J-S29013-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

CHARLES HOUSER, 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 3865 EDA 2017

Appeal from the PCRA Order October 23, 2017

In the Court of Common Pleas of Delaware County 

Criminal Division at No(s): CP-23-CR-0006793-2015

BEFORE: PANELLA, J., MURRAY, J., and STEVENS*, P.J.E.

MEMORANDUM BY PANELLA, J. FILED SEPTEMBER 14, 2018

Charles Houser appeals from the order entered in the Delaware County 

Court of Common Pleas, which dismissed his petition filed pursuant to the Post 

Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. Further, Scott D. 

Galloway, Esquire, has filed an application to withdraw from representation 

and an Anders brief.1 We affirm and grant Attorney Galloway leave to 

withdraw. 

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* Former Justice specially assigned to the Superior Court. 

1 Attorney Galloway has filed a brief pursuant to Anders v. California, 386 

U.S. 738 (1967), apparently in the mistaken belief that an Anders brief is 

required where counsel seeks to withdraw on appeal following the denial of 

PCRA relief. The dictates of Anders apply only on direct appeal, not on 

collateral review. Counsel files an Anders brief on direct appeal when he 

determines the appeal is “wholly frivolous.” Id., at 744. The appropriate filing 

would have been a Turner/Finley “no-merit” letter. See Commonwealth v. 

Turner, 544 A.2d 927 (Pa. 1988); Commonwealth v. Finley, 550 A.2d 213 
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The relevant facts and procedural history are as follows. Following a 

bench trial, the court convicted Houser of misrepresenting his criminal record 

in connection with his attempt to purchase a firearm and unsworn falsification 

to authorities. The trial court sentenced Houser to 12 to 24 months’ 

incarceration, followed by a probationary term. Houser did not file a direct 

appeal. 

Instead, Houser filed a timely pro se PCRA petition. In his petition, 

Houser alleged trial counsel’s ineffectiveness for failing to challenge his 

inaccurate criminal history at trial and file a direct appeal as requested. The 

PCRA court appointed Attorney Galloway as PCRA counsel. After reviewing the 

record, Attorney Galloway filed a petition to withdraw as counsel along with a 

letter asserting that there was no merit to either of Houser’s contentions. 

However, because the PCRA court determined that Houser’s petition raised a 

question of fact regarding whether Houser asked trial counsel to file an appeal, 

the court denied Attorney Galloway’s request to withdraw and scheduled an 

evidentiary hearing on the issue.

2

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(Pa. Super. 1988) (en banc). Regardless, because an Anders brief provides 

greater protection to a defendant than a Turner/Finley no-merit letter, this 

Court may accept an Anders brief in lieu of a Turner/Finley letter. See 

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

2

In this order, the PCRA court indicated its intent to dismiss Houser’s other 

claim, that trial counsel was ineffective for failing to challenge the accuracy of 

his criminal history, without a hearing. See Order, 7/18/17. The PCRA court 

ultimately dismissed this claim. See Order, 10/23/17. This claim is not at issue 

in this appeal. 
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At the hearing, Houser testified that James, Wright, Esquire, 

represented at him trial and sentencing. See N.T., PCRA Hearing, 10/20/17, 

at 5. Prior to sentencing, Houser claimed he met with Attorney Wright and 

was informed that his sentencing “paperwork” was “all screwed up.” Id., at 

5-6, 8. Based upon this information, Houser asserted he told Attorney Wright

to appeal his sentence. See id., at 6. However, Houser later discovered

Attorney Wright did not appeal his sentence as requested. See id., at 6-7. 

Attorney Wright testified at the hearing. While he confirmed 

representing Houser during his trial and sentencing, he did not recall having 

a conversation about sentencing “paperwork” with Houser prior to sentencing. 

See id., at 11-12. Further, Attorney Wright testified that it was his practice 

to note in a client’s file when an appeal had been requested. See id., at 12-

13. However, Attorney Wright indicated that there was no notation in Houser’s 

file that he ever requested an appeal. See id., at 13-14. 

At the conclusion of the hearing, the PCRA court indicated that it found 

Attorney Wright’s testimony that Houser did not request an appeal to be 

credible. See id., at 15. The PCRA court disbelieved Houser. Therefore, the 

court denied Houser’s PCRA petition. Houser filed a timely appeal. Attorney 

Galloway has filed a petition to withdraw on appeal as well as an Anders brief. 

