Com. v. Holmes, J.

J-S02027-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JAMES F. HOLMES :
:
Appellant : No. 441 MDA 2022
Appeal from the PCRA Order Entered February 18, 2022
In the Court of Common Pleas of Lycoming County Criminal Division at
No(s): CP-41-CR-0002155-2015
BEFORE: PANELLA, P.J., OLSON, J., and DUBOW, J.
MEMORANDUM BY OLSON, J.: FILED MAY 8, 2023
Appellant, James F. Holmes, appeals pro se from the February 17, 2022
order dismissing his petition filed pursuant to the Post Conviction Relief Act
(“PCRA”), 42 Pa.C.S.A. §§ 9541–9546. We affirm.
A panel of this Court previously summarized the relevant facts of this
case as follows:
Following his arrest, Appellant, who was represented by
counsel, proceeded to a jury trial on June 1, 2017. At trial, M.H.
testified [that in November and December 2014, she posted
photos of her infant daughter, who was born in November 2014,
on Facebook]. M.H. indicated that, on December 13, 2014, she
began having a conversation on Facebook with a person who
identified himself as “Craig Jones.” The parties stipulated at
trial that “Craig Jones” was actually Appellant. M.H. testified
that she later permitted the Pennsylvania State Police to access
her Facebook account and download the messages.
At trial, M.H. read the messages into evidence. The transcript
contains numerous references to obscene messages from
Appellant relating to inappropriate sexual contacts with a baby.
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***
[In addition,] M.H. testified that, at some point in 2015, after
making plans to meet Appellant, who believed M.H. was going
to bring her [infant] daughter, M.H. traveled on a bus with law
enforcement officers. Upon arrival at the bus station where she
was supposed to meet Appellant, M.H. watched as the police
arrested Appellant.
***
[Similarly,] Pennsylvania State Police Corporal Jeffrey Vilello,
who has been in law enforcement for [21] years and is certified
to conduct interceptions/electronic surveillance, testified that,
in December [] 2014, he interviewed M.H. in connection with
an investigation unrelated to the instant case. Thereafter, in
early November [] 2015, M.H. showed Corporal Vilello her
Facebook communications, which M.H. had with “Craig Jones”
in December [] 2014. Believing “Craig Jones” was soliciting
sexual activity with children, Corporal Vilello asked M.H. to work
as an informant and assist the State Police in identifying “Craig
Jones.” M.H. agreed.
Corporal Vilello indicated that, posing as M.H., he began
communicating with “Craig Jones” (later identified as Appellant)
via Facebook. Also, “[M.H.'s] phone was . . . used under [the
corporal's] direction and use[d] to communicate with the
individual who was portraying himself through Facebook as
Craig Jones.” Specifically, Corporal Vilello testified that, on
November 4, 5, and 6, 2015, posing as M.H., he used M.H.'s
[cellular telephone] to communicate with Appellant via text. He
noted the police computer unit extracted the text messages
from M.H.'s [cellular telephone] and saved them.
***
[Specifically, Corporal] Vilello testified that, posing as M.H., he
communicated with Appellant via text for approximately a
month, and at some point, they made arrangements for M.H.,
as well as her [infant] daughter, to travel by bus to visit
Appellant. [Corporal] Vilello indicated Appellant “was pretty
insistent that [M.H.] bring the child.” Also, in a telephone
conversation between Appellant and M.H. regarding the
upcoming visit, Appellant asked M.H. if he could adopt M.H.'s
daughter if M.H. decided not to live with Appellant.
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[Corporal] Vilello testified that he accompanied M.H., who
carried a doll that looked like a baby, on the bus to visit
Appellant on December 4, 2015. [Corporal Vilello] indicated
that, after M.H. exited the bus, Appellant approached, grabbed
her by the arm, and said, “let's go [M.H.].”
At this point, Appellant was arrested, and his iPhone 4, which
contained the messages indicated supra, was seized from his
person. [Corporal] Vilello noted that, during the bus ride,
posing as M.H., he sent messages to Appellant, and the last
message he had sent was “pictured on [Appellant's] iPhone 4.”
