Com. v. Hill, M.

• Court: Superior Court of Pennsylvania
• Decided: February 24, 2020
• Docket: 2003 MDA 2018
• Status: Unpublished

Opinion

J-S36018-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : MARQUISE HILL : : Appellant : No. 2003 MDA 2018

Appeal from the Order Entered October 25, 2018 In the Court of Common Pleas of Lackawanna County Criminal Division at No(s): CP-35-CR-0000751-2014

BEFORE: PANELLA, P.J., SHOGAN, J., and PELLEGRINI*, J.

MEMORANDUM BY SHOGAN, J.: FILED FEBRUARY 24, 2020

Appellant, Marquise Hill, appeals from an order entered on October 25,

2018, that denied in part, and granted in part, his petition filed pursuant to

the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-9546.1 After

numerous motions and intervening filings, this case is once more before our

panel.

The record reveals that on December 10, 2014, following a jury trial,

Appellant was found guilty of robbery, simple assault, recklessly endangering

____________________________________________

1 Although this case presents a convoluted procedural history, we conclude that the October 25, 2018 order, which partially denied Appellant’s PCRA petition, is a final order and is ripe for disposition. See Commonwealth v. Grove, 170 A.3d 1127, 1150-1151 (Pa. Super. 2017) (addressing the merits of an appeal from an order partially denying a PCRA petition).

____________________________________ * Retired Senior Judge assigned to the Superior Court. J-S36018-19

another person, and harassment.2 The trial court applied the “three strikes”

sentencing enhancement from 42 Pa.C.S. § 9714(a)(2), and it imposed a

mandatory minimum sentence of twenty-five years for robbery. This resulted

in an aggregate term of twenty-five to fifty years of incarceration. Appellant

filed a timely appeal, and this Court affirmed Appellant’s judgment of

sentence. Commonwealth v. Hill, 141 A.3d 582, 132 MDA 2015 (Pa. Super.

filed February 1, 2016) (unpublished memorandum).

Appellant filed a timely PCRA petition on October 26, 2016. On

December 9, 2016, the PCRA court held a hearing pursuant to

Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998), to determine if

Appellant wished to waive his right to counsel and whether the waiver was

knowingly, voluntarily, and intelligently made. The PCRA court permitted

Appellant to represent himself and appointed Attorney Kurt Lynott

(“Attorney Lynott”), as stand-by counsel. Order, 12/9/16. Hearings on

Appellant’s PCRA petition were held on October 24, 2017, January 9, 2018,

and May 29, 2018. During Appellant’s third PCRA hearing on May 29, 2018,

Appellant requested Attorney Lynott’s representation for the rest of the

“case.” N.T., 5/29/18, at 41-42. On October 25, 2018, the PCRA court

2 18 Pa.C.S. §§ 3701(a)(1)(ii), 2701(a)(3), 2705, and 2709(a)(1), respectively.

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granted Appellant’s PCRA petition in part, and denied it in part.3 Order,

10/25/18. Specifically, the PCRA court granted Appellant relief with respect

to the legality of his sentence, directing that Appellant must be resentenced

without the “three strikes” sentencing enhancement. Order, 10/25/18. The

PCRA court denied Appellant’s PCRA petition in all other respects. Id.

Despite Attorney Lynott remaining counsel of record, Appellant filed a

pro se notice of appeal, and the PCRA court directed Appellant to file a

Pa.R.A.P. 1925(b) statement. Appellant complied, and the PCRA court filed a

Pa.R.A.P. 1925(a) opinion on January 15, 2019.

On April 3, 2019, Appellant filed a pro se application in this Court for

permission to file a reduced number of copies of his brief and reproduced

record. This Court granted Appellant’s application on April 17, 2019. On

May 9, 2019, Appellant filed his briefs and reproduced records pro se.

On June 14, 2019, Appellant filed a pro se motion to proceed in forma

pauperis (“IFP”). As noted, Attorney Lynott had not been granted leave to

withdraw and remained counsel of record. See Commonwealth v. Cherry,

155 A.3d 1080, 1082-1083 (Pa. Super. 2017) (criminal defendants have a

right pursuant to Pa.R.Crim.P. 904(C) to the assistance of counsel for their

first PCRA petition through the entire appellate process, and once counsel is

3 The PCRA court granted Appellant PCRA relief in part, concluding that Appellant should be resentenced without the “three strikes” sentencing enhancement imposed pursuant to 42 Pa.C.S. § 9714(a). Order, 10/25/18. The court denied Appellant’s PCRA petition in all other respects. Id.

