J-S04024-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

*Former Justice specially assigned to the Superior Court.

COMMONWEALTH OF PENNSYLVANIA,

Appellee

v.

JERMAINE SHOCKLEY,

Appellant

: IN THE SUPERIOR COURT OF 

: PENNSYLVANIA

:

:

:

:

:

:

: No. 1042 EDA 2013

Appeal from the PCRA Order Entered March 5, 2013, 

In the Court of Common Pleas of Delaware County, 

Criminal Division, at No. CP-23-CR-0008078-2007.

BEFORE: BENDER, P.J., SHOGAN and FITZGERALD*, JJ.

MEMORANDUM BY SHOGAN, J.: FILED DECEMBER 17, 2014

Appellant, Jermaine Shockley, appeals from the order denying his 

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

42 Pa.C.S. §§ 9541-9546. In addition, counsel has filed an application 

seeking to withdraw. We grant counsel’s application to withdraw and affirm 

the order of the PCRA court.

The trial court summarized the facts of this case as follows:

Ronald Carter was selling drugs at 10th and Potter Street in 

the early morning hours of February 2, 2006. [Appellant] and 

[his brother, Michael Shockley (“Michael”)] were selling drugs at 

the same corner and carrying guns. After midnight, [Hooks, a 

rival drug dealer,] arrived and said to [Appellant] and [Michael] 

that “it was all over ... that they ain’t going to hustle out there....” 

Hooks intended this to mean that the corner at 10th and Potter 

Streets was his sales territory, [Appellant’s] and [Michael’s] 
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“shift” for selling drugs had ended, and it was now his (Hooks’) 

“shift.” [Appellant] and [Michael] argued with Hooks but then 

left the scene to smoke PCP in a nearby house. Hooks entered 

another house.

Sensing danger, Carter walked away toward his house. 

Subsequently, when Hooks emerged from the house, Carter saw 

[Appellant] and [Michael] shooting at Hooks while Hooks 

attempted to run away. Hooks ran into an alley and fell, but 

[Appellant] stood almost directly over him and continued 

shooting even as Hooks cried: “You all going to kill me now?”

Hooks’ aunt, Kathleen Davis, saw [Appellant] and another 

man standing over Hooks and shooting him multiple times. She 

then saw [Appellant] and the other man (whom she later learned 

was [Michael]) run away from the crime scene.

A third witness, Victoria Brown, testified that on the night 

of the shooting, she was talking to Hooks at 10th and Potter 

Streets when [Appellant] and [Michael] said “something 

disrespectful” to her. Hooks told [Appellant] and [Michael] that 

“it wasn’t nice to talk to an adult like that....” Brown turned the 

corner and heard gunshots moments later. She then saw Hooks 

lying on the ground. Brown later picked [Appellant] out of photo 

arrays as an individual involved in Hooks’ homicide.

After the shooting, [Appellant] told Carter that Hooks 

“deserved it. He was a rat.” Carter did not tell the police about 

any of these events for “quite a few months” due to fear that he 

would suffer the same fate as Hooks if he talked.

Raymond Holmes testified that [Appellant] told him that 

the following took place: on the night of the murder, he 

[Appellant] and [Michael] were smoking PCP with another male, 

Assad, and two women. [Appellant] told the others that “they 

were going to show them who the real [expletive] were in the 

neighborhood, who the real gangsters were.... He said, you 

know, they were basically hyping themselves up.” Assad gave 

[Appellant] a .45 automatic handgun and showed [Appellant] 

that there was a live round in its chamber. [Appellant] put the 

gun in his pants and went outside with [Michael]. Hooks was 

outside on 10th Street. [Appellant] and [Michael] ran towards 
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Hooks and started shooting. [Appellant] admitted that while 

Hooks was lying on the ground, he walked up and shot him two 

more times. [Appellant, Michael,] and Assad drove to Aston. 

During the trip, [Appellant] brandished this gun and threatened 

to kill Assad, but [Michael] talked him out of it[,] and Assad 

promised not to tell about Hooks’ murder. [Appellant] later 

drove past the scene of the crime, exultant about his deed: 

“[W]hen they rolled past, they rolled past a memorial, 

and...there was people outside with teddy bears or whatever, 

and it was marked off. And [Appellant] said he was just laid 

back in the car, like—relishing it. Like, yeah, I did that. That’s 

my work.” He then visited a female cousin, who embraced him 

and said “yeah, I heard about what you did, and yeah, you got 

that [expletive], and you put work in. Yeah, my little cousin, the 

[gangster]....” Subsequently, when Carter testified against 

[Appellant] at a preliminary hearing, [Appellant] asked Holmes 

to “lie for [Appellant] and give a statement to [Appellant’s] 

lawyer that Ron [Carter] told [Holmes] that he never saw what 

happened.” Holmes gave this statement to a defense 

investigator but later decided to disclose [Appellant’s] 

confession.