He testified the police executed a search warrant on Appellant's
iPhone 4 and extracted the communication, including text
messages and photographs, between Appellant and M.H.'s
phone. [Corporal] Vilello noted that, during the Facebook
communication and text messages, Appellant never revealed
his true identity and, when asked, he refused to send a picture
of himself.
Commonwealth v. Holmes, 2019 WL 3205784, at *1–4 (Pa. Super. July 16,
2019) (internal citations and footnotes omitted).
Ultimately, the jury convicted Appellant of six counts of criminal
solicitation (to commit involuntary deviate sexual intercourse with a child,
sexual assault, sexual exploitation of children, aggravated indecent assault on
a child, sexual abuse of children, and indecent assault on a person less than
13 years of age), one count of trafficking in minors, and one count of criminal
use of a communication facility. Id. at *1. Appellant was sentenced to an
aggregate term of 13 to 26 years’ imprisonment, followed by one year
probation. Id. at n.4. Appellant filed a timely, counseled post-sentence
motion, which was denied by operation of law. Id. at *4. This Court affirmed
Appellant’s judgment of sentence on July 16, 2019. Id. at *12. On February
12, 2020, our Supreme Court denied Appellant’s petition for allowance to
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appeal. Commonwealth v. Holmes, 224 A.3d 1266 (Pa. 2020). Therefore,
Appellant’s judgment of sentence became final on May 12, 2020. See 42
Pa.C.S.A. § 9545(b)(3) (stating, “[a] judgment becomes final at the
conclusion of direct review, including discretionary review in the Supreme
Court of the United States and the Supreme Court of Pennsylvania, or at the
expiration of the time for seeking a review”); see also U.S. Sup. Ct. R. 13(1)
(stating, “[a] petition for a writ of certiorari seeking review of a judgment of
a lower state court that is subject to discretionary review by the state court of
last resort is timely when it is filed with the Clerk within 90 days after entry
of the order denying discretionary review”); see also 42 Pa.C.S.A.
§ 9545(b)(3).
On June 15, 2020, Appellant filed a pro se petition for habeas corpus
relief, which was treated as a PCRA petition. See PCRA Court Opinion and
Order, 2/17/22, at 6. On June 22, 2022, the PCRA court appointed counsel
but, because “that attorney later terminated his PCRA contract with Lycoming
County,” the PCRA court subsequently appointed Trisha Hoover Jasper, Esq.,
as Appellant’s new PCRA counsel. Id.; see also PCRA Court Order, 8/26/20,
at 1.
On October 20, 2020, Appellant, through counsel, sought leave to
withdraw the June 15, 2020 petition. On October 29, 2020, Appellant “was
granted leave to withdraw his petition in order to later ‘file a more
comprehensive PCRA that raise[d] all of his issues.’” PCRA Court Opinion and
Order, 2/17/22, at 6. Appellant filed a subsequent pro se PCRA petition on
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February 16, 2021. On February 24, 2021, the PCRA Court again appointed
Attorney Jasper to serve as Appellant’s PCRA counsel. On July 9, 2021,
however, Attorney Jasper filed a motion to withdraw, as well as a
Turner/Finley “no merit” letter.1 Appellant filed a pro se response on
December 29, 2021.2
On January 6, 2022, the PCRA court held a hearing on Appellant’s
petition, as well as Attorney Jasper’s Turner/Finley letter. At the hearing,
Attorney Jasper conveyed her opinion regarding the merits of Appellant’s
claims and Appellant offered argument in support of his petition. On February
17, 2022, the PCRA court entered an order granting Attorney Jasper leave to
withdraw and denying Appellant’s petition. PCRA Court Opinion and Order,
2/17/22, at 1-40. This appeal followed.3
Appellant raises the following issues on appeal:
1. Did the PCRA [c]ourt err in finding “no merit” to the claim of
actual innocence?
____________________________________________
1See Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); see also
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1998).
2 Appellant entitled his response “Oral Brief in Response to No Merit Claim.”
3 Appellant filed his notice of appeal on March 14, 2022. On March 21, 2022,
the trial court ordered Appellant to file a concise statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(b). Appellant timely
complied. The trial court issued an opinion pursuant to Pa.R.A.P. 1925(a) on
May 3, 2022. All issues raised on appeal were included in Appellant’s concise
statement.
