Com. v. Torres, J.

J-S16027-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JOSE TORRES :
:
Appellant : No. 2522 EDA 2022
Appeal from the PCRA Order Entered September 12, 2022
In the Court of Common Pleas of Philadelphia County
Criminal Division at CP-51-CR-0009745-2017
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JOSE TORRES :
:
Appellant : No. 2523 EDA 2022
Appeal from the PCRA Order Entered September 12, 2022
In the Court of Common Pleas of Philadelphia County
Criminal Division CP-51-CR-0009744-2017
BEFORE: DUBOW, J., MURRAY, J., and McCAFFERY, J.
MEMORANDUM BY MURRAY, J.: FILED MAY 31, 2023
Jose Torres (Appellant) appeals from the order dismissing his petition
filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-
9546. For the reasons discussed below, we affirm.
This Court previously recounted the underlying facts:
The victims’ testimony at trial showed that they lived with
[Appellant] and their three brothers for seven years[,] after they
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were removed from the care of their mother because of physical
abuse in her home. … [Victim 1] testified that [Appellant]
repeatedly raped her starting [] when she was eight or nine years
old until she was 14 years old. … [Victim 1] explained that she
did not tell anyone about the abuse for a long time because she
was “scared and embarrassed” and was afraid that “[Appellant]
would do something to me.” (N.T. Trial, 1/23/19, at 58, 62). [The
victims] eventually told their two older sisters about the abuse,
who assisted [the victims] in reporting [the abuse] to [the] police
and moving from [Appellant’s] home.
[Victim 2] testified that [Appellant] raped her “about two
times a week, ... sometimes more,” from the time she was nine
years old until she was 12 years old. (Id. at 117, 119, 127).
During these episodes, [Appellant] performed oral sex on her and
anally penetrated her. … [Appellant] generally did not talk during
the incidents, other than to tell her “not to tell anyone.” (See id.
at 131). [Victim 2] complied with this directive because she felt
scared and embarrassed. (See id. at 125). She explained that
[Appellant] abused her when her brothers were either sleeping or
riding their bikes. (See id. at 136).
***
The trial court held a jury trial on January 23-25, 2019, and
the jury found [Appellant] guilty of [two counts each of unlawful
contact with a minor, endangering the welfare of a child,
corruption of minors, aggravated indecent assault, rape of a child,
and involuntary deviate sexual intercourse]. On June 7, 2019, the
trial court sentenced [Appellant to 37 - 74 years in prison,]
followed by ten years of probation.
Commonwealth v. J.T., 240 A.3d 950 (Pa. Super. 2020) (unpublished
memorandum at 1-2).
On September 21, 2020, this Court affirmed Appellant’s judgment of
sentence. Id. On March 9, 2021, the Pennsylvania Supreme Court denied
allowance of appeal. Commonwealth v. J.T., 250 A.3d 470 (Pa. 2021).
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On February 9, 2022, Appellant pro se filed the instant PCRA petition.
The PCRA court appointed attorney William A. Love (PCRA Counsel) to
represent Appellant. On June 3, 2022, PCRA Counsel filed a motion to
withdraw pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988),
and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
Appellant did not file a response. On August 1, 2022, the PCRA court issued
notice of intent to dismiss pursuant to Pa.R.Crim.P. 907. Appellant filed a
premature pro se notice of appeal.1 On September 12, 2022, the PCRA court
granted PCRA Counsel’s motion to withdraw and dismissed Appellant’s
petition. The PCRA court appointed attorney Stephen T. O’Hanlon (Attorney
O’Hanlon) to represent Appellant on appeal. Appellant and the PCRA court
complied with Pa.R.A.P. 1925.
Appellant presents the following question for review:
1. Did the PCRA court err in dismissing Appellant’s PCRA [p]etition
because dismissal was not supported by the [r]ecord and free
from legal error due to the fact that PCRA [C]ounsel was
ineffective and did not engage in a sufficient analysis of
Appellant’s pro se issues pursuant to [Finley, supra] when
Appellant’s pro se [p]etition was in excess of twenty pages and
prior PCRA [C]ounsel’s analysis was effectively one page and
therefore, this matter should be remanded for the filing of an
amended [p]etition or a complete Finley letter?
