Com. v. Whitehead, Y.

• Court: Superior Court of Pennsylvania
• Decided: October 29, 2024
• Docket: 2402 EDA 2023
• Status: Unpublished

Opinion

J-S31034-24

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : YUSEF WHITEHEAD : : Appellant : No. 2402 EDA 2023

Appeal from the PCRA Order Entered August 14, 2023 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0501681-1997

BEFORE: BOWES, J., McLAUGHLIN, J., and BECK, J.

MEMORANDUM BY BECK, J.: FILED OCTOBER 29, 2024

Yusef Whitehead (“Whitehead”) appeals from the order dismissing his

petition filed pursuant to the Post Conviction Relief Act (“PCRA”). 1

Whitehead’s counsel, Attorney Todd M. Mosser (“Counsel”), has filed a petition

to withdraw representation and an accompanying brief in accordance with

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

v. Finley, 550 A.2d 213 (Pa. Super. 1998) (en banc). After review, we grant

Counsel’s petition to withdraw and affirm the order dismissing Whitehead’s

PCRA petition.

On March 19, 1997, Whitehead, then fifteen years old, and his co-

defendant, Timothy Rose, abducted, raped, robbed, and murdered Calma

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1 42 Pa.C.S. §§ 9541-9546. J-S31034-24

Calida. On March 27, 1997, the Commonwealth charged Whitehead with

murder and related offenses. The case proceeded to a jury trial, after which

the jury convicted Whitehead of first-degree murder, rape, robbery, robbery

of a motor vehicle, kidnapping, and conspiracy to commit murder. The trial

court sentenced Whitehead to life imprisonment without parole for the first-

degree murder conviction, and concurrent sentences for the remaining

convictions.2 Whitehead did not file a direct appeal.

On June 25, 2010, Whitehead filed a PCRA petition, which was amended

on March 8, 2016, that challenged the legality of his life imprisonment without

parole sentence based on Miller v. Alabama, 567 U.S. 460, 478 (2012)

(holding that a sentencing scheme mandating the imposition of a sentence of

life in prison without parole violates the Eighth Amendment), and

Montgomery v. Louisiana, 577 U.S. 190, 212 (2016) (concluding that

Miller announced a substantive rule of constitutional law that applied

retroactively on collateral review). On August 28, 2018, the PCRA court

granted Whitehead’s PCRA petition and vacated his sentence.

The trial court then resentenced Whitehead to fifty years to life

imprisonment for first-degree murder and concurrent terms of five to ten

2 The trial court ordered Whitehead’s sentence to be served consecutively to

sentences previously imposed in unrelated criminal matters. Specifically, at the time of his sentencing in the underlying case, Whitehead was already serving a sentence of seventeen and one-half to thirty-five years in prison for rape and aggravated assault convictions.

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years in prison for the other offenses. The trial court further ordered that

Whitehead’s sentence would be served concurrently to the unrelated

sentences he was already serving. Whitehead did not file a post-sentence

motion but filed a direct appeal to this Court.

This Court affirmed the Whitehead’s judgment of sentence, finding that

his challenge to the discretionary aspects of sentencing was waived for failing

to raise the issue in a post-sentence motion or at sentencing.

Commonwealth v. Whitehead, 2820 EDA 2018, 2020 WL 1042643 (Pa.

Super. Mar. 3, 2020) (non-precedential decision). On April 12, 2022, our

Supreme Court denied his petition for allowance of appeal. Commonwealth

v. Whitehead, 276 A.3d 702 (Pa. 2022).

On January 18, 2023, Whitehead filed a pro se PCRA petition. The PCRA

court appointed Counsel, who filed an amended petition, arguing that

resentencing counsel, Attorney Jonathon Krinick, was ineffective for failing to

file a post-sentence motion challenging the discretionary aspects of his

sentence after he was resentenced. The PCRA court held an evidentiary

hearing on Whitehead’s PCRA petition, at which Attorney Krinick and

Whitehead testified. The PCRA court then dismissed the petition. Whitehead

filed a timely appeal. The PCRA court directed Whitehead to file a 1925(b)

Statement, which Counsel, on behalf of Whitehead, failed to do.

On appeal, Counsel has filed a Turner/Finley no-merit brief and

petition to withdraw. Whitehead filed a pro se response to the Turner/Finley

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brief. Before addressing the merits of either filing, we must consider whether

Counsel met the technical requirements of Turner/Finley. Commonwealth

v. Muzzy, 141 A.3d 509, 510 (Pa. Super. 2016). To be permitted to withdraw

from PCRA representation, counsel 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 counsel that the claims are without merit, the court will permit counsel to withdraw and deny relief.