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2. Did the PCRA [c]ourt err in finding “no merit” to the claim
that the arrest warrant affidavit contained material
omission[s] that denied the determinat[ion] of due process?
3. Did the PCRA [c]ourt err in finding “no merit” to the claim
that [] Appellant was unlawfully arrested and his iPhone[] 4
[was] illegally seized?
4. Did the PCRA [c]ourt err in finding “no merit” [to Appellant’s]
claim that the trial court denied [] Appellant [his] right to
counsel?
5. Did the PCRA [c]ourt err in finding “no merit” [to Appellant’s]
claim that the venue for the charges and trial took place in
an unlawful jurisdiction and was unconstitutional?
6. Did the PCRA [c]ourt err in finding “no merit” [to Appellant’s]
claim that [trial] counsel was ineffective during the pretrial
and trial phases of the judicial process?
7. Did the PCRA [c]ourt err in finding “no merit” [to Appellant’s]
claim that direct appeal counsel was ineffective?
8. Did the PCRA [c]ourt err in finding “no merit” to the claim
that PCRA counsel was ineffective and the court erred in
[failing to] appoint substitute counsel after this claim was
filed?
Appellant’s Brief at 2.4
Our standard of review for challenges to the denial and dismissal of
petitions filed pursuant to the PCRA is well-settled.
We must determine whether the findings of the PCRA court are
supported by the record and whether the court's legal
conclusions are free from error. The findings of the PCRA court
and the evidence of record are viewed in a light most favorable
to the prevailing party. The PCRA court's credibility
determinations, when supported by the record, are binding;
however, this [C]ourt applies a de novo standard of review to
the PCRA court's legal conclusions. We must keep in mind that
the petitioner has the burden of persuading this Court that the
____________________________________________
4 We have reordered Appellant’s issues for ease of discussion and disposition.
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PCRA court erred and that such error requires relief. Finally,
this Court may affirm a valid judgment or order for any reason
appearing of record.
Commonwealth v. Montalvo, 205 A.3d 274, 286 (Pa. 2019) (citations
omitted).
Moreover,
[t]o be entitled to PCRA relief, [an] appellant must establish, by
a preponderance of the evidence, his conviction or sentence
resulted from one or more of the enumerated errors in 42
Pa.C.S.[A.] § 9543(a)(2). These errors include a constitutional
violation or ineffectiveness of counsel, which “so undermined
the truth-determining process that no reliable adjudication of
guilt or innocence could have taken place.” Id. Additionally,
[an] appellant must show his claims have not been previously
litigated or waived, and “the failure to litigate the issue prior to
or during trial ... or on direct appeal could not have been the
result of any rational strategic or tactical decision by counsel.”
42 Pa.C.S.[A.] § 9543(a)(3), (a)(4). An issue is previously
litigated if “the highest appellate court in which [appellant]
could have had review as a matter of right has ruled on the
merits of the issue.” 42 Pa.C.S.[A.] § 9544(a)(2). An issue is
waived if appellant “could have raised it but failed to do so
before trial, at trial, . . . on appeal or in a prior state
postconviction proceeding.” 42 Pa.C.S.[A.] § 9544(b).
Commonwealth v. Cousar, 154 A.3d 287, 296 (Pa. 2017) (some citation
omitted).
Preliminarily, we observe that Appellant's first five issues are either
previously litigated or waived. Indeed, in his first issue, Appellant claims the
PCRA court erroneously found “’no merit’ to [his] claim of actual innocence.”
Appellant’s Brief at 8. In support of this claim, Appellant contends that, prior
to his arrest, he “renounce[d]. . . the solicitations” by “agree[ing] with M.H.
that she did not need to bring her child when they met.” Id. This fact-based
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claim is not raised within the context of a challenge to trial counsel’s
effectiveness and, thus, could have been litigated on direct appeal. Similarly,
in Appellant’s second and third appellate issues, Appellant sets forth
freestanding contentions regarding the affidavit of probable cause for his
arrest warrant, his arrest, and the subsequent search of his cellular telephone.