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appointed, he must take affirmative steps to discharge his duties) (citations

omitted).

In a judgment order filed on June 24, 2019, we remanded this matter

to the PCRA court to determine Appellant’s IFP status and for a Grazier

hearing to determine if Appellant wanted counsel or to proceed pro se. This

Court also instructed that in the event Attorney Lynott continued his

representation, the PCRA court was to afford him the opportunity to file a

concise statement of errors complained of on appeal pursuant to Pa.R.A.P.

1925(b). Subsequently, in a letter dated July 14, 2019, Appellant informed

the PCRA court that he wished to have Attorney Lynott continue to represent

him.4 On July 19, 2019, the PCRA court directed Appellant to file a Pa.R.A.P.

1925(b) statement. However, on August 27, 2019, Attorney Lynott filed a

statement pursuant to Pa.R.A.P. 1925(c)(4) in he which he averred that there

were no issues of arguable merit. On October 2, 2019, the PCRA court filed

its Pa.R.A.P. 1925(a) opinion. The PCRA court noted that Appellant

4 Despite Attorney Lynott’s representation, on October 17, 2019, Appellant filed a pro se motion to supplement the record. On October 21, 2019, our Prothonotary forwarded the pro se motion to Attorney Lynott pursuant to Commonwealth v. Jette, 23 A.3d 1032 (Pa. 2011). Attorney Lynott did not pursue this motion. We need take no further action on this motion as it is not properly before this Court. Id. at 1044.

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maintained his IFP status because he remained incarcerated, and his financial

situation was unchanged. PCRA Court Opinion, 10/2/19, at 3.5

On October 23, 2019, Attorney Lynott filed an application to withdraw

and a brief.6 On November 8, 2019, Appellant filed a pro se motion for an

extension of time in which to file a reply to counsel’s brief and application to

withdraw. On November 15, 2019, this Court granted Appellant’s motion and

ordered that Appellant’s response was due on or before December 23, 2019.

However, we also stated that no further extensions would be granted. As of

this writing, Appellant has not filed a response.

Prior to addressing the merits of the issues on appeal, we must first

decide whether counsel has fulfilled the procedural requirements for

5 We note that on June 14, 2019, Appellant filed a motion to proceed IFP in this Court. We reiterate that Appellant was represented by counsel at that time, and the motion was not properly before this Court. Jette, 23 A.3d at 1044. Accordingly, we need not rule on this motion. Nevertheless, because the PCRA court concluded that Appellant maintained his IFP status due to his incarceration and unchanged financial status, we discern no barrier to Appellant maintaining IFP status on appeal pursuant to Pa.R.A.P. 551.

6 Counsel filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), which is proper where counsel seeks to withdraw representation in a direct appeal. This matter involves an application to withdraw on collateral review; therefore, a Turner/Finley no-merit letter is the appropriate filing. Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc). However, “[b]ecause an Anders brief provides greater protection to a defendant, this Court may accept an Anders brief in lieu of a Turner/Finley letter.” Commonwealth v. Widgins, 29 A.3d 816, 817 n.2 (Pa. Super. 2011) (citation omitted). Nevertheless, because Turner, Finley, and their progeny provide the proper means of review, and in an effort to forestall further confusion in this convoluted appeal, we refer to counsel’s brief as a Turner/Finley letter.

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withdrawing his representation. Commonwealth v. Daniels, 947 A.2d 795,

797 (Pa. Super. 2008). This Court has listed conditions counsel must satisfy

when seeking to withdraw in a collateral appeal:

Counsel petitioning to withdraw from PCRA representation must proceed ... under Turner, supra and Finley, supra 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.

* * *

[W]here counsel submits a petition and no-merit letter that ... satisfy the technical demands of Turner/Finley, the [court in which the application was filed, meaning the trial court or the appellate court ]must then conduct its own review of the merits of the case. If the court agrees with counsel that the claims are without merit, the court will permit counsel to withdraw and deny relief.

Commonwealth v. Doty, 48 A.3d 451, 454 (Pa. Super. 2012) (citation

In the application filed with this Court, Attorney Lynott explained he

reviewed the case, evaluated the issues, conducted an independent review of

the record, and concluded there were no issues of merit. Counsel listed issues

Appellant sought to raise and explained why the appeal is without merit. In

addition, counsel asserted that he served upon Appellant a copy of the

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application to withdraw, the no-merit letter, and a letter addressed to

Appellant accompanying those documents. Accordingly, we next review the

issues raised in the Turner/Finley Letter.

