J-S32004-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

DAVID LAUSELL, JR. 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 825 MDA 2022

Appeal from the PCRA Order Entered May 20, 2022

In the Court of Common Pleas of Lancaster County 

Criminal Division at No(s): CP-36-CR-0003033-2016

COMMONWEALTH OF PENNSYLVANIA

v.

DAVID LAUSELL, JR. 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 826 MDA 2022

Appeal from the PCRA Order Entered May 20, 2022

In the Court of Common Pleas of Lancaster County 

Criminal Division at No(s): CP-36-CR-0003034-2016

BEFORE: PANELLA, P.J., BENDER, P.J.E., and LAZARUS, J.

MEMORANDUM BY PANELLA, P.J.: FILED: NOVEMBER 14, 2022

David Lausell, Jr., filed separate appeals from the orders

1 denying his 

first petition for relief filed pursuant to the Post Conviction Relief Act (“PCRA”). 

See 42 Pa.C.S.A. §§ 9541-9545. Additionally, Lausell’s counsel, Daniel C. 

Bardo, has filed an application to withdraw representation and a brief in 

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1 This Court consolidated Lausell’s appeals sua sponte on July 13, 2022.
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accordance with Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and 

Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).2 We 

grant Attorney Bardo’s application to withdraw and affirm the orders denying 

Lausell’s PCRA petition.

On June 3, 2016, a confidential informant made a controlled purchase 

of 20 grams of heroin from Lausell with money provided by the Lancaster 

County Drug Task Force. The task force then obtained a sealed warrant, 

supported by an affidavit of probable cause, to place a GPS tracking device on 

Lausell’s vehicle. Subsequently, the task force secured a search warrant for 

Lausell’s residence that he shared with his girlfriend, Jaelle Ndamage. While 

executing the warrant, the police arrested Lausell outside of the residence. 

Thereafter, the police seized property in Lausell’s possession, including a car 

key belonging to a 2006 Ford Taurus, which was parked at Lausell’s residence. 

After obtaining a search warrant for the Taurus, the police discovered a 9-

millimeter Glock semi-automatic pistol and a Ruger .357 revolver in the trunk. 

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2 We note that Attorney Bardo has filed a brief pursuant to Anders v. 

California, 386 U.S. 738 (1967). When counsel seeks to withdraw from 

representation on collateral appeal, as here, Turner and Finley apply. See 

Commonwealth v. Widgins, 29 A.3d 816, 817 n.2 (Pa. Super. 2011). On its 

own, counsel’s mistake is not fatal to his application to withdraw, though, as 

we have held that “[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.” Id. (citation omitted). Therefore, our practice in these situations is to 

accept counsel’s Anders brief and evaluate whether it substantially satisfies 

Turner/Finley criteria. See id. at 819.
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The police also found approximately 540 grams of suspected heroin, $4,703 

in cash, a digital scale, and drug paraphernalia in Lausell’s residence. 

At trial court docket 3033-2016, the Commonwealth charged Lausell 

with two counts each of persons not to possess, use or control firearms and 

firearms not to be carried without a license, and at docket 3034-2016, the 

Commonwealth charged Lausell with possession with intent to deliver a 

controlled substance, criminal conspiracy, and possession of drug 

paraphernalia. 

Lausell filed a motion to suppress physical evidence and statements, 

claiming the searches of him and his property were illegal. The trial court 

denied the motion. Directly thereafter, the trial court held a bench trial on the 

drug charges and found Lausell guilty of those charges. Subsequently, a jury 

trial was held on the gun charges, and the jury found Lausell guilty on two

counts of persons not to possess firearms. The trial court sentenced Lausell to 

an aggregate sentence of 25 to 50 years in prison. This Court affirmed the 

judgments of sentence, and the Supreme Court of Pennsylvania denied 

allowance of appeal. See Commonwealth v. Lausell, 408 MDA 2018 (Pa. 

Super. filed Nov. 15, 2018) (unpublished memorandum), appeal denied, 208 

A.3d 459 (Pa. 2019).