Again, neither argument is paired to a claim alleging ineffective assistance of
trial counsel and they, too, could have been raised on direct appeal. Lastly,
Appellant’s fourth and fifth issues raise issues of trial court error. Because
each of these issues could have been raised on Appellant’s direct appeal,
Appellant’s first five issues are waived. See Commonwealth v.
Reyes-Rodriguez, 111 A.3d 775, 780 (Pa. Super. 2015) (en banc) (“At the
PCRA stage, claims of trial court error are either previously litigated (if raised
on direct appeal) or waived (if not).”)
Appellant's remaining claims generally involve allegations of the
ineffective assistance of counsel. “[C]ounsel is presumed effective, and [the
appellant] bears the burden of proving otherwise.” Commonwealth v.
Fears, 86 A.3d 795, 804 (Pa. 2014), quoting Commonwealth v. Steele, 961
A.2d 786, 796 (Pa. 2008). To prevail on an ineffectiveness claim, an appellant
must establish:
(1) the underlying claim has arguable merit; (2) no reasonable
basis existed for counsel's actions or failure to act; and (3)
[appellant] suffered prejudice as a result of counsel's error such
that there is a reasonable probability that the result of the
proceeding would have been different absent such error.
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Commonwealth v. Lesko, 15 A.3d 345, 373–374 (Pa. 2011), citing
Commonwealth v. Pierce, 527 A.2d 973, 975 (Pa. 1987). Failure to meet
any prong of the test will defeat an ineffectiveness claim. Commonwealth
v. Rainey, 928 A.2d 215, 224–225 (Pa. 2007). Counsel cannot be deemed
ineffective for failure to assert a baseless claim. Commonwealth v. Payne,
794 A.2d 902, 906 (Pa. Super. 2002).
Furthermore, to demonstrate prejudice, Appellant must show there is a
reasonable probability that, but for counsel's error, the outcome of the
proceeding would have been different. Commonwealth v. Spotz, 870 A.2d
822, 833–834 (Pa. 2005). When it is clear that a petitioner's ineffective
assistance claim has failed to meet the prejudice prong of the ineffectiveness
test, the claim may be dismissed on that basis alone, without a determination
of whether the first two prongs have been met. Rainey, 928 A.2d at 224-225;
Commonwealth v. Albrecht, 720 A.2d 693, 701 (Pa. 1998) (“If it is clear
that [the a]ppellant has not demonstrated that counsel's act or omission
adversely affected the outcome of the proceedings, the claim may be
dismissed on that basis alone and the court need not first determine whether
the first and second prongs have been met.”).
In his sixth issue, Appellant alleges that trial counsel, Michael Morrone,
Esq., provided ineffective assistance, citing several facets of counsel’s
supposedly deficient performance. First, Appellant argues Attorney Morrone
failed to “present[] defenses of renunciation, entrapment and outrageous
police conduct.” Appellant’s Brief at 19. Next, Appellant argues that Attorney
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Morrone was ineffective for failing to object to the violation of his Sixth
Amendment right to counsel when (1) a “deputy sheriff . . . accompan[ied]
counsel and [Appellant] in the judge’s chambers” during a conference at trial
and because (2) he “never stipulated to the suppression of certain messages
from Facebook and [] texts in open court[,] without a jury present.” Id. at
19-20. Moreover, Appellant challenges Attorney Morrone’s decision to allow
Corporal Vilello “to testify out of court unchallenged,” his attempt “to bring
forth a prohibited witness to prove [] Appellant did not abuse his son,” and
his failure “to refer to the actual . . . text[] message, message 17, that []
establish[ed that] Appellant did not abuse his son.” Id. at 20. Finally,
Appellant argues that Attorney Morrone “appeared to be confused, distracted,
or disoriented [during trial] because his questioning of witnesses was rarely
concise and the trial judge required clarification on numerous occasions.” Id.
We will address Appellant’s claims in turn.
First, we address Appellant’s claim regarding trial counsel’s failure to
present a renunciation defense. In particular, Appellant argues Attorney
Morrone “was aware or should have been aware of the material facts
supporting” Appellant’s alleged renouncement but failed to “establish a claim
of renunciation nor did he seek jury instructions regarding that defense.”
