Com. v. Redd, S.

• Court: Superior Court of Pennsylvania
• Decided: March 3, 2025
• Docket: 744 WDA 2024
• Status: Unpublished

Opinion

J-A05011-25

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : SHAWNQUEZ REDD : : Appellant : No. 744 WDA 2024

Appeal from the PCRA Order Entered June 5, 2024 In the Court of Common Pleas of Beaver County Criminal Division at No(s): CP-04-CR-0001912-2021

BEFORE: MURRAY, J., KING, J., and FORD ELLIOTT, P.J.E. *

MEMORANDUM BY MURRAY, J.: FILED: March 3, 2025

Shawnquez Redd (Appellant) appeals, pro se, from the order dismissing

his first petition filed pursuant to the Post Conviction Relief Act (PCRA). 42

Pa.C.S.A. §§ 9541-9546. We affirm.

On August 29, 2022, Appellant pled guilty to one count each of

possession of a firearm by a prohibited person, theft by unlawful taking, and

flight to avoid apprehension.1 On September 28, 2022, the trial court imposed

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* Retired Senior Judge assigned to the Superior Court.

1 18 Pa.C.S.A. §§ 6105(a)(1), 3921(a), 5126(a). J-A05011-25

an aggregate sentence of five to ten years in prison.2 Appellant did not file

post-sentence motions or a direct appeal.

On August 16, 2023, Appellant timely filed the instant pro se PCRA

petition, his first. See 42 Pa.C.S.A. § 9545(b)(1) (all PCRA petitions must be

filed within one year of the date the judgment of sentence becomes final).

Appellant asserted several claims, including his plea counsel’s ineffectiveness

for 1) coercing Appellant to enter a guilty plea; and 2) failing to interview

witnesses or investigate Appellant’s claim of his innocence. See PCRA

Petition, 8/16/23, at 2, 4. Appellant also stated he was indigent and requested

the appointment of counsel. Id. at 8. That same day, the PCRA court

appointed Steven Valsamidis, Esquire (Attorney Valsamidis), to represent

Appellant. Attorney Valsamidis subsequently filed a petition to withdraw as

Appellant’s counsel, and requested the appointment of new counsel, asserting

a conflict of interest. Petition to Withdraw, 8/23/23, ¶¶ 5-7.

On September 6, 2023, the PCRA court entered an order granting

Attorney Valsamidis permission to withdraw, and appointing Sherri Hurst,

Esquire (Attorney Hurst), to represent Appellant.

2 The trial court imposed this sentenceto run concurrently with Appellant’s sentence in another case, CP-04-CR-1296-2021 (Case 1296). Appellant filed a separate, untimely PCRA petition in Case 1296, which is not implicated in the instant appeal. See PCRA Court Order and Notice of Intent, 5/7/24, at 1- 2 (discussing Case 1296).

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On January 16, 2024, Attorney Hurst filed a petition to withdraw as

Appellant’s counsel, contemporaneously with a “no-merit” letter, pursuant to

Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and Commonwealth

v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).3 The no-merit letter

explained that Appellant raised the following claims in his pro se PCRA

petition: “[The Commonwealth] violated [Appellant’s] Constitutional rights;

his [guilty] plea was unlawful; his sentence was unlawful; his [plea counsel]

rendered ineffective assistance[;] and finally, that newly discovered evidence

3 This Court has stated that

[t]he Turner/Finley decisions provide the manner for post- conviction counsel to withdraw from representation. The holdings of those cases mandate an independent review of the record by competent counsel before a PCRA court or appellate court can authorize an attorney’s withdrawal. The necessary independent review requires counsel to file a “no-merit” letter detailing the nature and extent of [her] review and list each issue the petitioner wishes to have examined, explaining why those issues are meritless. The PCRA court, or an appellate court if the no-merit letter is filed before it, then must conduct its own independent evaluation of the record and agree with counsel that the petition is without merit.