On May 29, 2020, Lausell filed a timely pro se PCRA petition at the two 

docket numbers, raising various ineffective assistance of trial counsel claims. 

The PCRA court appointed Attorney Bardo as counsel. Attorney Bardo initially 
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filed a no-merit letter and an application to withdraw with the PCRA court. 

Following its independent review, the PCRA court issued a Pa.R.Crim.P. 907 

notice and gave Lausell 30 days to respond. In his response, Lausell, for the 

first time, argued that his trial counsel was ineffective for failing to obtain the 

sealed warrant allowing for the placement of GPS monitoring on his vehicle 

and that if he had the warrant, the outcome of the proceeding would have 

been different. As a result, the PCRA court directed Attorney Bardo to review 

this new issue. Subsequently, Attorney Bardo filed an amended PCRA petition.

On August 4, 2021, the PCRA court held an evidentiary hearing, at which trial 

counsel and Lausell testified.

Following the hearing, on December 16, 2021, despite being counseled, 

Lausell, pro se, filed a motion seeking leave to amend his PCRA petition. 

Specifically, Lausell sought to raise an after-discovered evidence claim, 

arguing that a police officer for the Lancaster Police, who was not involved the 

instant case, committed various acts of misconduct and that such acts cast 

doubts on the conduct of the task force’s detective in this case. However, the 

Clerk of Courts neglected to docket the motion for three months, and it failed 

to send a copy of the motion to Attorney Bardo pursuant to Pa.R.Crim.P. 576.

Subsequently, the PCRA court entered separate orders denying Lausell’s 

petition. Notably, in its opinion in support of the orders, the PCRA court 

addressed the after-discovered evidence claim Lausell raised in his motion to 

amend his PCRA petition. These timely appeals followed.
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On appeal, Attorney Bardo filed a Turner/Finley brief, which raises the 

following questions for our review:

I. Is [Lausell’s] claim that the PCRA court erroneously denied 

relief frivolous?

II. Is [Lausell’s] claim that he is entitled to remand because the 

clerk of courts violated Pa.R.Crim.P. 576(a)(4) frivolous?

Turner/Finley Brief at 4. Additionally, Attorney Bardo filed an application to 

withdraw on August 5, 2022. Lausell did not retain alternate counsel or file 

any response to Attorney Bardo’s application to withdraw.

As an initial matter, we must consider the adequacy of Attorney Bardo’s 

Turner/Finley filings. Independent approval by competent counsel requires 

proof of the following:

1) A “no-merit” letter by PCRA counsel detailing the nature and 

extent of his review;

2) The “no-merit” letter by PCRA counsel listing each issue the 

petitioner wished to have reviewed;

3) The PCRA counsel’s “explanation”, in the “no-merit” letter, of 

why the petitioner’s issues were meritless;

4) The PCRA court conducting its own independent review of the 

record; and 

5) The PCRA court agreeing with counsel that the petition was 

meritless.

Widgins, 29 A.3d at 818 (citation and brackets omitted). Further, counsel 

seeking to withdraw must

forward to the petitioner a copy of the application to withdraw that 

includes (i) a copy of both the “no-merit” letter, and (ii) a 

statement advising the PCRA petitioner that, in the event the trial 
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court grants the application of counsel to withdraw, the petitioner 

has the right to proceed pro se, or with the assistance of privately 

retained counsel. 

Id. (citation omitted).

Here, in his Turner/Finley brief, Attorney Bardo described the extent 

of his review, identified the issues that Lausell sought to raise, and explained 

why the issues lack merit. In addition, Attorney Bardo provided Lausell with 

notice of his intention to seek permission to withdraw from representation, a 

copy of the “no-merit” brief and application to withdraw as counsel and 

advised Lausell of his rights in lieu of representation. Thus, we conclude that 

Attorney Bardo has complied with the requirements necessary to withdraw as 

counsel. We now independently review Lausell’s claims to ascertain whether 

they lack merit.

