Com. v. Kebede, E.

J-S73006-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
EMRU KEBEDE,
Appellant No. 1228 MDA 2014
Appeal from the PCRA Order June 27, 2014
In the Court of Common Pleas of Lancaster County
Criminal Division at No(s): CP-36-CR-0003556-2007
BEFORE: BOWES, WECHT, and MUSMANNO, JJ.
MEMORANDUM BY BOWES, J.: FILED DECEMBER 04, 2014
Emru Kebede appeals from the June 27, 2014 order denying him PCRA
relief. Counsel has filed a petition to withdraw. We grant that petition and
affirm.
On May 2, 2007, Appellant, who was sixteen years old, met with
Abraham Sanchez, Lorenzo Schrijver, and Robert Michael Baker at the home
of Baker’s fiancée, Susan Bass. The four friends had a firearm and decided
to either commit a burglary or break into a car in order to obtain money for
a marijuana-selling enterprise.
The four cohorts drove around to scout for a suitable location when
Schrijver spied a house located in an isolated area and an elderly man,
Ray Diener, seated alone inside. After parking the car, Schrijver approached
the house and rang the doorbell while Appellant, Baker, and Sanchez hid.
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When Mr. Diener answered the door, Schrijver asked to use the telephone
and told the victim that his car was broken down. Mr. Diener returned inside
his house to retrieve his cellular telephone. Schrijver handed the gun to
Sanchez and prepared to attack the victim.
When the victim returned, Schrijver took the phone while Sanchez
revealed himself, pointed the gun at Mr. Diener, and told him to lie down.
The victim grabbed the gun and screamed. While the victim and Sanchez
wrestled for the weapon, it discharged and a bullet hit the victim in the hip.
Mr. Diener fell and began to cry and plead for help. Appellant and Baker fled
toward the car. Schrijver stayed behind and told Sanchez to shoot the man
again; Sanchez complied.
By that time, the victim’s wife, Barbara, had awakened due to her
husband’s screams and came outside. She saw her husband on the ground
and then ran inside her home, locked the doors, called the police, and
reported that two men were attempting to enter her home. After Sanchez
shot the victim a third time, the four men left the scene in their car.
On September 10, 2010, Appellant was found guilty of second-degree
murder, and he subsequently was sentenced to the applicable mandatory
sentence of life imprisonment without parole. On direct appeal, we affirmed,
and our Supreme Court denied allowance of appeal. Commonwealth v.
Kebede, 23 A.3d 1080 (Pa.Super. 2011) (unpublished memorandum),
appeal denied, 27 A.3d 1015 (Pa. 2011).
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Appellant filed a timely pro se PCRA petition, counsel was appointed
and filed an amended petition. Therein, Appellant raised one position: that
his sentence of life imprisonment without parole was unconstitutional under
Miller v. Alabama, 132 S. Ct. 2455 (2012) (mandatory sentence of life
imprisonment without parole constitutes cruel and unusual punishment if
homicide offender is a minor when crime occurred). Appellant maintained
that Miller applied retroactively. This appeal followed the denial of PCRA
relief.
Initially, we note that appellate counsel has petitioned this Court to
withdraw pursuant to the mandates of Commonwealth v. Turner, 544
A.2d 927 (Pa. 1988), and Commonwealth v. Finley, 550 A.2d 213
(Pa.Super. 1988) (en banc). These cases govern the procedure for
withdrawal of court-appointed counsel for purposes of post-conviction
proceedings. “Independent review of the record by competent counsel is
required before withdrawal is permitted” in the PCRA setting.
Commonwealth v. Widgins, 29 A.3d 816, 817 (Pa.Super. 2011) (quoting
Commonwealth v. Pitts, 981 A.2d 875, 876 n.1 (Pa. 2009)). That
independent review requires:
1) A “no-merit” letter by PCRA counsel detailing the nature and
extent of his review;
2) The “no-merit” letter by PCRA counsel listing each issue the
petitioner wished to have reviewed;
3) The PCRA counsel's “explanation”, in the “no-merit” letter, of
why the petitioner's issues were meritless;
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4) The . . . court conducting its own independent review of the
record; and
5) The . . . court agreeing with counsel that the petition was
meritless.