Appellant’s Brief at 17. In support of his claim of renouncement, Appellant
argues, essentially, that he lacked specific intent because he believed M.H.’s
child “was fake.” Id. at 18. Upon review, we conclude Appellant’s claim lacks
merit.
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The Crimes Code defines the defense of renouncement, in relevant part,
as follows:
(c) Renunciation.--
(1) In any prosecution for an attempt to commit a crime, it is a
defense that, under circumstances manifesting a voluntary and
complete renunciation of his criminal intent, the defendant
avoided the commission of the crime attempted by abandoning
his criminal effort and, if the mere abandonment was
insufficient to accomplish such avoidance, by taking further and
affirmative steps which prevented the commission thereof.
18 Pa. C.S.A. § 901(c)(1). Put simply, renunciation “requires a showing that
the defendant avoided the commission of the crime attempted by abandoning
his criminal effort.” Commonwealth v. Zingarelli, 839 A.2d 1064, 1072
(Pa. Super. 2003).
As explained by the PCRA court, the Commonwealth presented
Facebook messages between Appellant and M.H. indicting that Appellant “did
in fact know that [M.H.] had a baby.” PCRA Order and Opinion, 2/17/22, at
11. Specifically, the PCRA court pointed to evidence that Appellant “ask[ed]
how the baby [was] doing,” made obscene comments regarding M.H.’s baby,
and “insist[ed M.H.] bring the baby with her to meet him.” Id. Further, as
indicated by this Court on Appellant’s direct appeal, in various text messages
between Appellant and M.H., “Appellant asked M.H. to come and visit him,
and he insisted [M.H.] bring her infant daughter.” Holmes, 2019 WL 3205784
at *9. Hence, contrary to Appellant’s claim, there was ample record evidence
that Appellant did, in fact, believe that M.H.’s child was real, that Appellant
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demanded M.H. bring her infant child to visit him, and that Appellant met M.H.
as previously agreed prior to his arrest, all of which refute Appellant’s claims
of renouncement. Attorney Morrone was not ineffective in failing to raise a
meritless defense and, as such, Appellant’s claim fails. See Payne, 794 A.2d
at 906 (explaining that counsel cannot be found ineffective for failure to assert
a baseless claim).
In this same vein, Appellant argues Attorney Morrone “could have used
[] Facebook and [] text messages to establish that both [M.H.] . . . and
[Corporal] Vilello made initial and unprovoked solicitations” amounting to
entrapment. Appellant’s Brief at 18. Again, Appellant’s claim lacks merit.
On Appellant’s previous appeal, this Court summarized the law
regarding entrapment, as well as the facts and evidence relevant to
Appellant’s entrapment defense as follows:
The Crimes Code defines the defense of entrapment, in relevant
part, as follows:
§ 313. Entrapment
(a) General rule.—A public law enforcement official or a
person acting in cooperation with such an official
perpetrates an entrapment if for the purpose of obtaining
evidence of the commission of an offense, he induces or
encourages another person to engage in conduct
constituting such offense by either:
(1) making knowingly false representations designed
to induce the belief that such conduct is not
prohibited; or
(2) employing methods of persuasion or inducement
which create a substantial risk that such an offense
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will be committed by persons other than those who
are ready to commit it.
(b) Burden of proof.—Except as provided in subsection
(c) of this section, a person prosecuted for an offense shall
be acquitted if he proves by a preponderance of evidence
that his conduct occurred in response to an entrapment.
18 Pa.C.S.A. § 313(a)-(b) (footnote [omitted]).
Pennsylvania courts apply an objective test for entrapment:
[T]he test for entrapment has shifted in emphasis from a
consideration of a particular defendant's readiness to
commit crime, a subjective test, to an evaluation of the
police conduct, an objective test, to determine whether
there is a substantial risk that the offense will be
committed by those innocently disposed. To determine
whether an entrapment has been perpetrated in any
particular case, therefore, the inquiry will focus on the
conduct of the police and will not be concerned with the
defendant's prior criminal activity or other indicia of a
predisposition to commit crime.
Commonwealth v. Marion, 981 A.2d 230, 238 (Pa. Super.
