Com. v. Colon, A., Jr. ( 2018 )


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    NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
    COMMONWEALTH OF PENNSYLVANIA            :     IN THE SUPERIOR COURT OF
    :           PENNSYLVANIA
    v.                  :
    :
    ARIEL COLON, JR.,                       :          No. 422 MDA 2017
    :
    Appellant      :
    Appeal from the PCRA Order, February 2, 2017,
    in the Court of Common Pleas of Schuylkill County
    Criminal Division at No. CP-54-CR-0001391-2014
    BEFORE: GANTMAN, P.J., SHOGAN, J., AND FORD ELLIOTT, P.J.E.
    MEMORANDUM BY FORD ELLIOTT, P.J.E.:                  FILED APRIL 16, 2018
    Ariel Colon, Jr., appeals from the February 2, 2017 order denying his
    petition for relief filed pursuant to the Post-Conviction Relief Act (“PCRA”),
    42 Pa.C.S.A. §§ 9541-9546.       Contemporaneously with this appeal, PCRA
    counsel has requested leave to withdraw. After careful review, we find PCRA
    counsel’s petition satisfies the requirements of Commonwealth v. Turner,
    
    544 A.2d 927
    (Pa. 1988), and Commonwealth v. Finley, 
    550 A.2d 213
    (Pa.Super. 1988) (en banc). Accordingly, we grant PCRA counsel leave to
    withdraw and affirm the order of the PCRA court.
    The relevant facts of this case were summarized by a prior panel of
    this court on direct appeal and need not be reiterated here.             See
    Commonwealth v. Colon, 
    134 A.3d 500
    (Pa.Super. 2015) (unpublished
    memorandum at 1-2), citing trial court opinion, 6/10/15 at 2-3.      In sum,
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    appellant slashed the victim’s neck with a razor blade, near her carotid
    artery, following an argument. On February 10, 2015, appellant was found
    guilty of aggravated assault, recklessly endangering another person, and
    simple assault1 in connection with this incident.   Appellant was found not
    guilty of the crimes of criminal attempt to commit first-degree murder and
    possessing an instrument of crime (“PIC”).2     On March 19, 2015, the trial
    court sentenced appellant to an aggregate term of 9 to 20 years’
    imprisonment.      At all relevant times during his trial and sentencing,
    appellant was represented by Andrea L. Thompson, Esq. (“trial counsel”).
    On November 20, 2015, a panel of this court affirmed appellant’s
    judgment of sentence, and appellant did not seek allowance of appeal with
    our supreme court. See Colon, 
    134 A.3d 500
    . On June 27, 2016, appellant
    filed a pro se PCRA petition alleging the ineffectiveness of trial counsel. On
    July 8, 2016, Jeffrey M. Markosky, Esq. (“PCRA counsel”), was appointed to
    represent appellant and filed an amended PCRA petition on his behalf on
    December 15, 2016. The PCRA court conducted an evidentiary hearing on
    appellant’s petition on January 19, 2017. Following the hearing, the PCRA
    court entered an order on February 2, 2017 denying appellant’s petition.
    This timely appeal followed on March 1, 2017. On March 3, 2017, the PCRA
    court directed appellant to file a concise statement of errors complained of
    1   18 Pa.C.S.A. §§ 2702, 2705, and 2701, respectively.
    2   
    Id. §§ 901
    (2502) and 907, respectively.
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    on appeal, in accordance with Pa.R.A.P. 1925(b), within 25 days. Appellant
    filed a timely Rule 1925(b) statement on March 28, 2017.          On March 29,
    2017, the PCRA court filed a one-page Rule 1925(a) opinion indicating that it
    was relying on the reasoning set forth in its prior February 2, 2017 opinion.
    (See Rule 1925(a) opinion, 3/29/17; PCRA court opinion, 2/2/17 at 2-4.)
    Thereafter, on April 6, 2017, PCRA counsel subsequently filed a
    “no-merit” letter and a petition to withdraw. Appellant did not file a pro se
    response to PCRA counsel’s petition. On December 5, 2017, we entered a
    judgment order denying PCRA counsel’s request to withdraw and remanding
    this matter to afford PCRA counsel the opportunity to obtain and review the
    January 19, 2017 hearing transcript that did not initially appear in the
    certified record.     See Commonwealth v. Colon, 
    2017 WL 6014426
    (Pa.Super. 2017) (unpublished judgment order). We directed PCRA counsel
    “to file an advocate’s brief or another Turner/Finley ‘no-merit’ letter and
    petition to withdraw, following a review of the complete record.” 
    Id. at *1.
