J-S47031-20

*Retired Senior Judge assigned to the Superior Court.

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,

 Appellee

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GARY R. KLINGER,

 Appellant

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IN THE SUPERIOR COURT OF

PENNSYLVANIA

 

 No. 319 MDA 2020

Appeal from the PCRA Order Entered December 12, 2019

in the Court of Common Pleas of Dauphin County 

Criminal Division at No(s): CP-22-CR-0002081-2008

BEFORE: STABILE, J., NICHOLS, J. and STRASSBURGER, J.* 

MEMORANDUM BY STRASSBURGER, J.: FILED FEBRUARY 10, 2021

Gary R. Klinger (Appellant) appeals from the December 12, 2019 order

dismissing his petition filed pursuant to the Post Conviction Relief Act 

(PCRA), 42 Pa.C.S. §§ 9541-9546.

1 Counsel has filed a petition to withdraw 

and a brief pursuant to Anders v. California, 386 U.S. 738 (1967), 

and Commonwealth v. McClendon, 434 A.2d 1185 (Pa. 1981).2 Before 

 

1 Appellant’s underlying PCRA petition also collaterally attacked his 

convictions at docket number 4142 of 208, which were part of his negotiated 

plea agreement with the instant docket number. We note that Appellant has 

only filed a notice of appeal at docket number 2081 of 2008.

2

In this Court, counsel filed an Anders brief seeking to withdraw as counsel 

on appeal.

A Turner/Finley no-merit letter, however, is the appropriate 

filing. See Commonwealth v. Turner, [544 A.2d 927 (Pa. 

1988)]; Commonwealth v. Finley, [550 A.2d 213 (Pa. Super. 

1988)] (en banc). Because an Anders brief provides greater 

(Footnote Continued Next Page)
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counsel may withdraw under the PCRA, we must determine if counsel has 

complied with the technical requirements of Turner and Finley.

Turner/Finley counsel 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 the 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 “nomerit” 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.

If counsel fails to satisfy the foregoing technical prerequisites 

of Turner/Finley, the court will not reach the merits of the 

underlying claims but, rather, will merely deny counsel’s request 

to withdraw. Upon doing so, the court will then take appropriate 

steps, such as directing counsel to file a proper Turner/Finley 

request or an advocate’s brief.

However, where counsel submits a petition and no-merit letter 

that do 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. By contrast, if the claims appear to 

have merit, the court will deny counsel’s request and grant 

relief, or at least instruct counsel to file an advocate’s brief.

Commonwealth v. Wrecks, 931 A.2d 717, 721 (Pa. Super. 2007) 

(citations omitted).

(Footnote Continued) _______________________

protection to a defendant, this Court may accept an Anders

brief in lieu of a Turner/Finley letter. Commonwealth v. 

Fusselman, 866 A.2d 1109, 1111 n.3 (Pa. Super. 2004).

Commonwealth v. Widgins, 29 A.3d 816, 817 n.2 (Pa. Super. 2011).
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In counsel’s petition to withdraw, she states that she will furnish 

Appellant with a copy of the Anders brief upon filing, and includes a copy of 

the letter she sent to Appellant. Petition to Withdraw, 7/31/2020, at ¶ 6, 

Exhibit A. However, other than counsel’s statement and the addressing of 

the letter to Appellant, nothing in the letter, petition to withdraw, or certified 

record confirms that counsel contemporaneously served Appellant with 

copies of the letter, petition to withdraw, and Anders brief. Instead, the 

proofs of service attached to counsel’s filings indicate service on the 

Commonwealth alone, and no proof of service was included with the letter 

appended to the petition to withdraw. Thus, counsel has not complied with 

the Turner/Finley notice requirements. 

Accordingly, we deny counsel’s petition to withdraw and direct counsel 

to send a copy of the letter, petition to withdraw, and Anders brief to 

Appellant with amended certificates demonstrating proper service on 

Appellant and the Commonwealth. 

Petition to withdraw as counsel denied. Panel jurisdiction retained.