J-S74019-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

ANDREW TIRADO 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1235 EDA 2019

Appeal from the PCRA Order Entered March 28, 2019

In the Court of Common Pleas of Philadelphia County Criminal Division at 

No(s): CP-51-CR-0007276-2009

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

MEMORANDUM BY MURRAY, J.: FILED MARCH 05, 2020

Andrew Tirado (Appellant) appeals from the order denying his petition 

filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-

9546. In this appeal, Appellant’s court-appointed counsel (PCRA Counsel) 

filed a petition to withdraw as counsel and a “Turner/Finley/Anders brief.”1

Because we conclude that PCRA Counsel fulfilled the procedural requirements 

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

____________________________________________

* Former Justice specially assigned to the Superior Court.

1 Counsel filed a brief pursuant to Anders v. California, 386 U.S. 738, 87 

S.Ct. 1396 (1967), apparently in the mistaken belief that an Anders brief is 

required where counsel seeks to withdraw on appeal from the denial of PCRA 

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

this appeal is without merit, we grant PCRA Counsel’s petition to withdraw and 

affirm the PCRA court’s order denying Appellant’s PCRA petition. 

The PCRA court explained:

On March 20, 2009, [Appellant] was arrested and charged with 

murder and related offenses. On June 23, 2010, [Appellant] was 

found guilty by a jury, presided over by the Honorable Rose Marie 

DeFino-Nastasi, of second-degree murder, robbery, criminal 

conspiracy, firearms not to be carried without a license, carrying 

firearms on public streets or public property in Philadelphia, and 

possession of an instrument of crime (“PIC”).

[2]

[Appellant] was sentenced that same date to life imprisonment 

without the possibility of parole for second-degree murder, five to 

ten years imprisonment for robbery, five to ten years 

imprisonment for criminal conspiracy, three and one-half to seven 

years for [firearms not to be carried without a license], two and 

one-half to five years for PIC, and no further penalty for [carrying 

firearms on public streets or public property in Philadelphia]. All 

sentences to run concurrently.

On June 30, 2010, [Appellant] filed a Post-Sentence Motion, which 

was denied on October 28, 2010. On November 12, 2010, 

[Appellant] filed an appeal with the Superior Court. On July 12, 

2013, the Superior Court vacated [Appellant’s] robbery sentence 

and affirmed his judgment of sentence in all other respects.[FN] 5 

On July 22, 2013, [Appellant] filed a petition for allowance of 

appeal with the Pennsylvania Supreme Court, which was denied 

on December 18, 2013.

FN 5 The Superior Court held that because the robbery 

was the underlying felony for the second-degree 

murder conviction, the convictions merged for 

sentencing purposes. Commonwealth v. Tirado, [ 

] 3088 EDA 2010 [(Pa. Super. July 12, 2013) 

(unpublished memorandum)].

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2 18 Pa.C.S.A. §§ 2502(b), 3701(a)(1)(i), 903 and 907.
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PCRA Court Opinion, 5/14/19, at 1-2 (some footnotes omitted). 

On July 29, 2014, Appellant filed a pro se PCRA petition, in which he 

alleged that trial counsel was ineffective. The PCRA court appointed Counsel, 

who filed an amended petition on May 3, 2018. The Commonwealth filed a 

motion to dismiss Appellant’s PCRA petition as meritless on January 10, 2019. 

On February 14, 2019, the PCRA court issued notice of its intent to dismiss 

Appellant’s petition without a hearing pursuant to Rule 907 of the 

Pennsylvania Rules of Criminal Procedure. Appellant did not file a response to 

the court’s notice. On March 28, 2019, the PCRA court issued an order 

formally denying Appellant’s petition and permitting Counsel to withdraw. 

This timely appeal followed.3 

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3 After the PCRA court permitted Counsel to withdraw, PCRA Counsel was 

appointed to represent Appellant on appeal. On April 11, 2019, Appellant filed 

a pro se notice of appeal at docket 1234 EDA 2019. On April 23, 2019, PCRA 

Counsel filed a notice of appeal at docket 1235 EDA 2019. We note that 

Appellant filed his pro se notice of appeal while still represented by Counsel. 

It is well-settled that an appellant does not have a right to proceed both pro 

se and with counsel. Such representation is considered “hybrid” 

representation and is prohibited within the Commonwealth. See 

Commonwealth v. Staton, 184 A.3d 949, 958 (Pa. 2018) (no defendant has 

a constitutional right to self-representation together with counseled 

representation “either at trial or on appeal”); see also Commonwealth v. 

Jette, 23 A.3d 1032, 1036 (Pa. 2011) (citing Pennsylvania’s long-standing 

policy that precludes hybrid representation). Accordingly, this Court 

dismissed Appellant’s pro se appeal as duplicative of the appeal filed by PCRA 

Counsel. See Order, 7/17/19. Appellant filed an application for 

reconsideration on August 6, 2019, upon which this Court sua sponte

reinstated Appellant’s appeal. See Order 8/14/19. PCRA Counsel entered his 

appearance in the pro se appeal and was ordered to show cause why the pro 

se appeal should not be dismissed as duplicative of the counselled appeal. Id. 

PCRA Counsel agreed that the pro se appeal should be dismissed as 
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On August 25, 2019, PCRA Counsel filed a petition to withdraw with this 

Court, attaching his no-merit letter, with notice to Appellant that Appellant

had the right to proceed pro se or retain private counsel. In response, 

Appellant filed a pro se “Petitioner’s Objection to Counsel’s Motion to Withdraw 

and Combined Motion for Appointment of New Counsel.” See Answer to 

Withdraw As Counsel, 8/25/19. In a per curiam order, this Court denied 

Appellant’s request for new counsel and permitted Appellant to file a second 

pro se response to PCRA Counsel’s petition to withdraw. Order, 9/30/19. On 

October 25, 2019, Appellant filed a response to PCRA Counsel’s petition to 

withdraw no-merit letter indicating that he wished to continue with his appeal 

pro se; Appellant’s response did not raise any additional issues for our review.

