Com. v. Dedos, M.

J-S11027-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
MARIA DEDOS :
:
Appellant : No. 2669 EDA 2018
Appeal from the Order Entered August 15, 2018
In the Court of Common Pleas of Delaware County Criminal Division at
No(s): CP-23-CR-0002734-2016
BEFORE: SHOGAN, J., MURRAY, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY MURRAY, J.: FILED MARCH 21, 2019
Maria Dedos (Appellant) appeals from the order denying her first petition
filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-
9546. In this appeal, Appellant’s court-appointed counsel, Scott D. Galloway,
Esquire (Counsel), filed a petition for leave to withdraw as counsel and an
“Anders brief.”1 Because we conclude that Counsel fulfilled the procedural
requirements of Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc), and
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1 Counsel filed a brief pursuant to Anders v. California, 386 U.S. 738, 87
S. Ct. 1396 (1967), apparently in the mistaken belief that an Anders brief is
required where counsel seeks to withdraw on appeal from the denial of PCRA
relief. A Turner/Finley no-merit letter, however, is the appropriate filing.
See Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth
v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc). Because 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.
Fusselman, 866 A.2d 1109, 1111 n.3 (Pa. Super. 2004).
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this appeal is without merit, we grant Counsel’s petition to withdraw and affirm
the PCRA court’s order denying Appellant’s PCRA petition.
The PCRA court summarized the factual and procedural history of this
case as follows:
On March 22, 2016, Ridley Township police officers were
dispatched to a Wawa convenience store, where a woman was
alleged to be harassing patrons and employees while possibly
under the influence. There they encountered [Appellant] who
cursed and screamed at them – as well as store employees and
customers . . . . After she refused to comply with their demands
that she leave the store, the officers arrested her, but only after
she actively resisted them. When taken to the police station, she
refused to comply with their reasonable demands and even kicked
one officer. She was charged with Aggravated Assault, Simple
Assault, Harassment, Resisting Arrest, and two counts of
Disorderly Conduct.
On June 29, 2016, [the trial court] entered an Order granting a
Petition for Involuntary commitment due to incompetence, not to
exceed 60 days. On September 27, 2016, [the trial court] ordered
that [Appellant] be re-examined to determine if she was
competent to stand trial. On September 30, 2016, Jeffrey M.
Lazaroff, Ph.D. conducted a psychological competency
examination and concluded that she was competent.
The Commonwealth extended a plea bargain offer to [Appellant’s]
court-appointed counsel but, against his recommendation, she
rejected it and opted instead to go to trial.[2] On December 14,
2016, [the trial court] conducted a bench trial, at which the
Commonwealth withdrew the disorderly conduct offenses. After
hearing evidence and arguments of counsel, [the trial court] found
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2 Appellant was originally represented by court-appointed counsel, Nusrat
Rashid, Esquire. However, Appellant later retained Anthony List, Esquire, as
private counsel, who entered his appearance on November 20, 2016.
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[Appellant] guilty of the four remaining charges. On February 28,
201[7], [the trial court] imposed sentences on all four counts.[3]
PCRA Court Opinion, 11/13/18, at 1-2 (unpaginated) (original footnote
omitted)
On August 14, 2017, Appellant filed a pro se PCRA petition, in which she
alleged that trial counsel, Anthony List, Esquire, was ineffective. The PCRA
court appointed Counsel, who filed two amended petitions on April 10, 2018
and May 7, 2018 raising additional claims. The Commonwealth filed a
response on May 30, 2018. The PCRA court held a hearing on Appellant’s
petition on June 27, 2018, at the conclusion of which the court orally denied
Appellant’s request for relief. On August 15, 2018, the PCRA court issued an
order formally denying Appellant’s petition for post-conviction relief. This
timely appeal followed.
On January 8, 2019, Counsel filed a petition to withdraw with this Court,
attaching his no-merit letter, with notice to Appellant that she had the right
to proceed pro se or retain private counsel. Appellant filed a pro se response
to Counsel’s no-merit letter indicating that she wished to continue with her
appeal pro se; Appellant’s response did not raise any additional issues for our
review and consideration.
Appellant presents one issue for our review:
I. WAS THE [PCRA] COURT IN ERROR FOR DISMISSING
APPELLANT’S PETITION FOR POST CONVICTION RELIEF
ALLEGING THAT TRIAL COUNSEL WAS INEFFECTIVE IN
____________________________________________
3 The trial court sentenced Appellant to an aggregate 21 to 42 months of
incarceration, followed by one year of probation.
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FAILING TO MAKE A TIMELY REQUEST AS TO A VIDEO THAT
EXISTED FROM A WAWA FOOD MARKET AS WELL AS THE
RIDLEY TOWNSHIP POLICE DEPARTMENT?
Anders Brief at 4.
In reviewing the denial of a PCRA petition, our review is limited to
examining whether the PCRA court’s findings are supported by the record and
free of legal error. See Commonwealth v. Hanible, 30 A.3d 426, 438 (Pa.
2011). We view the findings of the PCRA court and the evidence of record in
the light most favorable to the prevailing party. Id. “The PCRA court’s
credibility determinations, when supported by the record, are binding on this
Court; however, we apply a de novo standard of review to the PCRA court’s
legal conclusions.” See Commonwealth v. Mason, 130 A.3d 601, 617 (Pa.
2015).
As noted, Counsel has filed in this Court a petition for leave to withdraw
as counsel and an appellate brief. Before we may review the merits of
Appellant’s claim, we must determine if Counsel has satisfied the requirements
to be permitted to withdraw from further representation. Pursuant to
Turner/Finley, an “[i]ndependent review of the record by competent counsel
is required before withdrawal [on collateral appeal] is permitted.”