In the Turner/Finley Letter, counsel set forth the fifteen issues

Appellant wanted to raise on appeal, which counsel concludes are meritless,

as follows:

1. Did the trial court commit [an] error of law or abuse its discretion in failing to determine that the Commonwealth failed to provide sufficient evidence that [Appellant] committed the crimes alleged[?]

2. Did the trial court commit [an] error of law or abuse its discretion in failing to determine that the Commonwealth failed to prove beyond a reasonable doubt all the elements of robbery[?]

3. Did the trial court commit [an] error of law or abuse its discretion in failing to determine that the Commonwealth failed to prove beyond a reasonable doubt that [Appellant] by physical menace placed the victim in fear of serious bodily injury to establish the crime of simple assault[?]

4. Did the trial court commit [an] error of law or abuse its discretion in failing to determine that the Commonwealth failed to prove beyond a reasonable doubt that [Appellant] acted recklessly which placed the victim in danger of death or serious bodily injury[?]

5. Did the trial court commit [an] error of law or abuse its discretion in failing to determine that the Commonwealth failed to prove the elements required for the summary conviction of harassment[?]

6. Did the trial court commit [an] error of law or abuse its discretion in allowing the hearsay testimony of officer Jill Foley[?]

7. Was the PCRA court’s denial of [Appellant’s] PCRA petition supported by the record and/or free of legal error by determining

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that the trial counsel was not ineffective for not requesting the transcript from the preliminary hearing[?]

8. Was the PCRA court’s denial of [Appellant’s] PCRA petition supported by the record and/or free of legal error when it determined that trial counsel was not ineffective for not filing a petition for writ of habeas corpus as the victim failed to properly identify [Appellant?]

9. Was the PCRA court’s denial of [Appellant’s] PCRA petition supported by the record and/or free of legal error by determining that trial counsel was not ineffective for not obtaining copies of the 911 call made by the victim describing [Appellant?]

10. Was the PCRA court’s denial of [Appellant’s] PCRA petition supported by the record and/or free of legal error when it determined that trial counsel was not ineffective for not filing a motion to suppress the physical evidence utilized at trial[?]

11. Was the PCRA court’s denial of [Appellant’s] PCRA petition supported by the record and/or free of legal error when it determined that trial counsel was not ineffective for not challenging the security video of the crime being committed[?]

12. Was the PCRA court’s denial of [Appellant’s] PCRA petition supported by the record and/or free of legal error when it determined that trial counsel was not ineffective for not providing the testimony of two (2) alibi witnesses as requested by [Appellant?]

13. Was the PCRA court’s denial of [Appellant’s] PCRA petition supported by the record and/or free of legal error when it determined that trial counsel was not ineffective for not allowing [Appellant] to testify on his own behalf[?]

14. Was the PCRA court’s denial of [Appellant’s] PCRA petition supported by the record and/or free of legal error when it determined that trial counsel was not ineffective for not showing [Appellant’s] clothing that he was wearing the night of the incident to the jury[?]

15. Was the PCRA court’s denial of [Appellant’s] PCRA petition supported by the record and/or free of legal error when it determined that trial counsel was not ineffective for not allowing

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[Appellant] to participate in jury selection and the first twelve jurors were selected[?]

Turner/Finley Letter at 4-7 (full capitalization omitted).

When reviewing the propriety of an order denying PCRA relief, we

consider the record “in the light most favorable to the prevailing party at the

PCRA level.” Commonwealth v. Stultz, 114 A.3d 865, 872 (Pa. Super.

2015) (quoting Commonwealth v. Henkel, 90 A.3d 16, 20 (Pa. Super. 2014)

(en banc)). This Court is limited to determining whether the evidence of

record supports the conclusions of the PCRA court and whether the ruling is

free of legal error. Commonwealth v. Rykard, 55 A.3d 1177, 1183 (Pa.

Super. 2012). We grant great deference to the PCRA court’s findings that are

supported in the record and will not disturb them unless they have no support

in the certified record. Commonwealth v. Rigg, 84 A.3d 1080, 1084 (Pa.

Super. 2014).

To be eligible for relief under the PCRA, a defendant must plead and

prove that his conviction and/or sentence resulted from one of the

circumstances delineated by the PCRA. See 42 Pa.C.S. § 9543 (outlining the

eligibility requirements for PCRA relief). Among those requirements are that

the issue must not be previously litigated or waived. 42 Pa.C.S. § 9543(a)(3).