Commonwealth v. Rykard, 55 A.3d 1177, 1184 (Pa. Super. 2012) (some citations omitted); see also Commonwealth v. Friend, 896 A.2d 607, 614 (Pa. Super. 2006) (PCRA counsel requesting to withdraw must advise the petitioner of counsel’s decision to withdraw and the petitioner’s right to proceed pro se or with the assistance of privately retained counsel if counsel’s petition to withdraw is granted). In the instant appeal, our independent review supports the PCRA court’s finding that Attorney Hurst has complied with each of the foregoing requirements. See Petition to Withdraw, 1/16/24, ¶¶ 4-7.

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has been discovered.”4 No-Merit Letter, 1/16/24, at 5 (citing PCRA Petition,

8/16/23, at 1-4). Attorney Hurst thoroughly explained her reasons for

determining why each of the PCRA claims lacks merit, and opined Appellant

was entitled to no PCRA relief. See id. at 5-10. Attorney Hurst concluded

that “[b]ased upon [her] extensive and exhaustive review … of case law, …

this case does not have a cognizable issue that can be raised in a [PCRA]

petition.” Id. at 9.

Pertinent to the instant appeal, Attorney Hurst opined that if the PCRA

court were to grant her permission to withdraw, “[Appellant] would not be

entitled to have new counsel appointed to represent him [in connection with

his PCRA petition,] nor on any appeal that might ensue[.]” Petition to

Withdraw, 1/16/24, ¶ 8 (citation omitted).

Appellant filed a pro se response to Attorney Hurst’s petition to

withdraw/no-merit letter on March 25, 2024. Appellant asserted Attorney

Hurst 1) rendered ineffective assistance; 2) failed to adequately communicate

with Appellant; 3) did not research the case and Appellant’s claim of his actual

innocence; and 4) failed to acknowledge or address Appellant’s purported

mental disabilities. Pro Se Response, 3/25/24, ¶¶ 6-13, 17-23.

4 We collectively hereinafter refer to Appellant’s claims in his PCRA petition as

the “PCRA claims.” The substance of the PCRA claims is not relevant to this appeal.

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On May 7, 2024, the PCRA court issued a Pa.R.Crim.P. 907 Notice (907

Notice) of its intent to dismiss Appellant’s PCRA petition without an evidentiary

hearing, and an accompanying order granting Attorney Hurst’s petition to

withdraw. In the 907 Notice, the PCRA court thoroughly detailed its reasons

for finding that each of Appellant’s PCRA claims lack merit. See 907 Notice,

5/7/24, at 4-8. The PCRA court concluded that

[the PCRA] claims … are without merit for the reasons set forth in [Attorney Hurst’s] no-merit letter and the reasons specified in this … [907] Notice…. [Appellant] may file a written response proceeding pro se without counsel, or with counsel if [Appellant] elects to retain private counsel[.]

Id. at 9; see also id. at 2-3 (detailing the no-merit letter and explaining

Attorney Hurst’s compliance with Turner/Finley); see also Order, 5/7/24, ¶

2.

Appellant filed a pro se Response to the 907 Notice, requesting, inter

alia, that the PCRA court “continue [the] PCRA proceeding and appoint new

counsel” to file an amended PCRA petition. 907 Notice Response, 5/29/24, ¶

1. On June 5, 2024, the PCRA court dismissed Appellant’s PCRA petition,

without conducting a hearing. Appellant timely filed a pro se notice of appeal.5

Appellant presents the following issue for review:

5 The PCRA court did not order Appellant to file a Pa.R.A.P. 1925(b) concise

statement of errors complained of on appeal. The PCRA court issued a Rule 1925(a) opinion on June 28, 2024, stating that it relied upon the reasoning set forth in its 907 Notice. PCRA Court Opinion, 6/28/24, at 1.

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Did the PC[RA] court err when it dismissed Appellant’s PCRA petition without provid[]ing counsel for his first, timely 2023 PCRA proceeding and throughout the entirety of this appeal?

Appellant’s Brief at 4 (capitalization modified).6

We review the dismissal of a PCRA petition to determine whether the

record supports the PCRA court’s findings and whether its order is free of legal

error. Commonwealth v. Fears, 86 A.3d 795, 803 (Pa. 2014). “The PCRA

court’s findings will not be disturbed unless there is no support for the findings

in the certified record.” Commonwealth v. Gibson, 318 A.3d 927, 933 (Pa.