2009) (quotation and citation omitted).
As we have explained:
[T]he objective approach conceives the entrapment
defense as aimed at deterring police wrongdoing. The
defense provides a sanction for overzealous and
reprehensible police behavior comparable to the
exclusionary rule. The focus of the defense is on what the
police do and not on what kind of person the particular
defendant is—whether he is innocent or predisposed to
crime.
Id. at 238 (quotation and citation omitted).
“In their zeal to enforce the law, government agents may not
originate a criminal design, implant in an innocent person's
mind the disposition to commit a criminal act and then induce
commission of the crime so that the government may
prosecute.” Commonwealth v. Borgella, 611 A.2d 699, 701
(Pa. 1992) (citation omitted).
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Where police “do no more than afford [an] appellant an
opportunity” to commit an illegal act, their actions are not
considered sufficiently outrageous police conduct to support an
entrapment defense. Marion, 981 A.2d at 238. Thus, the
availability of the entrapment defense under the statute does
not preclude the police from acting “so as to detect those
engaging in criminal conduct and ready and willing to commit
further crimes should the occasion arise. Such indeed is their
obligation.” Id.***
Here, there was evidence indicating that M.H. and Appellant had
met each other some time prior to 2014. Specifically,
Appellant, his wife, M.H., and M.H.'s boyfriend had sex in a
hotel.
Beginning on December 13, 2014, M.H. began conversing with
Appellant (who called himself “Craig Jones”) via Facebook
without any direction from the police. For instance, in a
December 19, 2014, Facebook conversation, Appellant
indicated he wanted M.H. to lick her infant daughter in front of
Appellant, and he suggested having sex with M.H. in front of his
five-year-old son. He also asked M.H. if she had “licked [her]
daughter's p***y yet[.]”
Thereafter, beginning in early November of 2015, M.H.
contacted the police and showed them her Facebook account.
She then agreed to work as an informant for the police and
permit Corporal Vilello to assume her identity on Facebook and
text for purposes of communicating with “Craig Jones” so that
the police could determine his true identity. Corporal Vilello
indicated he posed as M.H. on Facebook for “only a day,” and
since Appellant had provided his phone number to M.H., he
posed as M.H. and began texting Appellant.
In the text messages, Appellant escalated the situation by
requiring proof of M.H.'s loyalty and trust. Also, during the text
messages, Appellant asked M.H. to come and visit him, and he
insisted she bring her infant daughter.
Holmes, 2019 WL 3205784 at *9 (internal parallel citations and footnotes
omitted).
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In contrast to Appellant’s claims, the messages exchanged via Facebook
and by text do not show that M.H. and Corporal Vilello made “unprovoked
solicitations” amounting to entrapment. See Appellant’s Brief at 18. In fact,
within the context of Appellant’s direct appeal, this Court specifically found
that, based upon the exchanges, “the jury properly determined Appellant did
not meet his burden of proving by a preponderance of the evidence that his
conduct occurred in response to an entrapment.” Holmes, 2019 WL 3205784
at *9. As such, Appellant is not entitled to relief.
Finally, we conclude that Appellant failed to develop his remaining
claims alleging that Attorney Morrone was ineffective within the context of the
pre-trial and trial phases of the underlying criminal litigation. Instead,
Appellant provides two or three rambling, confusing sentences in support of
his contentions. Moreover, Appellant makes no effort, other than setting forth
conclusory statements, to demonstrate how any of Attorney Morrone’s alleged
deficiencies prejudiced him. Appellant therefore failed to adequately explain,
develop, or support his remaining claims of trial counsel ineffective assistance
and, as such, is not entitled to relief. Spotz, 47 A.3d at 108 n.34 (dismissing
some of the appellant’s claims because his assertions were “not explained, not
developed, and not supported factually or legally”).