An issue is previously litigated if “the highest appellate court in which the

petitioner could have had review as a matter of right has ruled on the merits

of the issue[.]” 42 Pa.C.S. § 9544(a)(2).

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Appellant’s first five issues assail the sufficiency of the evidence at trial,

and the sixth issue challenges one of the trial court’s evidentiary rulings.

Turner/Finley Letter at 4-5. However, Attorney Lynott asserts that these

issues were previously litigated. Id. at 11-12. We agree. The record reveals

that the trial court disposed of these issues in its March 31, 2015 opinion.

Moreover, this Court addressed the issues in Appellant’s direct appeal. We

concluded that there was sufficient evidence to establish the convictions, and

we discerned no abuse of discretion in the trial court’s evidentiary ruling. Hill,

141 A.3d 582, 132 MDA 2015 (unpublished memorandum at 7-16).

Accordingly, Appellant is ineligible for relief on his first six issues because they

were previously litigated. 42 Pa.C.S. §§ 9543(a)(3); 9544(a)(2).

In issues seven through fifteen, Appellant alleges ineffective assistance

of trial counsel, Attorney Joseph Kalinowski (“Attorney Kalinowski”).

Turner/Finley Letter at 5-7. In order to succeed on a claim of ineffective

assistance of counsel, an appellant must demonstrate (1) that the underlying

claim is of arguable merit; (2) that counsel’s performance lacked a reasonable

basis; and (3) that the ineffectiveness of counsel caused the appellant

prejudice. Commonwealth v. Pierce, 786 A.2d 203, 213 (Pa. 2001). We

have explained that trial counsel cannot be deemed ineffective for failing to

pursue a meritless claim. Commonwealth v. Loner, 836 A.2d 125, 132 (Pa.

Super. 2003) (en banc). Moreover, with regard to the second prong of the

Pierce test, we have reiterated that trial counsel’s approach must be “so

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unreasonable that no competent lawyer would have chosen it.”

Commonwealth v. Ervin, 766 A.2d 859, 862-863 (Pa. Super. 2000) (quoting

Commonwealth v. Miller, 431 A.2d 233 (Pa. 1981)).

In addition, we are mindful that prejudice requires proof that there is a

reasonable probability that but for counsel’s error, the outcome of the

proceeding would have been different. Pierce, 786 A.2d at 213. “A failure

to satisfy any prong of the ineffectiveness test requires rejection of the claim

of ineffectiveness.” Commonwealth v. Daniels, 963 A.2d 409, 419 (Pa.

2009) (citing Commonwealth v. Sneed, 899 A.2d 1067 (Pa. 2006)). It is

presumed that the petitioner’s counsel was effective, unless the petitioner

proves otherwise. Commonwealth v. Williams, 732 A.2d 1167, 1177 (Pa.

1999).

For the reasons that follow, we agree with Attorney Lynott that the

issues are meritless. Appellant begins by claiming Attorney Kalinowski was

ineffective for failing to request the transcript from the preliminary hearing.

Turner/Finley Letter at 4. However, at the PCRA hearing on October 24,

2017, Attorney Kalinowski testified that Appellant was incorrect in this claim.

Attorney Kalinowski testified that he requested the notes of testimony from

the preliminary hearing. N.T. (PCRA Hearing I), 10/24/17, at 41-42.

Moreover, the transcript is in the certified record. Certified Record Entry #6;

N.T., Preliminary Hearing, 4/14/14. Accordingly, this issue is meritless.

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Appellant asserts in his eight issue that Attorney Kalinowski was

ineffective in refusing to file a petition for writ of habeas corpus after his

preliminary hearing. A preliminary hearing serves a limited function; its

purpose is to determine if a crime was committed and the probability that the

defendant could be connected to the crime. Commonwealth v. Landis, 48

A.3d 432, 444 (Pa. Super. 2012) (citation omitted). Where a criminal

defendant seeks to challenge the sufficiency of the evidence presented at his

preliminary hearing, he may pursue a writ of habeas corpus. Id. (citation

omitted). However, Attorney Kalinowski testified that he did not file the

petition because in his opinion, there was no basis upon which habeas corpus

relief could be granted. N.T. (PCRA Hearing I), 10/24/17, at 59; N.T. (PCRA

Hearing II), 1/9/18, at 26. At the preliminary hearing, the victim testified that

Appellant robbed the gas station where she worked using a gun. N.T.