The Commonwealth’s forensic pathologist, Frederic 

Hellman, M.D., testified that Hooks died from multiple gunshot 

wounds, and that the manner of death was homicide.

Trial Court Opinion, 11/24/09, at 2-5 (citations to record omitted).

On June 12, 2009, a jury convicted Appellant of first-degree murder 

and a firearms violation. On July 27, 2009, the trial court sentenced 

Appellant to serve a term of life in prison without parole for the first-degree 

murder conviction and a concurrent term of incarceration of three and onehalf to seven years for the firearms violation. We affirmed Appellant’s 

judgment of sentence, and, on August 8, 2011, our Supreme Court denied 

Appellant’s petition for allowance of appeal. Commonwealth v. Shockley, 
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11 A.3d 1016 (Pa. Super. 2010) (unpublished memorandum), appeal 

denied, 26 A.3d 483 (Pa. 2011).

Subsequently, on May 17, 2012, Appellant filed a timely pro se PCRA 

petition. The PCRA court appointed PCRA counsel on May 21, 2012. An 

amended PCRA petition was filed by PCRA counsel on January 4, 2013.1 On 

March 5, 2013, the PCRA court entered an order dismissing Appellant’s PCRA 

petition. Although PCRA counsel did not move to withdraw his appearance, 

the March 5, 2013 order of the PCRA court also stated the following, sua 

sponte:

2. The appearance of Scott Galloway, Esquire, as counsel for 

[Appellant] is withdrawn upon entry of this Order.

Order, 3/5/13, at 1. Thereafter, Appellant filed a timely pro se notice of 

appeal.

 

1 As this court explained in Commonwealth v. Markowitz, 32 A.3d 706 

(Pa. Super. 2011):

Amended petitions are required on first-time PCRA cases, 

Commonwealth v. Tedford, 566 Pa. 457, 781 A.2d 1167, 

1171 (Pa. 2001), and the PCRA court is only permitted to 

address issues raised in a counseled petition. See 

Commonwealth v. Pursell, 555 Pa. 233, 724 A.2d 293, 302 

(Pa. 1999) (“We will not require courts considering PCRA 

petitions to struggle through the pro se filings of defendants 

when qualified counsel represent those defendants.”); see also 

Commonwealth v. Jette, 23 A.3d 1032 (Pa. 2011) (discussing 

bar against hybrid representation during PCRA review).

Markowitz, 32 A.3d at 713 n.5.
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On April 8, 2014, this Court filed a memorandum decision remanding 

this matter to the PCRA court for appointment of counsel to handle 

Appellant’s PCRA appeal. In addition, this Court directed that appointed 

counsel was to file a Pa.R.A.P. 1925(b) statement and that the PCRA court 

was to prepare a Pa.R.A.P. 1925(a) opinion.

On April 14, 2014, the PCRA court reappointed Scott Galloway to serve 

as counsel for Appellant. Appointed counsel filed a Pa.R.A.P. 1925(b) 

statement on June 18, 2014. The PCRA court then issued its Pa.R.A.P. 

1925(a) opinion on June 25, 2014.

On August 22, 2014, PCRA counsel filed a motion to withdraw as 

counsel; he also filed with this Court a sufficient Turner/Finley2 document.3

When counsel seeks to withdraw representation in a collateral appeal, the 

following conditions must be met:

 

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

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

3 We note with disapproval the fact that counsel for Appellant includes in the 

Turner/Finley letter a discussion pertaining to the timeliness of the instant 

PCRA petition and concludes that the PCRA petition was not timely filed. 

Likewise, the Commonwealth’s appellate brief to this Court contains a 

discussion addressing the timeliness of the instant PCRA petition. We 

presume PCRA counsel and the Commonwealth were confused as to the 

timing of when Appellant’s judgment of sentence became final and the actual 

filing of the instant PCRA petition. However, as previously stated, the 

instant PCRA petition was timely filed. This confusion on the part of PCRA 

counsel has not hindered our review, nor altered our ultimate decision that 

the issue preserved in the amended PCRA petition, and raised in the 

Pa.R.A.P. 1925(b) statement lacks merit.
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1) As part of an application to withdraw as counsel, PCRA 

counsel must attach to the application a “no-merit” letter[;]

2) PCRA counsel must, in the “no-merit” letter, list each claim 

the petitioner wishes to have reviewed, and detail the nature 

and extent of counsel’s review of the merits of each of those 

claims[;]

3) PCRA counsel must set forth in the “no-merit” letter an 

explanation of why the petitioner’s issues are meritless[;]

4) PCRA counsel must contemporaneously forward to the 

petitioner a copy of the application to withdraw, which must 

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

statement advising the PCRA petitioner that, in the event the 

trial 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;

5) The court must conduct its own independent review of the 

record in light of the PCRA petition and the issues set forth 

therein, as well as of the contents of the petition of PCRA 

counsel to withdraw; and

6) The court must agree with counsel that the petition is 

meritless.