Super. 2024) (citation omitted). Moreover, a petitioner is not entitled to a

PCRA hearing as a matter of right. Commonwealth v. Williams, 244 A.3d

1281, 1287 (Pa. Super. 2021). Rather, a PCRA court can decline to hold a

hearing if there is no genuine issue concerning any material fact, the petitioner

is not entitled to relief, and no purpose would be served by any further

proceedings. Id.

Appellant presents a single claim: the PCRA court erred in “dismiss[ing]

Appellant’s PCRA Petition without appointing counsel.”7 Appellant’s Brief at

6 The Commonwealth did not file an appellate brief, despite being granted an

extension of time. See Order, 10/29/24.

7 The PCRA court did not specifically address this claim in its Pa.R.A.P. 1925(a)

opinion or 907 Notice. However, in the 907 Notice, the PCRA court rejected Appellant’s claim of Attorney Hurst’s ineffectiveness, based on its conclusion that Appellant’s PCRA claims lacked merit. 907 Notice, 5/7/24, at 8 (citing Commonwealth v. Montalvo, 205 A.3d 274, 286 (Pa. 2019) (“[C]ounsel cannot be deemed ineffective for failing to raise a meritless claim.”)).

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12. Appellant points out that following Attorney Hurst’s withdrawal pursuant

to Turner/Finley, he repeatedly asked the PCRA court to appoint him new

counsel. Id. at 11-12; see also id. at 12 (“Appellant agreed that Attorney

Hurst should be permitted to withdraw due to her incompetence on

investigating Appellant’s case8 and [Appellant] requested the appointment of

counsel.” (footnote added)). Appellant asserts he has a “rule[-]based right to

counsel throughout his entire appeal process pursuant to Pa.R.Crim.P.

904(C)[.]” Appellant’s Brief at 12 (citation modified); see also id. (“Appellant

never waived his right to counsel pursuant to Pa.R.Crim.P. 121(A)(1).”

(citation modified)).

Rule 904(C) provides, in pertinent part, that

when an unrepresented defendant satisfies the judge that the defendant is unable to afford or otherwise procure counsel, the judge shall appoint counsel to represent the defendant on the defendant’s first petition for post-conviction collateral relief.

Pa.R.Crim.P. 904(C); see also Commonwealth v. Kelsey, 206 A.3d 1135,

1139 (Pa. Super. 2019) (stating that under Rule 904(C), an “indigent

8 Aside from Appellant’s undeveloped allegation of Attorney Hurst’s “incompetence on investigating Appellant’s case,” Appellant provides no support for his claim. Appellant’s Brief at 12. Nor did he raise such issue in his Pa.R.A.P. 2116(a) statement of questions involved. Consequently, Appellant did not preserve his ineffectiveness claim for appellate review. See Commonwealth v. Armolt, 294 A.3d 364, 379 (Pa. 2023) (“[M]ere issue spotting without sufficient analysis or legal support precludes appellate review.”); Commonwealth v. Garland, 63 A.3d 339, 342 (Pa. Super. 2013) (finding waiver of appellant’s issue and citing Rule 2116(a), which provides that “[n]o questions will be considered unless they are stated in the statement of questions involved or are fairly suggested thereby.”).

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petitioner’s right to counsel must be honored regardless of the merits of his

underlying claims … so long as the petition in question is his first.” (citations

omitted)). Rule 904 further provides that “the appointment of counsel shall

be effective throughout the post-conviction collateral proceedings, including

any appeal from disposition of the petition for post-conviction collateral relief.”

Pa.R.Crim.P. 904(F)(2); see also Commonwealth v. Smith, 121 A.3d 1049,

1053 (Pa. Super. 2015).

This Court has explained that

[“a] criminal defendant has a right to representation of counsel for purposes of litigating a first PCRA petition through the entire appellate process.” Commonwealth v. Robinson, 970 A.2d 455, 457 (Pa. Super. 2009) (en banc) (citations omitted); see also Pa.R.Crim.P. 904(C). However, this Court has recognized that there are limits on this rule-based right.

[W]hen counsel has been appointed to represent a petitioner in [PCRA] proceedings as a matter of right under [Rule 904(C),] and when that right has been fully vindicated by counsel being permitted to withdraw under the procedure authorized in Turner[/Finley], new counsel shall not be appointed and the petitioner, or appellant, must thereafter look to his or her own resources for whatever further proceedings there might be.