(Preliminary Hearing), 4/14/14, at 8. The victim positively identified Appellant

at the hearing. Id. at 15. We conclude that Attorney Kalinowski was

reasonable in this course of action, and it was unlikely a petition for habeas

corpus relief would have been successful or achieved a different result.

Pierce, 786 A.2d at 213. Moreover, when a defendant has been proven guilty

beyond a reasonable doubt in a trial completed without reversible error, it is

would be “inappropriate as well as foolish” to require a new preliminary

hearing or trial. Commonwealth v. Worrall, 609 A.2d 851, 852 (Pa. Super.

1992). Appellant issue is meritless.

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In his ninth issue, Appellant claims that Attorney Kalinowski was

ineffective in failing to obtain a copy of the 911 call made by the victim.

However, Attorney Kalinowski testified that he was not provided with any

evidence of a 911 call. N.T. (PCRA Hearing I), 10/24/17, at 47. At the second

PCRA hearing, Appellant, who remained pro se, testified that he learned there

was, in fact, a 911 call made at the time of the robbery. N.T. (PCRA Hearing

II), 1/9/18, at 4. The parties and the PCRA court discussed this call, and the

PCRA court explained that the recordings of those calls are kept for a finite

period and there no longer was a recording of a 911 call. Id. at 16. After

review of the record, we find Appellant failed to establish how the result of the

proceedings would have been different if a recording of the 911 call had been

obtained. Appellant argued the 911 call would have shown a discrepancy in

identification, but he failed to establish what this discrepancy was or in what

way Attorney Kalinowski was ineffective. Id. at 15-16. Thus, this claim is

meritless.

Next, Appellant asserts in his tenth issue that Attorney Kalinowski was

ineffective in failing to file a motion to suppress the physical evidence.

However, Attorney Kalinowski explained that no evidence was seized from

Appellant’s person, and there was no basis in law for an omnibus motion to

suppress. N.T. (PCRA Hearing I), 10/24/17, at 43. We note that it is difficult

to discern what evidence Appellant wanted suppressed; however, in the

context of the PCRA hearing, wherein Appellant represented himself and

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questioned Attorney Kalinowski, there was a focus on evidence allegedly

seized from Appellant’s person at the time of his arrest. Id. at 42. Because

no evidence was seized from Appellant’s person, this claim is meritless. We

reiterate that counsel cannot be deemed ineffective for failing to pursue a

meritless claim. Loner, 836 A.2d at 132.

In his eleventh issue, Appellant argues Attorney Kalinowski was

ineffective because he did not challenge aspects of the security video.

Specifically, Appellant posited that the video footage had been altered or

edited. N.T. (PCRA Hearing I), 10/24/17, at 55. However, at the hearing,

Attorney Kalinowski testified that the video was not edited and there was no

evidence that the video in question had been edited or altered in any way.

Accordingly, there was no basis to move to suppress the video based on

Appellant’s allegation that it had been altered. Id.

In his twelfth issue, Appellant asserts Attorney Kalinowski was

ineffective in failing to call two purported alibi witnesses. After our review of

the record, we discern no basis upon which to conclude this course of action

was unreasonable. The record reflects that Attorney Kalinowski explained that

he spoke to Appellant’s proposed alibi witnesses, and he concluded there were

too many inconsistencies in their statements. N.T. (PCRA Hearing I),

10/24/17, at 63. There was also an allegation that one of these alibi witness

was harassing the victim. Id. at 63, 94. Additionally, Attorney Kalinowski

stated that he concluded the alibi defense was weak and difficult to establish;

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in his professional opinion, Attorney Kalinowski believed Appellant had a better

opportunity for success challenging the identification evidence. Id. at 64.

Providing an alibi defense with inconsistent witnesses would not have been in

Appellant’ best interest. We discern nothing unreasonable with

Attorney Kalinowski’s decision. See Ervin, 766 A.2d at 862-863 (stating that

in order to satisfy the second prong of the Pierce test, counsel’s chosen

strategy must be so unreasonable that no competent lawyer would have

chosen it).

In his thirteenth issue, Appellant alleges that Attorney Kalinowski was

ineffective in precluding Appellant from testifying. Attorney Kalinowski noted

that prior to trial, he advised Appellant not to testify because Appellant’s

criminal record that could then be admissible. N.T. (PCRA Hearing I),

10/24/17, at 79-80. However, Attorney Kalinowski explained that he left the

decision to testify was to Appellant, and Appellant opted to refrain. Id. at 81.