Commonwealth v. Daniels, 947 A.2d 795, 798 (Pa. Super. 2008) (internal 

punctuation marks omitted) (citing Commonwealth v. Friend, 896 A.2d 

607, 615 (Pa. Super. 2006)).

In the present case, counsel has complied with the requirements for 

withdrawal from a collateral appeal. In the motion filed with this Court, 

counsel alleged that he has reviewed the case, evaluated the issues, and 

concluded that, as expressed in the no merit letter, the appeal lacks merit. 

Counsel has also listed the issue relevant to this appeal, and explained why, 
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in his opinion, it is without merit. In addition, counsel has averred that he 

has sent to Appellant a copy of his motion to withdraw and the no merit 

letter, which advises Appellant of his right to proceed pro se or through 

privately retained counsel. Thus, we will allow counsel to withdraw if, after

our review, we conclude that the issue relevant to this appeal lacks merit.

We have discerned the following issue, which was presented by PCRA 

counsel on behalf of Appellant in the Pa.R.A.P. 1925(b) statement:

1. Was the [PCRA] Court in error for dismissing 

[Appellant’s Amended P[PCRA] Petition in that he was sixteen 

(16) years of age when committing the offense to which he was 

convicted (First Degree Murder) pursuant to Miller v. Alabama?

Pa.R.A.P. 1925(b) Statement, 6/18/14, at 1. In support of this issue on 

appeal, Appellant purports to argue that the United State Supreme Court’s 

holding in Miller v. Alabama, ___ U.S. ___, 132 S.Ct. 2455 (2012), 

wherein it held a mandatory sentence of life without the possibility of parole 

imposed on a juvenile convicted of a homicide offense is unconstitutional, 

rendered Appellant’s sentence unconstitutional because Appellant was 

sixteen years old, and thus a minor at the time of his offense.

Our standard of review of an order denying PCRA relief is whether the 

record supports the PCRA court’s determination and whether the PCRA 

court’s determination is free of legal error. Commonwealth v. Phillips, 31 

A.3d 317, 319 (Pa. Super. 2011) (citing Commonwealth v. Berry, 877 

A.2d 479, 482 (Pa. Super. 2005)). The PCRA court’s findings will not be 
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disturbed unless there is no support for the findings in the certified record. 

Id. (citing Commonwealth v. Carr, 768 A.2d 1164, 1166 (Pa. Super. 

2001)).

In Miller, the United States Supreme Court held that sentencing a 

juvenile convicted of a homicide offense to mandatory life imprisonment 

without parole violates the Eighth Amendment’s prohibition against cruel and 

unusual punishment. Accordingly, such sentences cannot be imposed unless 

a judge or jury first considers mitigating circumstances. Miller, 132 S.Ct. at 

2475.4 However, the Pennsylvania Supreme Court determined that Miller

does not apply retroactively to an inmate, convicted as a juvenile, who is 

serving a sentence of life imprisonment without the possibility of parole and 

who has exhausted his direct appeal rights and is proceeding under the 

PCRA. Commonwealth v. Cunningham, 81 A.3d 1, 11 (Pa. 2013). 

Furthermore, we observe that on June 9, 2014, the United States Supreme 

Court declined to grant certiorari in Cunningham. Cunningham v. 

Pennsylvania, ___ U.S. ___, 134 S.Ct. 2724 (2014). Thus, the 

Pennsylvania Supreme Court’s decision in Cunningham is final and binding. 

Accordingly, although Appellant was sixteen years old at the time he 

 

4 We observe that on October 15, 2012, effective immediately, the 

Pennsylvania Legislature amended 18 Pa.C.S. § 1102(a)(1) (first-degree 

murder) and (b) (second-degree murder), to provide sentencing standards 

for juvenile offenders convicted of first- and second-degree murder after 

June 24, 2012, so as to comply with Miller.
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committed the underlying murder, Miller is inapplicable as it does not apply 

retroactively to Appellant’s PCRA petition. Appellant is not entitled to relief 

on this issue. Cunningham.

In summary, it is our determination that Appellant failed to present an 

issue warranting relief. Also, having determined after independent review of 

the record that the issue raised does not support a grant for relief, we allow 

counsel to withdraw.

Motion to withdraw granted. Order affirmed. Jurisdiction relinquished.

Justice Fitzgerald joins this Memorandum.

Judge Bender files a Concurring Memorandum in which Justice 

Fitzgerald joins.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/17/2014