Our standard of review regarding a PCRA court’s order “is whether the

determination of the PCRA court is supported by the evidence of record and is

free of legal error.” Commonwealth v. Rizvi, 166 A.3d 344, 347 (Pa. Super. 

2017). “The PCRA court’s findings will not be disturbed unless there is no 

support for the findings in the certified record.” Commonwealth v. Garcia, 

23 A.3d 1059, 1061 (Pa. Super. 2011) (citation omitted).

In his first claim, Lausell contends that his trial counsel was ineffective

for failing to secure a copy of the sealed warrant that placed GPS monitoring 

on his vehicle. See Turner/Finley Brief at 9-17. 
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To succeed on an ineffectiveness claim, Lausell must demonstrate 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.” 

Commonwealth v. Brown, 196 A.3d 130, 150 (Pa. 2018) (citation omitted).

Counsel is presumed to be effective, and the burden is on Lausell to prove 

otherwise. See Commonwealth v. Hanible, 30 A.3d 426, 439 (Pa. 2011). A 

failure to satisfy any prong of the test for ineffectiveness will require rejection 

of the claim. See Commonwealth v. Montalvo, 244 A.3d 359, 368 (Pa. 

2021).

Here, at the evidentiary hearing, Lausell’s trial counsel testified that he 

first learned about the GPS tracker at the suppression hearing. See N.T.,

8/4/21, at 24. Lausell’s trial counsel indicated that he did not receive the 

warrant through the discovery process and did not follow up with the 

prosecutor but admits that he should have obtained the warrant. See id. Trial 

counsel further explained that the affidavit of probable cause that authorized 

the search warrants had independent evidence sufficient to authorize the 

warrant. See id. at 26. Trial counsel noted that Lausell’s goal in proceeding 

to an immediate bench trial was to save suppression issues for appeal and to 

avoid a joint trial with his girlfriend, Ndamage, because she faced deportation 

if convicted. See id. at 26-27, 29, 31, 33, 36-38, 48-49; see also id. at 33 

(stating that Lausell’s primary goal was to get Ndamage’s charges dismissed).
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Conversely, Lausell testified that he would have gone to a jury trial if he 

had the sealed GPS monitoring warrant. See id. at 13-15, 19-20. Lausell 

noted that he asked trial counsel about the GPS warrant at his suppression 

hearing, but that trial counsel indicated that there was no such warrant. See 

id. at 11. Lausell further explained that the foundation of the warrant was 

false. See id. at 19-20. Lausell also testified that his strategy involved getting 

Ndamage’s charges dismissed. See id. at 21-23.

Here, Attorney Bardo acknowledges that there was arguable merit to 

Lausell’s underlying ineffectiveness claim, highlighting that the Rules of 

Criminal Procedure require disclosure of sealed warrants. See Turner/Finley 

Brief at 9, 10-11 (citing Pa.R.Crim.P. 573(B)(1)(f) (requiring disclosure of all 

documents); Pa.R.Crim.P. 211(H) (stating that “[w]hen criminal proceedings 

are instituted as a result of the search ... [a] copy of the sealed affidavit(s) 

shall be given to the defendant” prior to his arraignment)). Likewise, Attorney 

Bardo concedes that trial counsel did not have a reasonable basis for failing 

to obtain the sealed warrant. See id. at 11-14; see also N.T., 8/4/21, at 24 

(wherein Lausell’s trial counsel admitted that he should have obtained the 

sealed warrant seeking GPS monitoring). Upon our review, we agree with 

Attorney Bardo’s analysis of the first two prongs of the ineffectiveness test.

Nevertheless, we conclude that Lausell was not prejudiced by trial 

counsel’s failure to obtain the sealed warrant. Notably, to prove prejudice 

when claiming that the jury waiver was not knowing and voluntary due to 
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counsel’s ineffectiveness, “the defendant must demonstrate a reasonable 

probability that the result of the waiver proceeding would have been different 

absent counsel’s ineffectiveness; he does not have to demonstrate that the 

outcome of a jury trial would have been more favorable than the bench trial.” 