We note that the decision to testify is to be made by the accused after

consultation with counsel. Commonwealth v. Daniels, 999 A.2d 590, 596

(Pa. Super. 2010) (citation omitted). Even if Attorney Kalinowski counseled

Appellant not to testify, we would not conclude that counsel was ineffective

because Appellant’s testimony could have been be impeached with his prior

crimen falsi. Id. (citation omitted). We conclude there is no merit to

Appellant’s claim of ineffectiveness in this regard.

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In his fourteenth issue, Appellant argues that Attorney Kalinowski was

ineffective in failing to show the jury the clothing that Appellant wore on the

night of the robbery when he was arrested. The assertion here is that the

clothes Appellant wore did not match the victim’s description. First, we note

that there was only an incidental reference to Appellant’s clothes at the first

PCRA hearing. N.T. (PCRA Hearing I), 10/24/17, at 87. However, this issue

was explored in more detail at the second hearing, and Appellant, who

continued to represent himself, asked Attorney Kalinowski why the clothes

were not shown to the jury. N.T. (PCRA Hearing II), 1/9/18, at 92. In

response to Appellant’s question, Attorney Kalinowski could not recall if the

clothes had been used as an exhibit. Id. However, Appellant asked a follow-

up question asserting that “You read them off.” Id. at 93.

Our independent review of the record reveals that this statement refers

to a stipulation at trial. Rather than exhibit the clothes that Appellant wore at

the time of his arrest, which were also the clothes that he allegedly wore

during the commission of the crime, Attorney Kalinowski stipulated to having

the trial court read the prison’s inventory of Appellant’s clothing. N.T. (Trial),

11/10-12/14, at 259. During Appellant’s intake at the prison, his clothes were

removed and an inventory was created that described Appellant’s clothes in

detail. Id. at 258. After the parties stipulated, the trial court read the

inventory into the record for the jury to hear. Id. at 259. Counsel’s decision

for this course of action was that the description of the clothing in the

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inventory did not match the victim’s description of the perpetrator’s clothes,

and Attorney Kalinowski referred to the stipulation and the discrepancy in his

closing. Id. at 269. Therefore, although Attorney Kalinowski did not

physically display the clothes to the jury, the prison inventory describing the

clothing was read to the jury and the differences were highlighted. We cannot

conclude that this was an unreasonable trial strategy, and we do not conclude

Attorney Kalinowski was ineffective for choosing the stipulation over

displaying the clothes to the jury.

In his final issue, Appellant asserts that Attorney Kalinowski was

ineffective in preventing Appellant from participating in jury selection.

However, Attorney Kalinowski explained that Appellant sat directly next to him

during jury selection. N.T. (PCRA Hearing I), 10/24/17, at 87.

Attorney Kalinowski testified that Appellant asked him no questions. Id.

Attorney Kalinowski also explained that he used all of his preemptory

challenges in selecting the jury, the Commonwealth then utilized all of its

challenges, and then they selected the jury that sat for Appellant’s trial. Id.

at 89. We conclude that there is nothing in the record that supports

Appellant’s claim that Attorney Kalinowski prevented Appellant from

participating in jury selection, and we agree this claim is meritless.

After review, we agree with Appellant’s PCRA counsel, Attorney Lynott,

that there is no merit to any of the issues Appellant raised. As noted above,

in the October 25, 2018 order, the PCRA court granted relief on Appellant’s

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challenge to the legality of his sentence, but it denied relief on all of the other

issues. After our independent review, we discern nothing unreasonable with

Attorney Kalinowski’s decisions or trial strategy, and we cannot conclude that

Attorney Kalinowski provided ineffective assistance of counsel. See Ervin,

766 A.2d at 862-863 (stating that in order to satisfy the second prong of the

Pierce test, counsel’s chosen strategy must be so unreasonable that no

competent lawyer would have chosen it).

For the reasons set forth above, we conclude that the PCRA court’s order

is supported by the record and free of legal error. Having determined that

Appellant is not entitled to PCRA relief on the issues raised on appeal, we

affirm the order of the PCRA court and relinquish jurisdiction, which will allow

the trial court to proceed with resentencing Appellant in conformity with the

PCRA court’s October 25, 2018 order. Thus, we are constrained to deny

counsel’s application to withdraw and direct Attorney Lynott to represent

Appellant during resentencing.

Order affirmed. Attorney Lynott’s application to withdraw as counsel

denied. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 02/24/2020

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