In his seventh issue, Appellant argues that his direct appeal counsel,
Ryan Gardner, Esq., provided ineffective assistance. In particular, Appellant
claims Attorney Gardner failed to file a brief in support of his post-sentence
motion and, as such, was ineffective. Appellant Brief at 23. Next, Appellant
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argues that Attorney Gardner provided ineffective assistance because he failed
to preserve the issue of renouncement on appeal. Id. In this same vein,
Appellant criticizes the manner in which Attorney Gardner presented
Appellant’s entrapment defense on appeal. Id. Finally, Appellant claims that
Attorney Gardner’s interests “diverge[d]” from that of his own after Attorney
Gardner “decided to run for, was elected to, and took the office of District
Attorney [of Lycoming County].” Id. at 24. This, combined with his failure to
withdraw as Appellant’s counsel while his appeal was pending, in Appellant’s
view, resulted in ineffective assistance. Id.
First, we conclude that Appellant’s claim regarding Attorney Gardner’s
failure to file a brief in support of Appellant’s post-sentence motion fails for
lack of prejudice. Herein, Attorney Gardner filed a post-sentence motion on
December 28, 2017. On the date set for argument, however, Attorney
Gardner “had a critical medical emergency which prevented his appearance at
the hearing.” Trial Court Order, 4/20/18, at 1. As such, the trial court decided
that the “matter [would] be submitted on briefs” and ordered Attorney
Gardner to “submit a brief or written memorandum . . . on the issues that
[were] the subject of the post-sentence motion” within 10 days of its order.
Id. Attorney Gardner failed to submit a brief and Appellant’s post-sentence
motion was denied by operation of law. For this reason, Appellant argues
Attorney Gardner provided ineffective assistance. Appellant, however, fails to
set forth any argument demonstrating that, had Attorney Gardner filed a brief
in support of Appellant’s post-sentence motion, the outcome would have been
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different, i.e., the trial court would have granted Appellant’s post-sentence
motion. In fact, he provides no argument with respect to any prejudice
suffered as a result of counsel’s failure to file a brief. See Appellant’s Brief at
23-24. Hence, Appellant’s claim fails.
Next, Appellant, again, sets forth claims regarding the issue of his
alleged renouncement, claiming Attorney Gardner was ineffective because,
although he raised this issue on appeal, this Court determined the issue was
waived for failure to include it in his court-ordered Pa.R.A.P. 1925(b)
statement. See Appellant’s Brief at 23; see also Holmes, 2019 WL 3205784
at *6. Similarly, Appellant takes issue with the manner in which Attorney
Gardner presented his entrapment defense on appeal. See Appellant’s Brief
at 23. As explained above, however, Appellant’s claims lack merit, and he is
not entitled to relief.
Finally, Appellant claims Attorney Gardner failed to disclose his intention
to run for and ultimately, his election to, the office of Lycoming County’s
District Attorney. Appellant’s Brief at 23. This, per Appellant, resulted in a
conflict of interest and, ultimately, ineffective assistance of counsel. Id.The PCRA court addressed Appellant’s contention as follows:
Attorney Gardner won the primary election while this case was
still on appeal with the Superior Court. Following the Superior
Court’s decision, Attorney Gardner properly and timely filed a
[p]etition for [p]ermission [to a]ppeal with the Supreme Court
and, prior to its denial, Attorney Gardner won the general
election. There is no evidence that Attorney Gardner ever
formally withdrew from the case or that [Attorney Gardner’s
partner, Christian] Lovecchio, [Esq.,] ever entered his
appearance. However, upon his pro se filing of his initial PCRA
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[petition], [Appellant] was appointed counsel to assist him with
the PCRA process.
While the [c]ourt certainty understands [Appellant’s]
frustration, the fact remains that all of [his] appeal rights were
preserved [and] . . . no conflict existed at the time Attorney
Gardner was running for office. [Appellant] does not claim that
Attorney Gardner is now improperly handling this matter a[s]
the District Attorney, which would obviously be a conflict of
interest. Based on the above timeline, it cannot be said that
Attorney Gardner “abandoned” [Appellant] during his appeal.
See [] Commonwealth v. Bennett, 930 A.2d 1264, 1274 (Pa.
2007) (finding that PCRA counsel abandoned the defendant
when he failed to file a appellate brief on appeal). Additionally,
Attorney Gardner’s actions or inactions, i.e., failing to notify
[Appellant] of his intention to run for District Attorney, would
not have changed the outcome of [his] appeal to the Superior
Court or the Supreme Court’s denial of his [p]etition for
[p]ermission [to a]ppeal.
