Opinion
J-S01034-16 No. 2724 EDA 2014
02-24-2016
COMMONWEALTH OF PENNSYLVANIA Appellee v. KWAME MASSINA Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the PCRA Order August 13, 2014
In the Court of Common Pleas of Lehigh County
Criminal Division at No(s): CP-39-CR-0001680-2008 BEFORE: GANTMAN, P.J., MUNDY, J., and MUSMANNO, J. MEMORANDUM BY GANTMAN, P.J.:
Appellant, Kwame Massina, appeals from the order entered in the Lehigh County Court of Common Pleas, which denied his petition brought pursuant to the Post Conviction Relief Act ("PCRA"). We affirm.
In its opinion, the trial court fully and correctly sets forth the relevant facts and procedural history of this case. Therefore, we have no reason to restate them.
The court denied Appellant's PCRA petition by order dated August 12, 2014, and docketed August 13, 2014. The record makes clear that Appellant gave his notice of appeal to prison authorities for mailing on September 12, 2014. Thus, pursuant to the prisoner mailbox rule, Appellant timely filed his notice of appeal.
Appellant raises the following issues for our review:
WHETHER THE TRIAL COURT ERRED IN PERMITTING COUNSEL TO WITHDRAW AND DENYING [APPELLANT'S] PCRA PETITION, WHERE [PCRA] COUNSEL'S TURNER/FINLEY LETTER WAS LEGALLY INSUFFICIENT?(Appellant's Brief at 4-5).
WHETHER PCRA COUNSEL'S "NO-MERIT" LETTER FAILED TO DETAIL THE NATURE AND EXTENT OF [PCRA] COUNSEL'S REVIEW OF THE MERITS OF EACH OF THOSE CLAIMS?
WHETHER PCRA COUNSEL RENDERED INEFFECTIVE ASSISTANCE OF COUNSEL BECAUSE HE FAILED TO INVESTIGATE, RAISE AND ADDRESS ALL OF THE ISSUES PRESENTED IN [APPELLANT'S] PRO SE PCRA PETITION?
WHETHER PCRA COUNSEL WAS INEFFECTIVE IN FAILING TO DO A PROPER INDEPENDENT REVIEW OF THE RECORD?
WHETHER THE TRIAL COURT ERRED IN PERMITTING [PCRA] COUNSEL TO WITHDRAW AND DENYING [APPELLANT'S] PCRA PETITION, WHEREIN PCRA COUNSEL FAILED TO CONTEMPORANEOUSLY SUPPLY [APPELLANT] WITH A COPY OF [PCRA] COUNSEL'S MOTION TO WITHDRAW AND WITH BOTH A COPY OF THE "NO-MERIT" LETTER AND A STATEMENT ADVISING THAT IN THE EVENT THE COURT GRANTS THE MOTION TO WITHDRAW, HE HAS THE RIGHT TO PROCEED PRO SE OR HIRE COUNSEL?
WHETHER THE TRIAL COURT ERRED IN DENYING [APPELLANT'S] PRO SE NUNC PRO TUNC OBJECTION TO PCRA COUNSEL'S TURNER/FINLEY LETTER?
Commonwealth v. Turner , 518 Pa. 491, 544 A.2d 927 (1988); Commonwealth v. Finley , 550 A.2d 213 (Pa.Super. 1988) (en banc).
For purposes of disposition, we have reordered Appellant's issues.
Our standard of review of the denial of a PCRA petition is limited to examining whether the evidence of record supports the court's determination and whether its decision is free of legal error. Commonwealth v. Conway , 14 A.3d 101, 108 (Pa.Super. 2011), appeal denied, 612 Pa. 687, 29 A.3d 795 (2011). This Court grants great deference to the findings of the PCRA court if the record contains any support for those findings. Commonwealth v. Boyd , 923 A.2d 513, 515 (Pa.Super. 2007), appeal denied, 593 Pa. 754, 932 A.2d 74 (2007). We give no such deference, however, to the court's legal conclusions. Commonwealth v. Ford , 44 A.3d 1190, 1194 (Pa.Super. 2012). The PCRA court findings will not be disturbed unless the certified record provides no support for the findings. Commonwealth v. Taylor , 933 A.2d 1035, 1040 (Pa.Super. 2007), appeal denied, 597 Pa. 715, 951 A.2d 1163 (2008). There is no right to a PCRA hearing; a hearing is unnecessary where the PCRA court can determine from the record that there are no genuine issues of material fact. Commonwealth v. Jones , 942 A.2d 903, 906 (Pa.Super. 2008), appeal denied, 598 Pa. 764, 956 A.2d 433 (2008).
