knife. He also
     testified that he saw … [] Collins[] grab [Richards] and wrestle
     with him for the gun before [] Collins was hit in the head with a
     bottle. The bartender, Tylonda Northington, also testified that she
     heard shots and ducked behind the bar and then saw [] Collins
     struggling with [Richards] and [Richards’s] hand come over the
     bar with a gun in it.

     The Commonwealth also introduced video surveillance taken from
     several cameras in the bar that showed [Lowry], [Richards] and
     [] Banks inside the bar before and during the shooting and
     confirmed the testimony of the eyewitnesses.

Commonwealth v. Richards, 153 A.3d 1120 (Pa. Super. 2016) (unpublished

memorandum at 1-3) (citation omitted, footnote in original).

     On November 3, 2014, following a nonjury trial, Richards was found

guilty of murder of the third degree, persons not to possess a firearm, and


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firearms not to be carried without a license. On February 11, 2015, the trial

court sentenced Richards to an aggregate term of 20-40 years in prison. This

Court affirmed the judgment of sentence, after which the Pennsylvania

Supreme Court denied allowance of appeal. See id., appeal denied, 164

A.3d 468 (Pa. 2016).

       Richards filed a timely pro se PCRA Petition. The PCRA court appointed

counsel, who filed an amended PCRA Petition. The PCRA court later issued a

Pa.R.Crim.P. 907 Notice.2 Thereafter, the PCRA court dismissed the Petition.

Richards filed a timely Notice of Appeal.

       Richards raises the following question for our review:

       Whether trial counsel was ineffective for failing to preserve a claim
       that the conviction for [third-degree murder] was against the
       weight of the evidence that the Commonwealth disproved, beyond
       a reasonable doubt, that [Richards’s] conduct constituted
       Voluntary Manslaughter on the basis of imperfect self-defense?

Turner/Finley Brief at 2.

       Before addressing Richards’s claim on appeal, we must address Attorney

Pass’s Turner/Finley “no-merit” brief and accompanying Application to

withdraw as counsel. Where counsel seeks to withdraw on collateral appeal,

the   procedure      outlined    in   Turner/Finley   must   be   followed.    In

Commonwealth v. Pitts, 981 A.2d 875 (Pa. 2009), our Supreme Court

explained the procedure for withdrawal as follows:


____________________________________________


2 The PCRA court granted Richards’s PCRA Petition in part, and awarded him
credit for time served (17 days). See PCRA Court Opinion, 4/30/18, at 2.

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      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;

      4) The PC[R]A court conducting its own independent review of the
      record; and

      5) The PC[R]A court agreeing with counsel that the petition was
      meritless.

Id. at 876 n.1 (citation omitted).     Further, our Court has held that the

Supreme Court in Pitts did not expressly overrule the additional requirement

imposed by this Court in Commonwealth v. Friend, 896 A.2d 607, 615 (Pa.

Super. 2006), stating that

      PCRA counsel must contemporaneously forward to the petitioner
      a copy of the application to withdraw, which must include (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.

Commonwealth v. Widgins, 29 A.3d 816, 818 (Pa. Super. 2011).

      Here, in the “no-merit” brief, Attorney Pass described the extent of his

review, identified the issue that Richards sought to raise, and explained why

that issue lacked merit. Additionally, Attorney Pass provided Richards notice

of his intention to seek permission to withdraw from representation and a copy

of the “no-merit” brief, and advised Richards of his rights in lieu of

representation.   Thus, we conclude that Attorney Pass has substantially

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complied with the requirements necessary to withdraw as counsel.             See

Commonwealth v. Karanicolas, 836 A.2d 940, 947 (Pa. Super. 2003)

(holding that substantial compliance with requirements to withdraw as counsel

will satisfy the Turner/Finley criteria).     We now independently review

Richards’s claims to ascertain whether they entitle him to relief.

             Our standard of review of a PCRA court’s [dismissal] of a
      petition for post[-]conviction relief is well-settled: We must
      examine whether the record supports the PCRA court’s
      determination, and whether the PCRA court’s determination is free
      of legal error. The PCRA court’s findings will not be disturbed
      unless there is no support for the findings in the certified record.

                                      ***

             It is well-established that counsel is presumed to have
      provided effective representation unless the PCRA petitioner
      pleads and proves all of the following: (1) the underlying legal
      claim is of arguable merit; (2) counsel’s action or inaction lacked
      any objectively reasonable basis designed to effectuate his client’s
      interest; and (3) prejudice, to the effect that there was a
      reasonable probability of a different outcome if not for counsel’s
      error. The PCRA court may deny an ineffectiveness claim if the
      petitioner’s evidence fails to meet a single one of these prongs.
      Moreover, a PCRA petitioner bears the burden of demonstrating
      counsel's ineffectiveness.

Commonwealth v. Franklin, 990 A.2d 795, 797 (Pa. Super. 2010) (citations

omitted).

