J-S14019-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    ANTOINE MOON                               :
                                               :
                       Appellant               :   No. 1345 EDA 2018

                    Appeal from the PCRA Order April 9, 2018
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                        No(s): CP-51-CR-0001843-2015


BEFORE:      LAZARUS, J., NICHOLS, J., and PELLEGRINI, J.*

MEMORANDUM BY NICHOLS, J.:                               FILED APRIL 29, 2019

        Appellant Antoine Moon appeals from the order dismissing his first,

timely Post Conviction Relief Act1 (PCRA) petition without a hearing. Appellant

claims that the PCRA court erred in permitting his first PCRA counsel to

withdraw pursuant to Turner/Finley2 without investigating his assertion that

his plea counsel was ineffective. We conclude that Appellant’s claim has been

waived and affirm.




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*   Retired Senior Judge assigned to the Superior Court.

1   42 Pa.C.S. §§ 9541-9546.

2 Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
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       Because the parties are familiar with the facts giving rise to this matter,

we do not restate them here. It is sufficient to note that on September 27,

2016, Appellant, who was represented by plea counsel, entered a negotiated

guilty plea to attempted murder, conspiracy to commit aggravated assault,

and persons not to possess a firearm.3 The trial court sentenced Appellant to

12½ to 25 years’ incarceration. Appellant did not file post-sentence motions

or take a direct appeal.

       On June 16, 2017, the PCRA court docketed Appellant’s pro se PCRA

petition.   Appellant, in relevant part, asserted that his plea counsel was

ineffective for failing to investigate an alibi witness, Junior Gordon. The PCRA

court appointed counsel (first PCRA counsel), who filed a petition to withdraw

under Turner/Finley on January 2, 2018. Appellant did not respond to first

PCRA counsel’s Turner/Finley letter.

       On March 5, 2018, the PCRA court issued a notice of intent to dismiss

Appellant’s PCRA petition under Pa.R.Crim.P. 907, indicating that Appellant’s

claim lacked merit.4 Appellant was personally served with the Rule 907 notice,

but he did not respond to the notice. The PCRA court dismissed Appellant’s



____________________________________________


3  18 Pa.C.S. §§ 2502(a), 901(a), 2702(a)(1), 903, and 6105(a)(1),
respectively.

4  While the record does not reveal that the PCRA court formally entered an
order allowing first PCRA counsel to withdraw, he was implicitly permitted to
do so as noted by the docket entry on the Rule 907 order, which indicates that
first PCRA counsel was removed.

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petition on April 9, 2018. That same day, the PCRA court appointed present

counsel to represent Appellant on appeal.

        Appellant filed a timely notice of appeal. In his court-ordered Pa.R.A.P.

1925(b) statement, Appellant challenged first PCRA counsel’s effectiveness.

The PCRA court complied with Rule 1925(a), indicating that “[a] review of the

record indicates that [first PCRA c]ounsel complied with the requirements

under Finley and Turner and the ‘independent review’ requirement was

satisfied.” PCRA Ct. Op., 7/20/18, at 3 (unpaginated).

        Appellant raises the following issue on appeal:

        Did the [PCRA] court commit legal error and abuse its discretion
        by dismissing the PCRA petition because [first PCRA] counsel did
        not comply with the dictates of Turner/Finley by investigating
        and attempting to interview the witness Junior Gordon before
        concluding that any failure by trial counsel to get a statement from
        Mr. Gordon did not induce [Appellant’s] decision to plead guilty
        instead of going to trial?

Appellant’s Brief at 2.

        Appellant asserts that

        [t]he trial court erred when it accepted [first PCRA] counsel’s No-
        Merit letter because counsel had not, in the specific factual[
        ]setting here, conducted a[n] independent investigation into the
        witness Junior [Gordon] and why he had not been interviewed
        prior to concluding that the lack of his interview did not induce
        Appellant’s decision to plead guilty[.]