Commonwealth v. Mallory, 941 A.2d 686, 702-03 (Pa. 2008).

Here, the PCRA court addressed Lausell’s claim as follows:

The fact that trial counsel did not obtain the GPS warrant ...

could not have caused prejudice to Lausell; the GPS warrant itself 

as well as the two search warrants were indisputably supported 

by probable cause. In fact, with regard to the search warrants, 

testimony at both the suppression hearing and the PCRA hearing 

showed that even if data from the GPS tracking device had been 

excluded from the suppression court’s analysis, the suppression 

motion would still have been denied because the two search 

warrants at issue were supported by adequate independent 

probable cause. ... Thus, even if trial counsel had obtained the GPS 

warrant and successfully challenged its validity at the suppression 

hearing, its invalidation would have had no effect on the 

suppression court’s ultimate finding that the search warrants were 

valid. The suppression motion would still have been denied.

Based on the foregoing analysis, this Court finds it 

implausible that Lausell would have made a different decision 

regarding the type of trial he chose based solely on possession of 

the GPS warrant, and his testimony to the contrary lacks any 

credibility. Even if he had chosen a jury trial, the existence of the 

valid GPS warrant would have had zero effect on the outcome of 

Lausell’s case. Lausell labors under the mistaken belief that had 

he chosen a jury trial, he would have been permitted to challenge 

the validity of the GPS warrant a second time, before his jury. As 

the Court explained during the PCRA Hearing, this [] simply could 

not and would not have occurred. Any use of the GPS warrant 

and/or data at trial would only have weakened Lausell’s defense 

while bolstering the Commonwealth’s case against him. In short, 

Lausell’s ineffective assistance of counsel claim on the issue of the 

GPS warrant fails for lack of prejudice.

PCRA Court Opinion, 5/20/22, at 10-11 (citations and footnote omitted).
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We agree with the PCRA court’s reasoning. Indeed, Lausell’s only proof 

that he was prejudiced by counsel’s ineffectiveness in proceeding with a bench 

trial is his own self-serving testimony that he would not have waived his right 

to jury trial, which the PCRA court found to be incredible. See id. at 11;

Commonwealth v. Staton, 184 A.3d 949, 954 (Pa. 2018) (concluding that 

we are bound by the PCRA court’s credibility determinations where they are 

supported by the record). Instead, the PCRA court found credible counsel’s 

testimony that Lausell wanted to take responsibility for the drugs in order to 

save his girlfriend from deportation. Accordingly, Lausell fails to meet the 

prejudice prong of the ineffectiveness test and his first claim is without merit.

In his next claim, Lausell argues that the Lancaster County Clerk of 

Courts’ office violated Pa.R.Crim.P. 576(a)(4) by failing to docket his motion 

to amend the PCRA petition or forward it to Attorney Bardo. See 

Turner/Finley Brief at 17-18. Lausell further argues that he sought to raise 

an after-discovered evidence claim regarding a Lancaster Police Officer’s 

misconduct. See id. at 18.

Initially, Attorney Bardo notes that he failed to raise this claim in the 

court-ordered Rule 1925(b) concise statement, rendering it waived on appeal. 

See id. at 17. However, waiver is not the appropriate consequence where 

counsel has filed a Turner/Finley brief on appeal. See Pa.R.A.P. 1925(c)(4). 

Further, the PCRA court’s opinion and Attorney Bardo’s Turner/Finley brief 

on appeal both address Lausell’s underlying after-discovered evidence claim, 
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and we have an adequate record to review the appeal. Accordingly, as we 

must determine whether the claim is without merit due to Attorney Bardo’s 

filing of a Turner/Finley brief, we decline to find waiver of this issue.

Criminal Rule of Procedure 576(a)(4) states the following:

In any case in which a defendant is represented by an attorney, if 

the defendant submits for filing a written motion, notice, or 

document that has not been signed by the defendant’s attorney, 

the clerk of courts shall accept it for filing, time stamp it with the 

date of receipt and make a docket entry reflecting the date of 

receipt, and place the document in the criminal case file. A copy 

of the time stamped document shall be forwarded to the 

defendant’s attorney and the attorney for the Commonwealth 

within 10 days of receipt.