The law presumes counsel has rendered effective assistance. Commonwealth v. Williams , 597 Pa. 109, 950 A.2d 294 (2008). When asserting a claim of ineffective assistance of counsel, the petitioner is required to demonstrate that: (1) the underlying claim is of arguable merit, (2) counsel had no reasonable strategic basis for his action or inaction, and, (3) but for the errors and omissions of counsel, there is a reasonable probability that the outcome of the proceedings would have been different. Commonwealth v. Kimball , 555 Pa. 299, 312, 724 A.2d 326, 333 (1999). The failure to satisfy any prong of the test for ineffectiveness will cause the claim to fail. Williams , supra.
After a thorough review of the record, the briefs of the parties, the applicable law, and the well-reasoned opinion of the Honorable Douglas G. Reichley, we conclude Appellant's issues merit no relief. The trial court opinion comprehensively discusses and properly disposes of the questions presented. ( See Trial Court Opinion, filed January 28, 2015, at 9-14) (finding: (issues 1-4) PCRA counsel filed lengthy and detailed "no merit" letter with his petition to withdraw, in which he thoroughly reviewed all forty-two issues raised in Appellant's pro se supplemental PCRA petition; PCRA counsel properly and thoroughly addressed each of Appellant's issues throughout "no merit" letter; where Appellant's issues were not patently meritless, PCRA counsel documented what steps he took to review merits of issue; where issues were patently legally meritless, PCRA counsel properly noted this in "no merit" letter; except for issues that were patently legally meritless, PCRA counsel provided detailed explanation of nature and extent of his review of issues and why he determined issues were meritless; PCRA counsel noted he spoke with trial counsel, reviewed trial transcripts, and reviewed record prior to preparation of "no merit" letter; court reviewed PCRA counsel's "no merit" letter and concluded it addressed each issue in Appellant's pro se supplemental PCRA petition; PCRA counsel conducted complete review of record and took every necessary step to discern whether Appellant had any ground for PCRA relief; "no merit" letter complied with dictates of Turner/Finley and court properly granted PCRA counsel's petition to withdraw; (issue 5) in "no merit" letter mailed to Appellant, PCRA counsel informed Appellant that he could either represent himself or hire new counsel if court permitted PCRA counsel to withdrawal; at July 15, 2014 hearing on PCRA counsel's petition to withdraw, court further informed Appellant of status of his case and detailed Appellant's options after court granted PCRA counsel's petition to withdraw; Appellant was aware of petition to withdraw and his options moving forward prior to 7/15/14 hearing; thus, court properly granted PCRA counsel's petition to withdraw (issue 6) court denied Appellant's pro se nunc pro tunc objection because it was procedurally improper, untimely and meritless; at July 15, 2014 hearing, court granted PCRA counsel's petition to withdraw and issued notice of its intent to dismiss Appellant's PCRA petition without hearing pursuant to Pa.R.Crim.P. 907 ("Rule 907 notice"); on August 6, 2014, Appellant filed timely response to court's Rule 907 notice; on August 12, 2014, after review of Appellant's response to court's Rule 907 notice and Appellant's PCRA petition, court determined dismissal without hearing was appropriate because no arguably meritorious grounds for relief existed; on August 28, 2014, Appellant filed pro se nunc pro tunc objection to PCRA counsel's "no merit" letter after court had already dismissed Appellant's PCRA petition; under these circumstances, court properly denied Appellant's August 28, 2014 objection as untimely because Appellant's August 6, 2014 response to Rule 907 notice demonstrated Appellant's understanding of status of his case). Accordingly, we affirm on the basis of the trial court's opinion.
Order affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 2/24/2016
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