      Richards claims that his trial counsel was ineffective for failing to

preserve a claim that his conviction for third-degree murder was against the

weight of evidence. Turner/Finley Brief at 17-20, 22. Richards argues that

the evidence demonstrated that his conduct constituted imperfect self-defense

voluntary manslaughter. Id. at 18-19, 21, 22-23. Richards asserts that the

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victim was seen possessing a knife twenty minutes before the shooting. Id.

at 21.

         With regard to a weight of the evidence claim, our standard of review is

as follows:

         It is well settled that the jury is free to believe all, part, or none
         of the evidence and to determine the credibility of the witnesses,
         and a new trial based on a weight of the evidence claim is only
         warranted where the jury’s verdict is so contrary to the evidence
         that it shocks one’s sense of justice. In determining whether this
         standard has been met, appellate review is limited to whether the
         trial judge’s discretion was properly exercised, and relief will only
         be granted where the facts and inferences of record disclose a
         palpable abuse of discretion.

Commonwealth v. Houser, 18 A.3d 1128, 1135-36 (Pa. 2011) (citations

and quotation marks omitted).

         The Pennsylvania Crimes Code defines murder of the third degree as

any killing with malice that is not first-or second-degree murder.           See 18

Pa.C.S.A. § 2502(c); see also Commonwealth v. Baskerville, 681 A.2d

195, 199-200 (Pa. Super. 1996).

         Malice consists of a wickedness of disposition, hardness of heart,
         cruelty, recklessness of consequences, and a mind regardless of
         social duty, although a particular person may not be intended to
         be injured…. Malice may be found where the defendant
         consciously disregarded an unjustified and extremely high risk
         that his actions might cause serious bodily injury.

Commonwealth v. DiStefano, 782 A.2d 574, 582 (Pa. Super. 2001)

(citation, quotation marks, and brackets omitted). “[M]alice can be inferred

from the use of a deadly weapon upon a vital part of the victim’s body.”

Commonwealth v. Thomas, 54 A.3d 332, 335-36 (Pa. 2012).

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            A defense of imperfect self-defense exists where the
     defendant actually, but unreasonably, believed that deadly force
     was necessary. However, all other principles of self-defense must
     still be met in order to establish this defense. The requirements
     of self-defense are statutory: The use of force upon or toward
     another person is justifiable when the actor believes that such
     force is immediately necessary for the purpose of protecting
     himself against the use of unlawful force by such other person on
     the present occasion. If the defender did not reasonably believe
     deadly force was necessary[,] he provoked the incident, or he
     could retreat with safety, then his use of deadly force in self-
     defense was not justifiable. A successful claim of imperfect self-
     defense reduces murder to voluntary manslaughter.

Commonwealth v. Truong, 36 A.3d 592, 599 (Pa. Super. 2012) (quotation

marks and citations omitted); see also 18 Pa.C.S.A. § 2503(b).

            When the defendant introduces evidence of self-defense,
     the Commonwealth bears the burden of disproving such a defense
     beyond a reasonable doubt. The Commonwealth cannot sustain
     its burden of proof solely on the factfinder’s disbelief of the
     defendant’s testimony. The disbelief of a denial does not, taken
     alone, afford affirmative proof that the denied fact existed so as
     to satisfy a proponent’s burden of proving that fact.

Commonwealth v. Rivera, 983 A.2d 1211, 1221 (Pa. 2009) (citations and

quotation marks omitted).

     In this case, the Commonwealth presented evidence that Richards did

not believe deadly force was necessary, that Richards could have retreated

safely, and that Richards provoked the incident.     Indeed, Lowry did not

exchange words with Richards, attempt to stab or injure Richards, or threaten

Richards. See N.T., 10/29/14, at 13, 45 (noting that the pocketknife found

under Lowry’s body was folded and in a closed position). Further, testimony

and video evidence confirmed that Richards approached Lowry, stood over


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him, and shot him three times.      See, e.g., id. at 42-44 (wherein Collins

testified he attempted to restrain Richards after he saw Richards with a gun

in his hand.   Collins was hit in the head and released Richards, and saw

Richards stand over Lowry and fire three shots); id. at 85-86 (wherein Flowers

testified that he saw Richards pull out a gun to fire a shot and then Lowry fell

down, and he saw Richards stand over Lowry, who was still on the ground,

and shoot Lowry three times).

      Thus, the evidence did not support an imperfect self-defense claim, and

verdict was not against the weight of the evidence.        Because Richards’s

underlying claim is without arguable merit, his ineffectiveness claim fails. See

Franklin, 990 A.2d at 797.

      Additionally, our independent review of the record indicates that the

Petition is without merit. See Pitts, 981 A.2d at 876 n.1. Accordingly, we

grant Attorney Pass’s Application to withdraw and affirm the Order dismissing

Richards’s PCRA Petition.

      Application to Withdraw granted; Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/20/2018



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