    PCRA counsel complied and filed a “no-merit” letter on February 21, 2018.
    On appeal, PCRA counsel raises a litany of ineffectiveness claims on
    appellant’s behalf.     Specifically, appellant contends that trial counsel
    rendered ineffective assistance (i) by failing to provide him with discovery
    until two weeks prior to trial; (ii) by virtue of the fact that trial counsel had
    previously represented Commonwealth witness James Myers; (iii) by failing
    to object to the trial court’s imposition of the deadly weapon enhancement
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    at sentencing on the basis that he was acquitted of the PIC charge; and
    (iv) by failing to file a motion to suppress a razor blade found on his person.
    (Turner/Finley brief at 6-8.)
    Prior to considering appellant’s arguments, we must address PCRA
    counsel’s “no-merit” letter and petition to withdraw from representation. In
    Commonwealth v. Muzzy, 
    141 A.3d 509
    (Pa.Super. 2016), a panel of this
    court recently reiterated the procedure to be followed when PCRA counsel
    files   a   “no-merit”   letter   and   seeks   permission   to   withdraw   from
    representation:
    Counsel petitioning to withdraw from PCRA
    representation     must      proceed    ...     under
    [Turner/Finley] and . . . 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.
    ....
    Where counsel submits a petition
    and no[-]merit letter that . . . satisfy the
    technical demands of Turner/Finley, the
    court—trial court or this Court—must
    then conduct its own review of the merits
    of the case. If the court agrees with
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    counsel that the claims are without
    merit, the court will permit counsel to
    withdraw and deny relief.
    
    Id. at 510-511
    (some bracketed internal citations amended; case citations
    omitted).
    Herein, we find that PCRA counsel’s initial filing with this court, while
    couched as a brief pursuant to Anders v. California, 
    386 U.S. 738
    (1967),
    complied with the requirements of Turner/Finley. See Commonwealth v.
    Fusselman, 
    866 A.2d 1109
    , 1111 n.3 (Pa.Super. 2004) (holding that
    although “[a] Turner/Finley no[-]merit letter is the appropriate filing [in a
    PCRA proceeding,] . . . because an Anders brief provides greater protection
    to the defendant, we may accept an Anders brief in lieu of a Turner/Finley
    letter”), appeal denied, 
    882 A.2d 477
    (Pa. 2005).
    Specifically, counsel’s initial “no-merit” letter detailed the nature and
    extent of counsel’s review.     In preparing the “no-merit” letter, counsel
    addressed the issues appellant raised in his PCRA petition and determined
    that they lack merit. Thereafter, counsel provided a discussion of appellant’s
    claims, explaining why each issue is without merit.        Finally, the record
    reflects that counsel served appellant with a copy of the “no-merit” letter
    and advised appellant, pursuant to this court’s June 12, 2017 directive, of
    his right to proceed pro se or with the assistance of privately retained
    counsel. See per curiam order, 6/12/17 (directing PCRA counsel to comply
    with the procedure outlined in Commonwealth v. Widgins, 
    29 A.3d 816
    ,
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    818 (Pa.Super. 2011), and notify appellant within 14 days of his right to
    proceed pro se or with the assistance of privately retained counsel). PCRA
    counsel’s subsequent filing with this court indicates that he obtained and
    reviewed the January 19, 2017 hearing transcript, as directed, and
    concluded that there are no additional issues he could raise on appellant’s
    behalf. (See “No-Merit” letter, 2/21/18 at 1.) Thus, we find that counsel’s
    request for leave to withdraw from representation satisfies the requirements
    of Turner/Finley.   See Commonwealth v. Karanicolas, 
    836 A.2d 940
    ,
    947 (Pa.Super. 2003) (stating that substantial compliance with requirements
    will satisfy the Turner/Finley criteria).   We must now conduct our own
    review of the record and render a decision as to whether the appeal is
    without merit.
    Proper appellate review of a PCRA court’s dismissal of a PCRA petition
    is limited to the examination of “whether the PCRA court’s determination is
    supported by the record and free of legal error.” Commonwealth v. Miller,
    
    102 A.3d 988
    , 992 (Pa.Super. 2014) (citation omitted). “This Court grants
    great deference to the findings of the PCRA court, and we will not disturb
    those findings merely because the record could support a contrary holding.”
    Commonwealth v. Patterson, 
    143 A.3d 394
    , 397 (Pa.Super. 2016)
    (citation omitted). In order to be eligible for PCRA relief, a defendant must
    plead and prove by a preponderance of the evidence that his conviction or
    sentence arose from one or more of the errors listed at 42 Pa.C.S.A.