____________________________________________
1 Because the PCRA court subsequently dismissed Appellant’s petition, his
appeal is perfected. Commonwealth v. McGarry, 172 A.3d 60, 63 n.1 (Pa.
Super. 2017) (premature appeal was proper because PCRA court subsequently
entered a final order dismissing PCRA petition).
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Appellant’s Brief at 4.
We review the PCRA court’s denial of relief by “examining whether the
PCRA court’s findings of fact are supported by the record, and whether its
conclusions of law are free from legal error.” Commonwealth v. Busanet,
54 A.3d 35, 45 (Pa. 2012). “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 party who prevailed in the PCRA court proceeding.” Id.[T]he PCRA court has the discretion to dismiss a petition without
a hearing when the court is satisfied “that there are no genuine
issues concerning any material fact, the defendant is not entitled
to post-conviction collateral relief, and no legitimate purpose
would be served by any further proceedings.” Pa.R.Crim.P.
909(B)(2). “[T]o obtain reversal of a PCRA court’s decision to
dismiss a petition without a hearing, an appellant must show that
he raised a genuine issue of fact which, if resolved in his favor,
would have entitled him to relief, or that the court otherwise
abused its discretion in denying a hearing.” Commonwealth v.
D’Amato, 856 A.2d 806, 820 (Pa. 2004).
Commonwealth v. Hanible, 30 A.3d 426, 452 (Pa. 2011).
Appellant contends PCRA Counsel was ineffective. The Pennsylvania
Supreme Court has explained:
[C]ounsel is presumed to have been effective and [] the petitioner
bears the burden of proving counsel’s alleged ineffectiveness.
Commonwealth v. Cooper, 941 A.2d 655, 664 (Pa. 2007). To
overcome this presumption, a petitioner must establish that: (1)
the underlying substantive claim has arguable merit; (2) counsel
did not have a reasonable basis for his or her act or omission; and
(3) the petitioner suffered prejudice as a result of counsel’s
deficient performance, “that is, a reasonable probability that but
for counsel’s act or omission, the outcome of the proceeding would
have been different.” Id. A PCRA petitioner must address each
of these prongs on appeal. See Commonwealth v. Natividad,
938 A.2d 310, 322 (Pa. 2007) (explaining that “appellants
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continue to bear the burden of pleading and proving each of the
[foregoing ineffectiveness prongs] on appeal to this Court”). A
petitioner’s failure to satisfy any prong of this test is fatal to the
claim. Cooper, 941 A.2d at 664.
Commonwealth v. Wholaver, 177 A.3d 136, 144 (Pa. 2018) (citations
modified). “Counsel cannot be found ineffective for failing to pursue a
baseless or meritless claim.” Commonwealth v. Taylor, 933 A.2d 1035,
1042 (Pa. Super. 2007) (citation omitted).
In Commonwealth v. Bradley, 261 A.3d 381 (Pa. 2021), our Supreme
Court held “a PCRA petitioner may, after a PCRA court denies relief, and 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.” Id. at
401. Because this is Appellant’s first PCRA petition and he raises his claim at
the first opportunity following PCRA Counsel’s withdrawal and Attorney
O’Hanlon’s entry of appearance, Bradley applies.
“Where a petitioner alleges multiple layers of ineffectiveness, he is
required to plead and prove, by a preponderance of the evidence, each of the
three prongs of ineffectiveness relevant to each layer of representation.”
Commonwealth v. Parrish, 273 A.3d 989, 1003 n.11 (Pa. 2022).
In determining a layered claim of ineffectiveness, the critical
inquiry is whether the first attorney that the defendant asserts
was ineffective did, in fact, render ineffective assistance of
counsel. If that attorney was effective, then subsequent counsel
cannot be deemed ineffective for failing to raise the underlying
issue.
Commonwealth v. Burkett, 5 A.3d 1260, 1270 (Pa. Super. 2010).
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Appellant bases his claim of ineffectiveness on PCRA Counsel’s no-merit
letter. Appellant states:
[PCRA Counsel’s] Finley letter … contains a three-page analysis.
[PCRA] Counsel does not list all of [Appellant’s] pro se issues. For
example, the [Pa.R.Crim.P.] 600 issue is not referenced and the
additional character witnesses are not mentioned.