Commonwealth v. Pitts, 981 A.2d 875, 876 n.1 (Pa. 2009). In Pitts, our
Supreme Court explained that such independent review requires proof of:
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;
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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. (citation and brackets omitted). Further, PCRA counsel seeking to
withdraw in this Court must contemporaneously forward to the petitioner a
copy of the petition to withdraw that includes (i) a copy of both the no-merit
letter, and (ii) a statement advising the PCRA petitioner that, upon the filing
of counsel’s petition to withdraw, the petitioner has the immediate right to
proceed pro se, or with the assistance of privately retained counsel.
Commonwealth v. Muzzy, 141 A.3d 509, 511-12 (Pa. Super. 2016).
[W]here counsel submits a petition and no-merit letter that do
satisfy the technical demands of Turner/Finley, . . . this Court[
] must then conduct its own review of the merits of the case. If
the [C]ourt agrees with counsel that the claims are without merit,
the [C]ourt will permit counsel to withdraw and deny relief. By
contrast, if the claims appear to have merit, the [C]ourt will deny
counsel’s request and grant relief, or at least instruct counsel to
file an advocate’s brief.
Commonwealth v. Wrecks, 931 A.2d 717, 721 (Pa. Super. 2007) (citation
omitted).
Upon review of Counsel’s petition for leave to withdraw and the appellate
brief submitted on Appellant’s behalf, we conclude that Counsel has
substantially complied with the procedural requirements of Turner and
Finley, as restated in Pitts. Counsel identified the claim asserted by
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Appellant, reviewed the merits of that claim and explained why the claim lacks
merit. Finally, Counsel also represented to this Court that he has provided
Appellant with notice of his intention to seek permission to withdraw from
representation, a copy of the appellate brief, and advised Appellant she may
proceed with privately retained counsel or pro se. See Application to
Withdraw Appearance, 1/8/19. Thus, we conclude that Counsel has complied
with the requirements necessary to withdraw as counsel. We now turn to an
independent review of Appellant’s PCRA petition to ascertain whether her
claim entitles her to relief.
Appellant’s issue, as raised by Counsel in his no-merit brief, asserts that
the PCRA court erred in denying Appellant’s PCRA petition because trial
counsel was ineffective for failing to make timely requests and obtain video
footage of the incidents at the Wawa convenience store and at the Ridley
Township Police Department.
In deciding ineffective assistance of counsel claims, we begin with the
presumption that counsel rendered effective assistance. Commonwealth v.
Bomar, 104 A.3d 1179, 1188 (Pa. 2014). To overcome that presumption,
the petitioner must establish: “(1) the underlying claim has arguable merit;
(2) no reasonable basis existed for counsel’s action or failure to act; and (3)
the petitioner suffered prejudice as a result of counsel’s error, with prejudice
measured by whether there is a reasonable probability that the result of the
proceeding would have been different.” Id. (citation omitted).
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Regarding whether counsel had a reasonable basis for his or her action
or inaction, “we do not question whether there were other more logical courses
of action which counsel could have pursued; rather, we must examine whether
counsel’s decisions had any reasonable basis.” Commonwealth v.
Washington, 927 A.2d 586, 594 (Pa. 2007). We will conclude that counsel’s
chosen strategy lacked a reasonable basis only if Appellant proves that “an
alternative not chosen offered a potential for success substantially greater
than the course actually pursued.” Commonwealth v. Williams, 899 A.2d
1060, 1064 (Pa. 2006) (citation omitted). To demonstrate prejudice in an
ineffective assistance of counsel claim, “the petitioner must show that there
is a reasonable probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different.” Commonwealth v.
King, 57 A.3d 607, 613 (Pa. 2012). If the petitioner fails to prove any of the
three prongs, the claim is subject to dismissal. Bomar, 104 A.3d at 1188.
Appellant alleges trial counsel ineffectiveness for failing to request and
obtain video footage of the incidents that gave rise to the criminal charges
filed against her. See Amended Petition for Post Conviction Relief, 5/7/18, at
¶ 4-6. Appellant surmises that “[Attorney] List knew that there was video
taken by cameras, both within the Wawa as well as the Ridley Township Police
Department but did not take any steps to procure said videos and examine
same.” Id. at ¶ 6.
Appellant’s argument lacks arguable merit. As the PCRA court
recognized, “[Appellant’s] argument fails because she has not located any
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video footage. She cannot, therefore, be heard to say that it would have been
of assistance to her case at trial.” PCRA Court Opinion, 11/13/18, at 6
(unpaginated). Counsel testified at the PCRA court hearing that he attempted
to obtain videos of the incidents, but learned that no videos existed. See
N.T., 6/27/18, at 11, 30. Appellant likewise testified during the PCRA hearing
that she was aware Counsel attempted to obtain the videos, but was told no
videos existed. Id. at 38-39. Because video footage of the incidents do not
exist, Counsel cannot be found to be ineffective for failing to obtain them.
Further, even if the video footage did exist, Counsel had a reasonable
basis for not obtaining it. The incident giving rise to Appellant’s convictions
occurred on March 22, 2016. In response to the request for video surveillance
footage, Wawa indicated that its store surveillance automatically recycles
every 52 days. See Commonwealth’s Response to Defendant’s Amended
POST-Conviction Relief-Act Petition, 5/30/18, at Ex. 3. Similarly, the Ridley
Township Police Department explained that video footage taken at the station
is erased every 30 days. Id. at Ex. 2. Appellant retained Counsel on
November 20, 2016, several months after the 30-day and 52-day periods
when video surveillance is erased at the Ridley Township Police Department
and Wawa, respectively.
For these reasons, the PCRA court properly denied Appellant’s PCRA
petition.
Petition to withdraw granted. Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/21/19
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