Com. v. Serrano, A.

J-S43007-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ANTONIO JUNIOR SERRANO :
:
Appellant : No. 949 EDA 2022
Appeal from the PCRA Order Entered March 7, 2022
In the Court of Common Pleas of Lehigh County Criminal Division at
No(s): CP-39-CR-0003675-2018
BEFORE: DUBOW, J., KUNSELMAN, J., and NICHOLS, J.
MEMORANDUM BY DUBOW, J.: FILED MARCH 20, 2023
Appellant, Antonio Junior Serrano, appeals pro se from the March 7,
2022 order dismissing his first petition filed pursuant to the Post Conviction
Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-46. After careful review, we affirm.
On July 20, 2020, the trial court sentenced Appellant to 15 to 30 years’
incarceration after a jury convicted him of Rape, Aggravated Indecent Assault,
Indecent Assault, and Terroristic Threats related to acts he perpetrated
against his aunt. On August 6, 2021, this Court affirmed Appellant’s judgment
of sentence. Commonwealth v. Serrano, 262 A.3d 472, 2021 WL 3465961(Pa. Super. filed Aug. 6, 2021) (non-precedential decision). Appellant failed
to perfect an appeal to the Pennsylvania Supreme Court.1
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1On September 21, 2021, Appellant filed an untimely petition for review with
our Supreme Court. On October 4, 2021, the Court administratively closed the
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On September 20, 2021, Appellant pro se filed the instant PCRA Petition,
his first. On December 9, 2021, the PCRA court appointed counsel. On January
4, 2022, counsel filed a Turner/Finley2 no merit letter and petition to
withdraw as counsel.
On February 2, 2022, the PCRA court granted counsel’s request to
withdraw. On February 15, 2022, the court issued notice to Appellant of its
intent to dismiss his petition without a hearing pursuant to Pa.R.Crim.P. 907.
On March 7, 2022, the PCRA court dismissed Appellant’s petition.3
Appellant timely filed a Notice of Appeal and both he and the PCRA court
complied with Pa.R.A.P. 1925. In his brief, Appellant raises a litany of issues
for our review, which we organize as follows:
1. Was PCRA counsel ineffective for not raising trial counsel’s
ineffectiveness, for failing to:
A. Challenge the admission of prior bad acts evidence at
Appellant’s trial?
B. Introduce exculpatory DNA evidence?
C. Preserve and raise a challenge to the weight of the
evidence?
2. Did the PCRA court err by permitting counsel to withdraw based
on an insufficient Turner/Finley letter?
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appeal. Then, on October 12, 2021, Appellant filed a request for nunc pro tunc
relief in the Supreme Court. The Court again administratively closed the
appeal.
2Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), Commonwealth v.
Finley, 550 A.2d 213 (Pa. Super. 1988).
3As discussed infra, Appellant filed an untimely response to the court’s Rule
907 notice.
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3. Did the PCRA court err by conducting an insufficient review of
the record before dismissing Appellant’s petition?
See Appellant’s Br. at 4, 10-32.4
A.
We review the denial of a PCRA Petition to determine whether the record
supports the PCRA court’s findings and whether its order is otherwise free of
legal error. Commonwealth v. Fears, 86 A.3d 795, 803 (Pa. 2014). This
Court grants great deference to the findings of the PCRA court if the record
supports them. Commonwealth v. Boyd, 923 A.2d 513, 515 (Pa. Super.
2007). We give no such deference, however, to the court’s legal conclusions.
Commonwealth v. Mullen, 267 A.3d 507, 511 (Pa. Super. 2021).
Additionally, an appellant must “support [his] claims with pertinent
discussion, with references to the record and with citation to legal authorities.”
Commonwealth v. Hardy, 918 A.2d 766, 771 (Pa. Super. 2007). We “will
not act as counsel and will not develop arguments on behalf of an appellant.”
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4 Appellant also complains that because the Department of Corrections
(“DOC”) mail procedures require the use of Smart Communications, he
received the PCRA court’s Rule 907 notice late and he could not file his
response until March 8, 2022, which was the day after the court dismissed his
petition. Appellant’s Br. at 11, 17-18. In his Rule 907 response, Appellant
requested solely that the PCRA court appoint him new counsel or allow him
“to go pro se with a stand by lawyer[.]” Letter response, 3/8/22, at 1-2
(unpaginated). As this Court has recognized, Pennsylvania law “forbids
appointment of new counsel where a proper Turner[]/Finley no-merit letter
has been accepted and counsel was permitted to withdraw.” Commonwealth
v. Williams, 204 A.3d 489, 493 (Pa. Super. 2019) (citation omitted). Thus,
even if the court has timely received Appellant’s response, it would not have
changed the court’s disposition.
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Id. Where briefing defects “impede our ability to conduct meaningful appellate
review, we may dismiss the appeal entirely or find certain issues to be
waived.” Id. See also Pa.R.A.P. 2101. Appellant’s pro se status does not
relieve him of the obligation to comply with this Court’s briefing rules.
Commonwealth v. Blakeney, 108 A.3d 739, 766 (Pa. 2014).
B.