Id. at 5. Accordingly, Appellant’s sole argument on appeal is that first PCRA

counsel was ineffective because he failed to investigate Mr. Gordon. Id. at 7.

        When considering the dismissal of a timely PCRA petition, we review the

order

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      in the light most favorable to the prevailing party at the PCRA
      level. This review is limited to the findings of the PCRA court and
      the evidence of record. We will not disturb a PCRA court’s ruling
      if it is supported by evidence of record and is free of legal
      error. This Court may affirm a PCRA court’s decision on any
      grounds if the record supports it.

Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa. Super. 2012) (citations

omitted).

      When a PCRA petition has been filed,

      the judge shall promptly review the petition, any answer by the
      attorney for the Commonwealth, and other matters of record
      relating to the defendant’s claim(s). If the judge is satisfied from
      this review that there are no genuine issues concerning any
      material fact and that the defendant is not entitled to post-
      conviction collateral relief, and no purpose would be served by any
      further proceedings, the judge shall give notice to the parties of
      the intention to dismiss the petition and shall state in the notice
      the reasons for the dismissal. The defendant may respond to the
      proposed dismissal within 20 days of the date of the notice. The
      judge thereafter shall order the petition dismissed, grant leave to
      file an amended petition, or direct that the proceedings continue.

Pa. R. Crim. P. 907(1).

      Generally, “when counsel files a Turner/Finley no-merit letter to the

PCRA court, a petitioner must allege any claims of ineffectiveness of PCRA

counsel in a response to the court’s notice of intent to dismiss.” Ford, 44

A.3d at 1198.    “Once [an appellant has] filed a notice of appeal, he [has]

waived his right to complain about PCRA counsel’s stewardship, because [the

appellant is] unable to raise those claims for the first time in his Rule 1925(b)

statement.” Commonwealth v. Smith, 121 A.3d 1049, 1055 (Pa. Super.

2015).




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       Here, Appellant did not respond to first PCRA counsel’s Turner/Finley

letter or the PCRA court’s Rule 907 notice. Therefore, Appellant waived his

substantive challenges to first PCRA counsel’s assistance because he failed to

respond to the PCRA court’s Rule 907 notice before the court dismissed his

petition. Appellant alleged first PCRA counsel was ineffective for the first time

in his Rule 1925(b) statement. Accordingly, we are constrained to conclude

that Appellant has waived his challenge to first PCRA counsel’s effectiveness

or the adequacy of first PCRA counsel’s Turner/Finley letter. See Smith,

121 A.3d at 1055; Ford, 44 A.3d at 1198.          Therefore, finding no issues

properly preserved for review, we affirm the PCRA court’s order dismissing

Appellant’s PCRA petition.5

       Order affirmed.



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5  In any event, we note that Appellant’s claim that PCRA counsel was
ineffective would fail. Appellant does not address whether Mr. Gordon was
willing to testify or how the absence of his testimony prejudiced Appellant
beyond his assertion that Mr. Gordon was an alibi witness.                   See
Commonwealth v. Pander, 100 A.3d 626, 639 (Pa. Super. 2014) (noting
that regarding the failure of counsel to interview a witness, “the petitioner
must prove: (i) the witness existed; (ii) the witness was available to testify;
(iii) counsel knew of, or should have known of, the existence of the witness;
(iv) the witness was willing to testify; and (v) the absence of the testimony
was so prejudicial as to have denied the defendant a fair trial” (citation
omitted)). Therefore, because Appellant failed to establish that plea counsel
was ineffective, his layered claim of PCRA counsel’s ineffectiveness would
warrant no relief on appeal. See Commonwealth v. Tedford, 960 A.2d 1,
13 (Pa. 2008) (“[T]he inability of a petitioner to prove each prong of the
[ineffectiveness] test in respect to trial counsel’s purported ineffectiveness
alone will be fatal to his layered ineffectiveness claim.” (citation omitted)).


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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/29/19




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