Commonwealth v. Maple, 559 A.2d 953, 956 (Pa. Super. 1989) (footnote omitted[; emphasis added]).

Commonwealth v. Gibson, 318 A.3d 927, 933 (Pa. Super. 2024) (emphasis

added; some citations modified). But see Pa.R.Crim.P. 904(E) (providing a

court is permitted to appoint counsel to represent a defendant “whenever the

interests of justice require it.”).

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PCRA counsel is permitted to withdraw at any stage of the collateral

proceedings if they comply with Turner/Finley. Commonwealth v. Bishop,

645 A.2d 274, 275 (Pa. Super. 1994). In that circumstance, a “petitioner then

may proceed pro se, by privately retained counsel, or not at all.” Id. (citation

omitted); see also Rykard, 55 A.3d at 1182, 1183 n.1 (citing Maple, 559

A.2d at 956, and holding that the PCRA court improperly appointed new

counsel for petitioner, where the PCRA court had permitted petitioner’s prior

PCRA counsel to withdraw under Turner/Finley).

This Court’s recent decision in Gibson, supra is instructive. There, the

PCRA court 1) dismissed the petitioner’s (Petitioner) first, timely PCRA

petition, after issuing a Rule 907 notice; and 2) granted the request of

Petitioner’s appointed PCRA counsel (PCRA Counsel) to withdraw, pursuant to

Turner/Finley. Gibson, 318 A.3d at 932; see also id. (observing PCRA

Counsel’s Turner/Finley petition “addressed [Petitioner’s] numerous claims

of ineffective assistance of counsel and concluded that none had merit.”).

Petitioner subsequently requested the appointment of new counsel, which the

PCRA court denied. Id. The PCRA court thereafter dismissed the PCRA

petition without a hearing, and Petitioner appealed to this Court. Id.

On appeal, Petitioner claimed, inter alia, “the PCRA court erred in

denying his request to appoint new appellate counsel.” Id. at 933; see also

id. (explaining the law regarding Pa.R.Crim.P. 904(C)). We rejected

Petitioner’s claim and held that “once the [PCRA] court permits PCRA counsel

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to withdraw after filing a Turner/Finley ‘no-merit’ letter, an appellant is no

longer entitled to the appointment of counsel on appeal.” Id. (emphasis

added) (quoting Commonwealth v. Shaw, 217 A.3d 265, 268 n.3 (Pa.

Super. 2019)). The Gibson Court further stated that Petitioner had

failed to raise any specific reason either that [PCRA C]ounsel’s withdrawal was improper, or why [PCRA C]ounsel was ineffective. [Petitioner] has presented no basis upon which to disturb the PCRA court’s ruling on PCRA [C]ounsel’s motion to withdraw pursuant to Turner/Finley.

Gibson, 318 A.3d at 933; see also id. (“[T]here were no meritorious issues”

that Petitioner could raise).

Instantly, as set forth above, the PCRA court granted Attorney Hurst’s

petition to withdraw after correctly determining she had complied with

Turner/Finley. Appellant’s sole claim of error thus lacks merit, as he was no

longer entitled to counsel after the PCRA court permitted Attorney Hurst to

withdraw under Turner/Finley. See Gibson, 318 A.3d at 933; Shaw, 217

A.3d at 268 n.3; Maple, 559 A.2d at 956. Further, like the situation in

Gibson, 1) Appellant “has presented no basis upon which to disturb the PCRA

court’s ruling on [Attorney Hurst’s] motion to withdraw pursuant to

Turner/Finley”; and 2) “there were no meritorious issues” that Appellant

could raise. Gibson, 318 A.3d at 933. Finally, as all of Appellant’s PCRA

claims lack merit, it cannot be said that “the interests of justice require[d]”

the appointment of new counsel following Attorney Hurst’s withdrawal, after

her full compliance with Turner/Finley. Pa.R.Crim.P. 904(E).

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Based on the foregoing, we affirm the PCRA court’s order dismissing

Appellant’s first PCRA petition.

Order affirmed.

DATE: 03/03/2025

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