Appellant’s issue contains multiple allegations of layered ineffectiveness
of PCRA and trial counsel. Appellant’s Br. at 20-33. The law presumes that
counsel has rendered effective assistance. Commonwealth v. Rivera, 10
A.3d 1276, 1279 (Pa. Super. 2010). “[T]he burden of demonstrating
ineffectiveness rests on [A]ppellant.” Id. To satisfy this burden, Appellant
must plead and prove by a preponderance of the evidence that: “(1) his
underlying claim is of arguable merit; (2) the particular course of conduct
pursued by counsel did not have some reasonable basis designed to effectuate
his interests; and, (3) but for counsel’s ineffectiveness, there is a reasonable
probability that the outcome of the challenged proceeding would have been
different.” Commonwealth v. Fulton, 830 A.2d 567, 572 (Pa. 2003).
To prevail on a layered ineffectiveness claim, Appellant must satisfy
each element of the test “as to each layer of allegedly ineffective counsel[.]”
Commonwealth v. Dennis, 17 A.3d 297, 302 (Pa. 2011). Where an
appellant fails to meaningfully discuss and apply each of the three prongs of
the ineffectiveness test, we will deny relief. Commonwealth v. Reid, 259
A.3d 395, 405 (Pa. 2021).
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Unfortunately, Appellant’s claims are universally underdeveloped. He
does not address any of the three prongs of the ineffectiveness test with
respect to trial or PCRA counsels’ stewardship. Additionally, the argument
section of Appellant’s brief is devoid of citation to the notes of testimony and
includes only two citations to the certified record. In short, despite presenting
three allegations of layered ineffectiveness across thirteen pages of argument,
Appellant has failed to develop his argument sufficiently and through the lens
of the well-established test for ineffective assistance of counsel. We, thus,
deny relief.
C.
In his second issue, Appellant alleges that the PCRA court erred by
permitting PCRA counsel to withdraw from representation based on a deficient
Turner/Finley letter. Appellant’s Br. at 13. He alleges that “a fair reading of
[his] defective [pro se petition] reveals that he wished to raise issues
concerning challenges to the collection [and] admissibility of DNA evidence.”
Id. at 14. In essence, Appellant alleges that counsel failed to satisfy the
dictates of Turner/Finley by not addressing this issue and, therefore, the
court erred by permitting counsel to withdraw.
As is relevant to this case, to be permitted to withdraw, counsel’s
Turner/Finley letter must, inter alia, list each issue the petitioner wished to
have reviewed and explain why the petitioner’s issues are meritless.
Commonwealth v. Muzzy, 141 A.3d 509, 511 (Pa. Super. 2016).
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A review of Appellant’s pro se PCRA Petition and counsel’s
Turner/Finley letter proves that counsel complied with Turner/Finley and,
therefore, Appellant’s claim is without merit. In his pro se petition, Appellant
argued that the Commonwealth obtained his DNA through “entrapment.”
PCRA Petition, 9/20/21, at 3. Counsel addressed this allegation in his
Turner/Finley letter, explaining that an entrapment defense provided “no
support” in Appellant’s case because the record is devoid of proof that a law
enforcement officer induced Appellant to engage in criminal conduct.5 Motion
to Withdraw, 1/4/22, at Ex. A, pg. 3 (unpaginated). Moreover, counsel
explained that “a sample of your bodily tissue was obtained through the use
of a motion to compel DNA extraction[ based on probable cause provided by]
your [aunt’s] statements that you sexually assaulted her and the forensic
examination of her body following her disclosure of [the] abuse.” Id.Since counsel complied with the dictates of Turner/Finley by
addressing the issue Appellant wished to have reviewed, it was within the
PCRA court’s discretion to permit counsel to withdraw. We discern no abuse
of that discretion.
D.
In his final issue, Appellant argues that the PCRA court erred by
dismissing his petition without a hearing. Appellant’s Br. at 16-17. Appellant
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5 See 18 Pa.C.S. § 313(a) (“[a] public law enforcement official [commits]
entrapment if for the purpose of obtaining evidence of the commission of an
offense, he induces or encourages another person to engage in conducting
constitution such offense[.]”
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does not, however, explain why a hearing was necessary.6 Instead, he makes
a generalized statement about “meritorious issues” and “cumulative” error:
In this case, [Appellant] was deprived of a hearing on meritorious
issues concerning the cumulative effect of trial counsel and
appellate counsel’s errors, because the PCRA court failed to
independently evaluate the [record].
Appellant’s Br. at 17.
Appellant does not elaborate on what “meritorious issues” he raised, or
what “cumulative” error counsel committed. As a result of Appellant’s failure
to adequately develop this issue, it is waived.7
Considering the above, we affirm the PCRA court’s order dismissing
Appellant’s petition without a hearing.
Order affirmed.
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6 A petitioner is not entitled to a PCRA hearing, and a PCRA court has the
discretion to dismiss a petition without a hearing when it is satisfied “that
there are no genuine issues concerning any material fact, the defendant is not
entitled to post-conviction relief, and no legitimate purpose would be served
by any further proceedings.” Pa.R.Crim.P. 907(1).
7 Moreover, Appellant’s claim is without merit. As the PCRA court’s opinion
indicates, and our review of the record confirms, the PCRA court adequately
considered each issue Appellant raised before dismissing his petition. See
PCRA Petition at 3; PCRA Ct. Op., 2/15/22, at 1 n.1. We discern no abuse of
the PCRA court’s discretion in doing so.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/20/2023
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