The “Legal Discussion” is just over a page-and-a-half and
does not individually address Appellant’s pro se issues[,] even in
the incomplete format as presented by PCRA [C]ounsel. There is
no legal citation for several issues and the limited issues are
addressed in one to two sentences. Id.This format does not comply with Finley and Turner,
supra.
PCRA [C]ounsel was, thus, ineffective. Appellant need not
show prejudice because PCRA [C]ounsel failed to comply with the
dictates of rules of court as well as Finley and Turner, supra.
Appellant’s Brief at 10-11 (record citations omitted).
Established law provides that PCRA counsel seeking to withdraw must
file with the court a “no merit” letter. See Commonwealth v. Doty, 48 A.3d
451, 454 (Pa. Super. 2012). Counsel must set forth in the letter the nature
and extent of counsel’s review of the case, list the issues the petitioner wishes
to raise, and explain counsel’s conclusion that the issues are meritless. Id.Counsel must send a copy of the no-merit letter to the petitioner, as well as a
copy of the motion to withdraw. Id. Counsel should also provide a statement
to petitioner explaining the right to proceed pro se or through new counsel.
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Instantly, the record refutes Appellant’s assessment of PCRA Counsel’s
no-merit letter. As the PCRA explained:
[PCRA Counsel] complied with the requirements of Finley. In his
pro se petition, Appellant alleges an extensive number of claims
as to why the court should award him relief. See Appellant’s Pet.,
02/09/2022. In his no-merit letter, [PCRA C]ounsel detailed the
nature and extent of his review. [PCRA] Counsel stated he
“conducted an exhaustive review of the record,” that he and his
associate each spoke with Appellant, that [Counsel] thoroughly
examined Appellant’s pro se petition, and reviewed the notes of
testimony and the record on appeal. Finley Letter, 06/03/2022
at 1. PCRA [C]ounsel went on to list each of the claims for relief
Appellant listed in his pro se petition. Id. at 1-2. Lastly, PCRA
[C]ounsel provided a discussion as to why each of these issues
lacked merit. Id. at 2-4. PCRA [C]ounsel cited to the record and
provided the applicable law he used in determining that
Appellant’s pro se petition lacked merit. Id. at 1-4. [PCRA]
Counsel’s letter also advised Appellant of his right to appeal
and/or to seek new counsel. Id. at 1.
Accordingly, PCRA counsel’s no-merit letter substantially complied
with the Finley requirements.
PCRA Court Opinion, 11/18/22, at 8.
Moreover, Appellant references the three-prong test for ineffectiveness
pronounced Strickland v. Washington, 466 U.S. 668, 687 (1984), but fails
to address the first two prongs. Appellant’s Brief at 9; Wholaver, supra.
With respect to the third prong, which requires a petitioner to establish
prejudice as a result of counsel’s performance, Appellant baldly claims,
without citation to legal authority, that he is not required to show prejudice.
Appellant’s Brief at 11.
Further, Appellant fails to detail what claims PCRA Counsel did not raise
in the Turner/Finley letter. The two claims Appellant cites ─ the Rule 600
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speedy trial issue and the character witness issue ─ are addressed by PCRA
Counsel in the Turner/Finley letter. Finley Letter at 2-4.
Appellant does not refute PCRA Counsel’s conclusion that the claims
Appellant raised in his pro se PCRA petition lack merit. See Appellant’s Brief
at 8-12. Notably, the PCRA court filed a comprehensive Rule 907 notice in
which it discussed its review of the record and explained why Appellant’s
claims lacked merit. See Rule 907 Notice, 8/1/22, at 1-9 (unnumbered).
Appellant has not demonstrated that had PCRA Counsel filed a longer, more
detailed Turner/Finley letter, the results of the PCRA proceeding would have
been different.
Because Appellant has not addressed the first two prongs of the
ineffectiveness test or provided legal support for his claim that he is not
required to show prejudice, his layered claim of PCRA Counsel’s
ineffectiveness fails. See Commonwealth v. Rolan, 964 A.2d 398, 406 (Pa.
Super. 2008) (where appellant fails to prove any one prong of the
ineffectiveness test, he does not meet his burden, and counsel is deemed
constitutionally effective). The PCRA court did not err in granting PCRA
Counsel’s motion to withdraw and dismissing Appellant’s PCRA petition.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/31/2023
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