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    § 9543(a)(2). Further, these issues must be neither previously litigated nor
    waived. 42 Pa.C.S.A. § 9543(a)(3).
    To prevail on a claim of ineffective assistance of counsel under the
    PCRA, a petitioner must plead and prove by a preponderance of the evidence
    that counsel’s ineffectiveness “so undermined the truth-determining process
    that no reliable adjudication of guilt or innocence could have taken place.”
    42 Pa.C.S.A. § 9543(a)(2)(ii).        Specifically, a petitioner must establish the
    following three factors:      “first[,] the underlying claim has arguable merit;
    second, that counsel had no reasonable basis for his action or inaction; and
    third, that Appellant was prejudiced.” Commonwealth v. Charleston, 
    94 A.3d 1012
    , 1020 (Pa.Super. 2014), appeal denied, 
    104 A.3d 523
    (Pa.
    2014) (citation omitted).      “[C]ounsel is presumed to be effective and the
    burden     of     demonstrating        ineffectiveness   rests    on    appellant.”
    Commonwealth v. Ousley, 
    21 A.3d 1238
    , 1242 (Pa.Super. 2011), appeal
    denied, 
    30 A.3d 487
    (Pa. 2011) (citation omitted).           Additionally, counsel
    cannot be found ineffective for failing to raise a claim that is devoid of merit.
    Commonwealth v. Ligons, 
    971 A.2d 1125
    , 1146 (Pa. 2009).
    Appellant first argues that trial counsel was ineffective in failing to
    provide him with a discovery packet until two weeks prior to trial, which
    “prevented      [appellant]    from     adequately   preparing    for   his   trial.”
    (Turner/Finley brief at 6.) We disagree.
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    Instantly, the PCRA court concluded that appellant was not prejudiced
    by trial counsel’s purported inaction in this regard. As the PCRA court noted
    in its opinion, appellant presented virtually no evidence as to what he would
    have specifically done with the discovery had he received it earlier, and the
    PCRA court found that trial counsel was precluded from discussing the case
    with appellant because he refused to cooperate with trial counsel and
    effectively “shut down.” (See PCRA court opinion, 2/2/17 at 3.) This court
    has long recognized that “[a] petitioner establishes prejudice when he
    demonstrates that there is a reasonable probability that, but for counsel’s
    unprofessional errors, the result of the proceeding would have been
    different.”   Commonwealth v. Johnson, 
    966 A.2d 523
    , 533 (Pa. 2009)
    (citations and internal quotation marks omitted). Appellant has clearly failed
    to satisfy this burden in this instance.
    Appellant next argues that trial counsel was ineffective by virtue of the
    fact that she had a conflict of interest in this case because she had
    previously represented witness James Myers, who testified on behalf of the
    Commonwealth at trial. (Turner/Finley brief at 6-7). We disagree.
    It is well settled that “[a] defendant cannot prevail on a conflict of
    interest claim absent a showing of actual prejudice.”        Commonwealth v.
    Spotz, 
    896 A.2d 1191
    , 1231 (Pa. 2006); see also Commonwealth v.
    Hawkins, 
    787 A.2d 292
    , 297 (Pa. 2001) (requiring a post-conviction
    petitioner    to   demonstrate   that   counsel’s   prior   representation   of   a
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    Commonwealth witness adversely affected counsel’s representation of the
    petitioner).
    Our review of the record in this matter demonstrates that appellant
    suffered no discernable prejudice as a result of this purported conflict.
    Notably, appellant has failed to demonstrate that trial counsel was actively
    representing conflicting interests. Similar to Spotz and Hawkins, this was
    not a circumstance involving dual representation; rather, any representation
    by   trial   counsel   of   Myers   had    terminated   prior   to   trial   counsel’s
    representation    of   appellant.     Additionally,     appellant    has     failed   to
    demonstrate how her prior representation of Myers adversely affected trial
    counsel’s representation of appellant in this matter. This is especially true in
    light of the fact that during her closing argument, trial counsel actually
    attempted to implicate Myers as the individual who had slashed the victim’s
    neck. (See notes of testimony, 2/9/15 at 185-186.) Accordingly, there is
    no merit to appellant’s ineffectiveness claim related to the purported conflict
    of interest.    See 
    Spotz, 896 A.2d at 1232
    (rejecting a claim based on
    counsel’s representation of an individual which terminated before the
    appointment to represent the petitioner, because he offered nothing more
    than bald assertions, with no evidence to suggest that counsel’s conduct was
    due to the alleged conflict of interest).
    Appellant next argues that trial counsel was ineffective in failing to
    object to his being sentenced pursuant to the deadly weapon enhancement
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    on the basis that the jury acquitted him of PIC.     (Turner/Finley brief at
    7-8.) This claim is meritless.