[Appellant] has not proved that he suffered any prejudice from
Attorney Gardner’s actions or inaction or that there is a
reasonable probability that the outcome of either the Superior
Court’s decision or the Supreme Court’s denial of allocatur
would have been different had Attorney Gardner notified
[Appellant] of his campaign for District Attorney. [Appellant]
has failed to meet his burden [of proving ineffective assistance
of counsel] and, therefore, his claim . . . is denied.
PCRA Court Order and Opinion, 2/17/22, at 32-33 (footnote omitted). We
adopt this aspect of the PCRA court reasoning as our own. Based upon the
foregoing, we conclude that Appellant is not entitled to relief with respect to
his claim that Attorney Gardner provided ineffective assistance.
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J-S02027-23
In his eighth issue, Appellant sets forth a claim of ineffective assistance
against PCRA counsel, Attorney Jasper.5 In sum, Appellant’s claim is confined
to Attorney Jasper’s decision to file a Turner/Finley letter, as opposed to
representing him during the PCRA process. Appellant’s Brief at 25-27.
As this Court has explained, counsel seeking to withdraw in PCRA
proceedings
must review the case zealously. Turner/Finley counsel must
then submit a “no-merit” letter to the trial court, or brief on
appeal to this Court, detailing the nature and extent of counsel's
diligent review of the case, listing the issues which petitioner
wants to have reviewed, explaining why and how those issues
lack merit, and requesting permission to withdraw.
Counsel must also send to the petitioner: (1) a copy of the
“no-merit” letter/brief; (2) a copy of counsel's petition to
withdraw; and (3) a statement advising petitioner of the right
to proceed pro se or by new counsel.
Commonwealth v. Muzzy, 141 A.3d 509, 510–511 (Pa. Super. 2016)
(ellipses and citation omitted).
In this case, we conclude that Attorney Jasper fulfilled the procedural
requirements for withdrawing as PCRA counsel and that the PCRA court
properly concluded that Appellant’s PCRA petition lacked merit. Attorney
Jasper provided Appellant with a letter thoroughly detailing her review of the
____________________________________________
5 Pursuant to Commonwealth v. Bradley, 261 A.3d 381 (Pa. 2021), a PCRA
petitioner may, after a PCRA court denies relief, after obtaining new counsel
or acting pro se, raise claims of PCRA counsel’s ineffectiveness at the first
opportunity to do so, even if on appeal. We therefore possess the authority
to review Appellant’s claim regarding PCRA counsel’s ineffectiveness, even
though it was raised for the first time on appeal.
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J-S02027-23
case and listing all of the issues Appellant wished her to review. In addition,
Attorney Jasper engaged in a significant discussion regarding the merits of
Appellant’s claims. Lastly, she informed Appellant of his right to proceed pro
se or obtain new counsel. The PCRA court held a hearing regarding Appellant’s
petition and only granted Attorney Jasper leave to withdraw and denied
Appellant’s petition after hearing from Attorney Jasper and Appellant.
Moreover, the PCRA court prepared a lengthy and thorough opinion setting
forth the reasons why Appellant’s PCRA petition lacked merit. See PCRA Court
Opinion and Order, 2/17/22. Thus, Appellant’s claim regarding PCRA counsel’s
ineffectiveness is baseless.
In his final issue, Appellant’s argues that the PCRA court erred in failing
to appoint new counsel after PCRA counsel filed a Turner/Finley letter and
after she was permitted to withdraw. This Court has previously stated,
however, that “once the court permits PCRA counsel to withdraw after filing a
Turner/Finley ‘no-merit’ letter, an appellant is no longer entitled to the
appointment of counsel on appeal.” Commonwealth v. Shaw, 217 A.3d
265, 268 n.3 (Pa. Super. 2019), citing Commonwealth v. Rykard, 55 A.3d
1177 (Pa. Super. 2012) (explaining that if a proper Turner/Finley no-merit
letter is filed, new counsel shall not be appointed, and an appellant must look
to his own resources for future proceedings). Hence, no error occurred, as
Appellant was no longer entitled to counsel.
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Order Affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/8/2023
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