Widgins, supra at 818 (quoting Pitts, supra at 876 n.1). In addition,
In Commonwealth v. Friend, 896 A.2d 607 (Pa.Super.
2006), [abrogated on other grounds by Pitts, supra.] this Court
had imposed an additional requirement for counsel seeking to
withdraw in collateral proceedings:
. . . .[W]e here announce a further prerequisite
which must hereafter attend an application by
counsel to withdraw from representing a PCRA
petitioner, namely, that PCRA counsel who seeks
to withdraw must contemporaneously serve a
copy on the petitioner of counsel's application
to withdraw as counsel, and must supply to the
petitioner both a copy of the “no-merit” letter
and a statement advising the petitioner that, in
the event that the court grants the application
of counsel to withdraw, he or she has the right
to proceed pro se or with the assistance of
privately retained counsel.
Id. at 614 (emphasis in original).
Widgins, supra at 818. This additional requirement, which has not been
abrogated by our Supreme Court, is still applied by the Superior Court. Id.;
see also Commonwealth v. Rykard, 55 A.3d 1177 (Pa.Super. 2012).
In the present case, counsel has filed a brief and a petition to withdraw.
In his petition to withdraw, counsel outlines that he carefully reviewed the
record, researched all issues, and concluded that there are no meritorious
questions to present on appeal. The filed brief, which is labeled as a
Turner/Friend statement, constitutes a no-merit letter, sets forth the issue
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Appellant wants to assert, and establishes the lack of merit of that issue.
Attached to the brief is a copy of a letter that counsel sent to Appellant. That
letter details that counsel sent Appellant a copy of the brief, told Appellant
that counsel was seeking to withdraw, and advised Appellant that he had the
right to represent himself and proceed pro se or to hire a lawyer. Hence,
counsel has satisfied the mandates applicable to him.
We now examine the issue raised on appeal: “Whether the post-
conviction court erred when it denied relief on Appellant's claim that the
mandatory sentence of life imprisonment without parole was imposed
illegally?” Appellant’s brief at 2. Before reaching its merits, we outline the
applicable standard of appellate review:
On appeal from the denial of PCRA relief, our standard and
scope of review is limited to determining whether the PCRA
court's findings are supported by the record and without legal
error.” Commonwealth v. Edmiston, 65 A.3d 339, 345 (Pa.
2013). “Our scope of review is limited to the findings of the
PCRA court and the evidence of record, viewed in the light most
favorable to the prevailing party at the PCRA court level.”
Commonwealth v. Koehler, 614 Pa. 159, 36 A.3d 121, 131
(2012). “The PCRA court's credibility determinations, when
supported by the record, are binding on this Court.”
Commonwealth v. Spotz, 610 Pa. 17, 18 A.3d 244, 259
(2011). “However, this Court applies a de novo standard of
review to the PCRA court's legal conclusions.” Id.
Commonwealth v. Medina, 92 A.3d 1210, 1214-15 (Pa.Super. 2014).
In the present case, Appellant was a juvenile when he committed the
crime in question and was subject to a mandatory sentence of life
imprisonment without parole. As noted, Miller prohibits the imposition of
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such a sentence on a juvenile homicide offender. However, as counsel
points out in his brief, Miller has been denied retroactive application, and
hence, that decision does not apply to a juvenile PCRA petitioner.
Commonwealth v. Cunningham, 81 A.3d 1 (Pa. 2013). Thus, Appellant
cannot obtain relief under Miller.
We have conducted an independent review of the record and agree
that there are no meritorious issues that can be raised in this appeal.
Hence, we affirm.
Petition of R. Russell Pugh, Esquire, to withdraw is granted.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/4/2014
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