Id. at 510-11 (citations omitted and formatting altered).

In his Turner/Finley brief, Counsel describes the nature and extent of

his review, identifies the issue that Whitehead seeks to raise, and explains

why the issue lacks merit. Additionally, Counsel provided Whitehead notice

of his intention to withdraw from representation, a copy of the Turner/Finley

brief and petition to withdraw as counsel and advised Whitehead of his

immediate right to proceed pro se or with privately retained counsel in lieu of

his representation. Accordingly, we conclude that Counsel has complied with

the requirements necessary to withdraw as counsel. We now independently

review Whitehead’s claim that “prior resentencing counsel was ineffective for

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failing to preserve a challenge to the discretionary aspect of [Whitehead’s]

sentence.” Turner/Finley Brief at 2; see also Pro Se Response to

Turner/Finley Brief at 2.

“Our review of a PCRA court’s decision is limited to 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. Wilson,

273 A.3d 13, 18 (Pa. Super. 2022) (citation omitted). Appellate courts are

bound by the PCRA court’s credibility determinations if they are supported by

the record. Commonwealth v. Rizor, 304 A.3d 1034, 1058 (Pa. 2023). “An

appellate court cannot substitute its judgment for that of the finder of fact.”

Commonwealth v. Collins, 70 A.3d 1245, 1251 (Pa. Super. 2013). “With

respect to the PCRA court’s legal considerations, we apply a de novo standard

of review.” Commonwealth v. Lopez, 249 A.3d 993, 998 (Pa. 2021)

(citation omitted).

When faced with an ineffective assistance of counsel claim, “we note

that counsel is presumed to be effective and the burden of demonstrating

ineffectiveness rests on appellant.” Commonwealth v. Rivera, 10 A.3d

1276, 1279 (Pa. Super. 2010) (citation omitted). To establish an

ineffectiveness claim, a PCRA petitioner must plead and prove, by a

preponderance of evidence, that “(1) the underlying claim has arguable merit;

(2) counsel had no reasonable basis for his or her action or inaction; and (3)

the petitioner suffered prejudice as a result of counsel’s action or inaction.”

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Commonwealth v. Felix, 303 A.3d 816, 819 (Pa. Super. 2023) (citation and

quotation marks omitted). “A failure to satisfy any prong of the test for

ineffectiveness will require rejection of the claim.” Id. “To demonstrate

prejudice, the petitioner must show that there is a reasonable probability that,

but for counsel’s unprofessional errors, the result of the proceedings would

have been different.” Commonwealth v. Spotz, 84 A.3d 294, 312 (Pa.

2014) (citation and quotation marks omitted).3

The record reflects that Attorney Krinick testified that he and Whitehead

met in a booth next to the courtroom after sentencing. N.T., 8/14/2023, at

17, 22, 25. Attorney Krinick indicated that he reiterated Whitehead’s rights

to reconsideration and appeal, and asked Whitehead whether he wanted to

file a post-sentence motion. Id. at 18. According to Attorney Krinick,

Whitehead stated that he did not want to file a post-sentence motion or a

direct appeal. Id. 18, 22. Attorney Krinick did not hear from Whitehead until

after the ten-day period for filing a post-sentence motion expired. Id. at 20.

Attorney Krinick indicated that Whitehead sent a letter requesting that he file

an appeal, and then proceeded to file a pro se notice of appeal before Attorney

Krinick had the opportunity to file one on his behalf. Id. at 20, 22-23; see

also id. at 20, 23.

3 “[C]ounsel’s failure to file post-sentence motions [does] not fall within the

narrow ambit of ineffectiveness claims requiring no finding of prejudice.” Commonwealth v. Corley, 31 A.3d 293, 296 (Pa. Super. 2011).

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Conversely, Whitehead testified that the sentencing judge told Attorney

Krinick to file a post-sentence motion at the end of the resentencing hearing.

Id. at 33, 36, 39, 42. Whitehead, however, admits that the transcript from

the resentencing hearing does not include this statement. Id. at 39.

Whitehead indicated that it was his understanding that Attorney Krinick would

file a post-sentence motion. Id. at 33. Whitehead stated that his mother

contacted Attorney Krinick to ascertain whether anything had been filed. Id.

at 35.