Pa.R.Crim.P. 576(a)(4). The comment to Rule 576 provides that such a filing 

does not “trigger any deadline nor require any response.” Pa.R.Crim.P. 576, 

cmt. Indeed, because defendants have no constitutional right to hybrid

representation, see Staton, 184 A.3d at 957, where counsel receives a copy 

of the motion, he or she may present the motion to the trial court for resolution 

or, if appropriate, take no action. See Commonwealth v. Cooper, 27 A.3d 

994, 1007-08 (Pa. 2011); see also Pa.R.Crim.P. 121(g).

Here, both Attorney Bardo and the PCRA court agree that the Clerk of 

Courts failed to docket the motion to amend in a timely manner or forward 

the motion to Attorney Bardo. Nevertheless, despite this error, the PCRA court 

addressed the after-discovered evidence claim in Lausell’s motion to amend. 

Accordingly, we do not find the Clerk of Courts’ error requires a remand. See 

Pa.R.Crim.P. 576, cmt.
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Regarding Lausell’s underlying after-discovered evidence claim, he must 

satisfy a four-part test, which requires him to demonstrate the afterdiscovered evidence

(1) could not have been obtained prior to the conclusion of the 

trial by the exercise of reasonable diligence; (2) is not merely 

corroborative or cumulative; (3) will not be used solely to impeach 

the credibility of a witness; and (4) would likely result in a different 

verdict if a new trial were granted.

Commonwealth v. Small, 189 A.3d 961, 972 (Pa. 2018) (quotation 

omitted). “The test is conjunctive; the [petitioner] must show by a 

preponderance of the evidence that each of these factors has been met in 

order for a new trial to be warranted.” Commonwealth v. Padillas, 997 A.2d 

356, 363 (Pa. Super. 2010) (citations omitted). In addition, the afterdiscovered “evidence must be producible and admissible.” Small, 189 A.3d at 

972.

Here, the PCRA court addressed Lausell’s underlying claim as follows:

After careful review, the [PCRA c]ourt finds that Lausell 

cannot meet this burden on the content of Lausell’s motion, the 

alleged “after-discovered evidence” he wishes to explore is 

irrelevant to his guilt or innocence. Lausell wishes to gain access 

to documents pertaining to the investigation of a Lancaster police 

officer who, based on the established record, had no involvement 

in the investigation, arrest, prosecution, or trial of Lausell on 

either docket[.] [I]t appears that Lausell hopes to find within the

requested materials some indications or evidence he might use to 

impugn the character and good name of ... the lead law 

enforcement officer who actually did participate in the 

investigation and prosecution of Lausell’s criminal endeavors. 

Given the total lack of a connection between [the officer in 

question] and Lausell’s case, along with the purely speculative 

nature of Lausell's allegations regarding [the detective’s] 
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supposed misconduct, the [PCRA c]ourt cannot and will not grant 

discovery. 

Even assuming, based on the limited information Lausell has 

provided, that there may be statements about [the detective] 

somewhere in the files relating to [the officer], the only possible 

use of the type of evidence Lausell seeks would be impeachment 

of [the detective’s] credibility. This type of evidence fails to satisfy 

the standard for granting PCRA relief or a new trial. Therefore,

Lausell’s motion to amend his PCRA will be denied.

PCRA Court Opinion, 5/20/22, at 14 (citation omitted).

We agree with the PCRA court’s analysis and conclude that Lausell’s 

underlying claim in his motion to amend the PCRA petition is without merit.

See id.; see also Small, 189 A.3d at 972. Accordingly, the PCRA court did 

not err in denying relief on Lausell’s PCRA petition. 

Upon our independent review of the record, we conclude that the PCRA 

petition is without merit, and that Attorney Bardo is entitled to withdraw under 

the precepts of Turner/Finley. 

Application to Withdraw as Counsel granted. Orders affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 11/14/2022