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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                         :         PENNSYLVANIA
                  Appellee               :
                                         :
          v.                             :
                                         :
TERRELL DEVANTE FISHER                   :
                                         :
                  Appellant              :   No. 590 MDA 2015

                 Appeal from the PCRA Order of March 24, 2015
               In the Court of Common Pleas of Lancaster County
               Criminal Division at Nos.: CP-36-CR-0003907-2013

BEFORE:        PANELLA, J., WECHT, J., and STRASSBURGER, J.*

CONCURRING MEMORANDUM BY STRASSBURGER, J.:FILED DECEMBER 11, 2015

     I join the Majority memorandum except for the analysis provided on

page 7, relating to a court’s independent review of the record conducted

under Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and

Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).

     The learned Majority takes the position that a court is obligated to

conduct the type of independent review akin to that which is required now

under Anders v. California, 386 U.S. 738 (1967), pursuant to this Court’s

recent decision in Commonwealth v. Flowers, 113 A.3d 1246, 1249-50

(Pa. Super. 2015) (requiring an independent “review of the entire record for

any non-frivolous issues,” including “any additional, non-frivolous issues

overlooked by counsel”). Specifically, the Majority interprets Turner/Finley

to require that, once the technical requirements of Turner/Finley are met,


*Retired Senior Judge assigned to the Superior Court.
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a court must conduct an independent review of the entire record to

determine whether any meritorious issues exist.               I disagree with this

interpretation.

        Turner/Finley requires this Court (or the PCRA court) to conduct an

independent review of the record for the limited purpose of determining

whether the claims raised in the petition are without merit. Finley, 550

A.2d at 215 (“Once counsel for the petitioner determines that the issues

raised under the PCHA[1] are “meritless”, and the PCHA court concurs,

counsel will be permitted to withdraw … .”); Turner, 544 A.2d at 928-29

(“When, in the exercise of his professional judgment, counsel determines

that the issues raised under the PCHA are meritless, and when the PCHA

court concurs, counsel will be permitted to withdraw … .”); see also

Commonwealth           v.   Reed,   107   A.3d   137,   141    (Pa.    Super.   2014)

(“Accordingly, we will proceed with our independent review of the questions

presented to determine if counsel correctly concluded that the issues raised

had no merit.”); Commonwealth v. Doty, 48 A.3d 451, 454 (Pa. Super.

2012) (“If the court agrees with counsel that the claims are without merit,

the     court   will   permit   counsel    to    withdraw     and     deny   relief.”);

Commonwealth v. Widgins, 29 A.3d 816, 819-20 (Pa. Super. 2011) (“We

now turn to an independent review of Widgins’ PCRA [p]etition to ascertain

1
    The PCHA is the predecessor to the PCRA.



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whether his claim entitles him to relief” and concluding that his “claim lacks

merit and the instant appeal is frivolous”); Commonwealth v. Daniels,

947 A.2d 795, 798 (Pa. Super. 2008) (“We now turn to an independent

review of Appellant’s PCRA petition to ascertain whether his claim entitles

him to relief.”); Commonwealth v. Wrecks, 931 A.2d 717, 721 (Pa. Super.

2007) (explaining that the court must “conduct its own review of the merits

of the case” and that “[i]f the court agrees with counsel that the claims are

without merit, the court will permit counsel to withdraw,” but “if the claims

appear   to   have   merit,   the   court   will   deny   counsel’s   request”);

Commonwealth v. Hayes, 596 A.2d 195, 196 n.4 (Pa. Super. 1991) (“As

provided for by Turner and Finley, counsel will be permitted to withdraw if,

after separate and independent review of the issues raised by defendant’s

collateral petition, both counsel and the court conclude defendant’s issue are

meritless. … If … the court determines that the issues raised are without

merit, then counsel will usually be permitted to withdraw … .”).

      Although case law exists to support the Majority’s position, 2 that

approach is untenable given the nature of PCRA proceedings.           First, the

Majority’s requirement that this Court comb the record in search of

meritorious issues not raised by counsel in the Turner/Finley brief provides

2
  See, e.g., Commonwealth v. Freeland, 106 A.3d 768 (Pa. Super. 2014)
(granting a petition to withdraw filed pursuant to Turner/Finley, concluding
that “[n]one of Appellant’s claims merit[s] relief,” and that “[o]n
independent review, we find no other claims of merit”).


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the same level of protection to PCRA petitioners as is provided to criminal

defendants on direct appeal under Anders and Commonwealth v.

Santiago, 978 A.2d 349 (Pa. 2009).           This is inconsistent with the

oft-repeated fact recognized by the Majority that Anders and Santiago

provide greater protection than Turner and Finley.             See Majority

Memorandum at 4 (citing Commonwealth v. Widgins, 29 A.3d 816 (Pa.

Super. 2011)). This is because the right to PCRA counsel is statutory rather

than constitutional.   See Wrecks, 931 A.2d at 722 (“The heightened

protection afforded to Anders appellants as compared to Turner/Finley

petitioners/appellants arises because the right to counsel on direct appeal

and the right to the direct appeal itself are constitutional ones.         By

comparison, a first-time PCRA petitioner’s right to counsel is born of rule, …

and that right does not spring from the federal or state constitutions.”

(citations omitted)). Under the Majority’s approach, Turner/Finley review

is no different than Anders/Santiago review.

      Second, in general, any issue not raised in the PCRA petition is

waived. See Commonwealth v. Baumhammers, 92 A.3d 708, 731 (Pa.

2014) (“[S]ince the present claim was not raised in Appellant’s PCRA

petition, and no request was made to amend the petition to include it, it is

waived.”); see also Commonwealth v. Rigg, 84 A.3d 1080, 1085 (Pa.

Super. 2014) (explaining that, with exception, “[w]here the petitioner does




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not seek leave to amend his petition after counsel has filed a Turner/Finley

no-merit letter, the PCRA court is under no obligation to address new

issues”) (citing Commonwealth v. Rykard, 55 A.3d 1177 (Pa. Super.

2012).    Waived    claims   are   frivolous,   let   alone   lacking   in   merit.

Commonwealth v. Kalichak, 943 A.2d 285, 291 (Pa. Super. 2008).

Therefore, outside of the narrow scope of issues that are nonwaivable and

able to be raised by this Court sua sponte, such as an illegal sentence or

lack of jurisdiction,3 this Court’s search of the record for a meritorious issue

not raised in the PCRA petition is pointless.

      A PCRA petitioner obviously wants to have each of the issues raised in

the PCRA petition reviewed; otherwise, he or she would not have raised

them. If counsel has failed to address all of the issues that the defendant

wishes to raise, then we are obligated to deny counsel’s petition to withdraw

without ever reaching the stage of independent review. See, e.g., Wrecks,

931 A.2d at 721 (“If counsel fails to satisfy the foregoing technical

prerequisites of Turner/Finley, the court will not reach the merits of the

underlying claims but, rather, will merely deny counsel’s request to

withdraw. Upon doing so, the court will then take appropriate steps, such as

directing counsel to file a proper Turner/Finley request or an advocate’s

brief.”). Thus, we will never conduct an independent review of the case

3
  Indeed, these are the types of issues that we are mindful of and will
address in the context of any case before us.


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unless and until counsel has addressed all issues raised in the PCRA petition

and concluded that those issues lack merit.

      Therefore, the Majority’s approach is both inconsistent with much of

the case law on the subject and an exercise in futility.




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