The PCRA court found Attorney Krinick’s testimony to be credible and

Whitehead to be not credible. See PCRA Court Opinion, 11/8/2023, at 3, 6.

“[A]ny conflict in the testimony goes to the credibility of the witnesses and is

solely to be resolved by the factfinder.” Commonwealth v. Page, 59 A.3d

1118, 1130 (Pa. Super. 2013).

As Whitehead concedes, there is nothing in the record to support his

claim that the trial court ordered Attorney Krinick to file a post-sentence

motion, but there is support for Attorney Krinick’s statement that, following

resentencing, he met with Whitehead “in the booth.” See N.T., 8/28/2018,

at 104. Because the PCRA court’s credibility determination is supported by

the record, see Rizor, 304 A.3d at 1058, Whitehead’s claim has no arguable

merit and Attorney Krinick had reasonable basis for not filing a post-sentence

motion. See Commonwealth v. Velasquez, 563 A.2d 1273, 1275 (Pa.

Super. 1989) (concluding appellant failed to establish that he instructed

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counsel to file the requisite motion counsel and therefore, counsel cannot “be

deemed ineffective for failing to do what he was not requested to do”).4

Accordingly, Whitehead fails to establish that Attorney Krinick was ineffective.

See Felix, 303 A.3d at 819.

In response to the Turner/Finley Brief, Whitehead baldly asserts that

Counsel was ineffective for failing to file a 1925(b) statement, thus waiving

Whitehead’s ability to preserve his issue on appeal. See Pro Se Response to

Turner/Finley Brief at 3. Whitehead further contends that Counsel’s

ineffectiveness resulted in a denial of his due process rights guaranteed by

the Fourteenth Amendment. Id. Whitehead also states that Counsel was

ineffective because his claim against Attorney Krinick had merit, and Counsel

exacerbated the prejudice he sustained by filing a no-merit brief. Id.

Our Supreme Court recently held that the proper procedure for enforcing

the right to effective PCRA counsel is by “allowing a petitioner to raise claims

of ineffective PCRA counsel at the first opportunity [(after obtaining new

4 We further note that Whitehead provides no discussion that the trial court

abused its discretion in imposing the new sentence or that the result of appellate review would have been different had Attorney Krinick filed the post- sentence motion. In fact, the trial court set forth extensive reasons for the imposition of the new sentence, including its consideration of Whitehead’s youth and attendant circumstances. See Trial Court Opinion, 11/9/2018, at 5-7; see also Commonwealth v. Felder, 269 A.3d 1232, 1245 (Pa. 2022) (stating that Miller “mandated only that a sentencer follow a certain process — considering an offender’s youth and attendant characteristics — before imposing a life-without-parole sentence.”) (citation omitted).

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counsel or proceeding pro se)], even if on appeal.” Commonwealth v.

Bradley, 261 A.3d 381, 405 (Pa. 2021).

In some instances, the record before the appellate court will be sufficient to allow for disposition of any newly-raised ineffectiveness claims. However, in other cases, the appellate court may need to remand to the PCRA court for further development of the record and for the PCRA court to consider such claims as an initial matter. Consistent with our prior case law, to advance a request for remand, a petition would be required to provide more than mere boilerplate assertions of PCRA counsel’s ineffectiveness; however, where there are material facts at issue concerning claims challenging counsel’s stewardship and relief is not plainly unavailable as a matter of law, the remand should be afforded.

Id. at 402 (citations, brackets, and quotation marks omitted). In other words,

“appellate courts will have the ability to grant or deny relief on straightforward

claims, as well as the power to remand to the PCRA court for the development

of the record.” Id. at 403.

Whitehead has not established each prong of the ineffectiveness test,

and instead presents bald allegations of PCRA counsel’s ineffectiveness.

Indeed, the failure to file a Rule 1925(b) concise statement did not render his

claim waived on appeal, as this Court was required to review it based upon

the filing of the Turner/Finley brief. Moreover, Whitehead has not

demonstrated, through any reasoned analysis, that Counsel’s filing of a

Turner/Finley brief violated his right to due process. To the contrary, as

stated above, Counsel correctly concluded that Whitehead’s claim of

ineffectiveness of counsel was meritless. Therefore, we conclude that

Whitehead is not entitled to relief on his claims of PCRA counsel’s

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ineffectiveness. See Bradley, 261 A.3d at 402 (noting that boilerplate

allegations of ineffectiveness do not entitle a petitioner to relief).

Petition to withdraw as counsel granted. Order affirmed.

Date: 10/29/2024

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