Prior to addressing the merits of Houser’s requested appeal, we must 

first examine Attorney Galloway’s request to withdraw. Attorney Galloway’s 

brief more closely resembles an advocate’s brief than an Anders brief. See 

Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa. 2009) (articulating 
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Anders requirements). Attorney Galloway, however, has indicated he sent 

Houser a copy of the brief, the petition to withdraw, and a letter informing 

Houser of his right to proceed pro se or with new counsel. See 

Commonwealth v. Daniels, 999 A.2d 590, 594 (Pa. Super. 2010) (providing 

that counsel must inform client by letter of rights to proceed once counsel 

moves to withdraw and append a copy of the letter to the petition). Houser 

has not filed a response to either of Attorney Galloway’s filings. 

The brief may not meet the necessary technical requirements of Anders

and Santiago, but under the circumstances of this case, we need not remand 

for the preparation of a proper brief. Houser’s issue on appeal is based solely 

on the PCRA court’s credibility determination, and our resolution of this issue 

would not be aided, in any meaningful way, by a new filing in compliance with 

Turner/Finley. 

“On appeal from the denial of PCRA relief, our standard and scope of 

review is limited to determining whether the PCRA court’s findings are 

supported by the record and without legal error.” Commonwealth v. 

Edmiston, 65 A.3d 339, 345 (Pa. 2013) (citation omitted). The PCRA court’s 

findings will not be disturbed unless the certified record lacks support for the 

findings. See Commonwealth v. Carr, 768 A.2d 1164, 1166 (Pa. Super. 

2001). “Further, the PCRA court’s credibility determinations are binding on 

this Court, where there is record support for those determinations.” 

Commonwealth v. Anderson, 995 A.2d 1184, 1189 (Pa. Super. 2010) 

(citation omitted).
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Houser’s sole claim on appeal is that trial counsel rendered ineffective 

assistance when he failed to file Houser’s requested direct appeal.

To succeed on this claim, Houser must establish, by pleading and 

proving, that the underlying issue has arguable merit; that counsel’s actions 

lacked an objective reasonable basis; and that actual prejudice resulted from 

counsel’s act or failure to act. See Commonwealth v. Rykard, 55 A.3d 1177, 

1190 (Pa. Super. 2012). “Generally, if counsel ignores a defendant’s request 

to file a direct appeal, the defendant is entitled to have his appellate rights 

restored.” Commonwealth v. Spencer, 892 A.2d 840, 842 (Pa. Super. 

2006) (citing Commonwealth v. Lantzy, 736 A.2d 564 (Pa. 1999)). This is 

because “where there is an unjustified failure to file a requested direct appeal, 

the conduct of counsel falls beneath the range of competence demanded of 

attorneys in criminal cases” and such failing constitutes prejudice per se. 

Lantzy, 736 A.2d at 572 (footnote omitted). However, “relief is only 

appropriate where the petitioner pleads and proves that a timely appeal was 

in fact requested and that counsel ignored that request.” Spencer, 892 A.2d 

at 842 (citation omitted).

Here, Houser pled his claim in his PCRA petition and attempted to prove 

this claim by testifying that he requested Attorney Wright file a direct appeal 

on his behalf. However, Attorney Wright testified that he had no recollection 

of this request. In ruling against Houser, the PCRA court accepted Attorney 

Wright’s testimony as credible and accurate—and squarely rejected Houser’s 

version of events. See N.T., PCRA Hearing, 10/20/17, at 15. See also PCRA 
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Court’s Opinion, 1/19/18, at 6. The record supports this credibility 

determination. Thus, we are bound by that finding. See Anderson, 995 A.2d 

at 1189. 

As the record contradicts Houser’s assertion that trial counsel ignored 

his timely request to file a direct appeal, we affirm the PCRA court’s order 

dismissing his PCRA petition and we grant Attorney Galloway’s petition to 

withdraw as counsel. Our independent review of the certified record does not 

reveal any other meritorious issues. 

Order affirmed. Petition to withdraw as counsel granted. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 9/14/18