    In Commonwealth v. Moore, 
    103 A.3d 1240
    (Pa. 2014), our
    supreme court explained that:
    Federal and Pennsylvania courts alike have long
    recognized that jury acquittals may not be
    interpreted as specific factual findings with
    regard to the evidence, as an acquittal does not
    definitively establish that the jury was not
    convinced of a defendant’s guilt. Rather, it has
    been the understanding of federal courts as well as
    the courts of this Commonwealth that an acquittal
    may merely show lenity on the jury’s behalf, or that
    the verdict may have been the result of compromise,
    or of a mistake on the part of the jury. Accordingly,
    the United States Supreme Court has instructed that
    courts may not make factual findings regarding jury
    acquittals and, thus, cannot upset verdicts by
    speculation or inquiry into such matters.
    
    Id. at 1246
    (citations and internal quotation marks omitted; emphasis
    added).
    Moreover, we conclude that the imposition of the deadly weapon
    enhancement was entirely warranted in this matter.       On direct appeal, a
    panel of this court found that there was sufficient evidence to sustain
    appellant’s conviction for aggravated assault after appellant sliced the
    victim’s neck with a razor blade.   See Colon, 
    134 A.3d 500
    (unpublished
    memorandum at 5, citing notes of testimony, 2/9/15 at 33-37). Based on
    the foregoing principles, we find that appellant’s challenge to the imposition
    of the deadly weapon enhancement during sentencing lacks arguable merit,
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    and trial counsel cannot be found ineffective for failing to raise a meritless
    claim. See 
    Ligons, 971 A.2d at 1146
    .
    Lastly, we conclude that there is no underlying merit to appellant’s
    contention that the razor blade found on his person should have been
    suppressed, and thus, trial counsel cannot be found ineffective for failing to
    pursue this meritless claim. (See Turner/Finley brief at 7-8.)
    “The Fourth Amendment to the [United States] Constitution and
    Article I, Section 8 of [the Pennsylvania] Constitution protect citizens from
    unreasonable searches and seizures.”            Commonwealth v. McAdoo, 
    46 A.3d 781
    , 784 (Pa.Super. 2012), appeal denied, 
    65 A.3d 413
    (Pa. 2013).
    “A search conducted without a warrant is deemed to be unreasonable and
    therefore constitutionally impermissible, unless an established exception
    applies.”    Commonwealth v. Strickler, 
    757 A.2d 884
    , 888 (Pa. 2000).
    “Exceptions to the warrant requirement include the consent exception, the
    plain    view   exception,   the   inventory    search    exception,   the   exigent
    circumstances exception, the automobile exception . . ., the stop and frisk
    exception,      and   the    search     incident     to     arrest     exception.”
    Commonwealth v. Dunnavant, 
    63 A.3d 1252
    , 1257 n.3 (Pa.Super. 2013)
    (emphasis added), affirmed by an equally divided court, 
    107 A.3d 29
    (Pa. 2014).
    Instantly, our review of the record in this matter reveals that the razor
    blade in question was found on appellant’s person following a lawful search
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    incident to arrest. (See notes of testimony, 2/9/15 at 164-167.) As a panel
    of this court recently explained in Commonwealth v. Simonson, 
    148 A.3d 792
    , 799 (Pa.Super. 2016), appeal denied, 
    2017 WL 1194890
    (Pa. 2017),
    The search incident to arrest exception allows
    arresting officers, in order to prevent the arrestee
    from obtaining a weapon or destroying evidence, [to]
    search both the person arrested and the area within
    his immediate control. Moreover, in contrast to the
    exigent circumstances exception, the search incident
    to arrest exception applies categorically. In other
    words, the search incident to arrest exception
    permits a search of the arrestee’s person as a matter
    of course—and without a case-by-case adjudication
    . . . [of] whether a search of a particular arrestee is
    likely to protect officer safety or evidence.
    
    Id. at 799
    (citations and internal quotation marks omitted). Based on the
    foregoing, we conclude that appellant’s underlying suppression claim lacks
    arguable merit, and trial counsel cannot be found ineffective for failing to
    raise a meritless claim. See 
    Ligons, 971 A.2d at 1146
    .
    Accordingly, we affirm the February 2, 2017 order of the PCRA court
    and grant PCRA counsel’s petition for leave to withdraw as counsel.
    Order affirmed. Petition for leave to withdraw as counsel granted.
    Judgment Entered.
    Joseph D. Seletyn, Esq.
    Prothonotary
    Date: 4/16/2018
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