On appeal, Appellant presents two issues, which we have reordered for 

ease of discussion:

I. Whether trial counsel was ineffective for failing to meet, 

prepare and advise the Appellant adequately as to his 

options of pleading guilty or going to trial?

II. Whether the Court coerced and pressured the Appellant to 

the extent that he could not calmly, rationally, knowingly, 

intelligently and voluntarily make the decision whether he 

should plead guilty or go to trial?

Turner/Finley/Anders Brief at 6.

We review the denial of PCRA relief by “examining whether the PCRA 

court’s findings of fact are supported by the record, and whether its 

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duplicative, and on September 4, 2019, this Court dismissed Appellant's pro 

se appeal. See Order, 9/4/19.
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conclusions of law are free from legal error.” Commonwealth v. Busanet, 

54 A.3d 35, 45 (Pa. 2012). “Our scope of review is limited to the findings of 

the PCRA court and the evidence of record, viewed in the light most favorable 

to the party who prevailed in the PCRA court proceeding.” Id.

As noted above, PCRA Counsel filed in this Court a petition for leave to 

withdraw as counsel and no-merit letter. Before we may review the merits of 

Appellant’s claim, we must determine if PCRA Counsel has satisfied the 

requirements to be permitted to withdraw from further representation. 

Pursuant to Turner/Finley, an “[i]ndependent review of the record by 

competent counsel is required before withdrawal [on collateral review] is 

permitted.” Commonwealth v. Pitts, 981 A.2d 875, 876 n.1 (Pa. 2009). In 

Pitts, our Supreme Court explained that independent review requires proof 

of:

1. A “no merit” letter by PC[R]A counsel detailing the nature and 

extent of his review;

2. The “no merit” letter by PC[R]A counsel listing each issue the 

petitioner wished to have reviewed;

3. The PC[R]A counsel's “explanation”, in the “no merit” letter, of 

why the petitioner’s issues were meritless;

4. The PC[R]A court conducting its own independent review of the 

record; and

5. The PC[R]A court agreeing with counsel that the petition was 

meritless.

Id. (citation and brackets omitted).

Additionally:
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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] 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.

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

omitted).

Upon review of PCRA Counsel’s petition to withdraw and the appellate 

brief submitted on Appellant’s behalf, we conclude that PCRA Counsel has 

substantially complied with the procedural requirements of Turner and 

Finley, as restated in Pitts. PCRA Counsel identified the claims asserted by 

Appellant, reviewed the merits of those claims and explained why the claims 

lack merit. Finally, PCRA Counsel also represented to this Court that he has 

provided Appellant with notice of his intention to seek permission to withdraw 

from representation, a copy of the appellate brief, and advised Appellant he 

may proceed with privately retained counsel or pro se. See Application to 

Withdraw as Counsel, 8/25/19. Thus, PCRA Counsel has complied with the 

requirements necessary to withdraw as counsel. We now turn to our
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independent review of Appellant’s PCRA petition to ascertain whether he is 

entitled to relief.

Appellant challenges trial counsel’s effectiveness in relation to 

Appellant’s decision to reject a plea offer and proceed to a jury trial. With 

respect to ineffective assistance of counsel claims, our Supreme Court has 

stated:

It is well-settled that counsel is presumed to have been effective 

and that the petitioner bears the burden of proving counsel’s 

alleged ineffectiveness. Commonwealth v. Cooper, 941 A.2d 

655, 664 (Pa. 2007). To overcome this presumption, a petitioner 

must establish that: (1) the underlying substantive claim has 

arguable merit; (2) counsel did not have a reasonable basis for 

his or her act or omission; and (3) the petitioner suffered 

prejudice as a result of counsel’s deficient performance, “that is, 

a reasonable probability that but for counsel's act or omission, the 

outcome of the proceeding would have been different.” Id. A 

PCRA petitioner must address each of these prongs on appeal. 

See Commonwealth v. Natividad, 938 A.2d 310, 322 (Pa. 

2007) (explaining that “appellants continue to bear the burden of 

pleading and proving each of the Pierce elements on appeal to 

this Court”). A petitioner’s failure to satisfy any prong of this test 

is fatal to the claim. Cooper, 941 A.2d at 664.

Commonwealth v. Wholaver, 177 A.3d 136, 144 (Pa. 2018) (citations 

modified).

In his first issue, Appellant argues that trial counsel was ineffective for 

failing to properly prepare and advise Appellant on his case. Notably, 

Appellant faults trial counsel for failing to meet with him in prison to discuss 

the plea offered by the Commonwealth and to provide Appellant with a 
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personal copy of his discovery package.4 Turner/Finley/Anders Brief at 20-

21. Appellant asserts that “if he had a sufficient amount of time to confer with 

his attorney at the prison and understood . . . the plea negotiations[,] he 

could have been saved from a life sentence without parole . . . .” Id. at 20. 

The PCRA court rejected Appellant’s assertion, noting that during the 

guilty plea colloquy, the court questioned Appellant’s trial counsel regarding 

his level of communication with Appellant. PCRA Court Opinion, 5/14/19, at 

9. Specifically, the court and trial counsel engaged in the following exchange:

THE COURT: Have you been to CFCF to see him?

[Appellant’s trial counsel]: Your Honor, I have not been to CFCF.

I have met with him on multiple occasions, I met with him in this 

building. We had an extended conversation with him before the 

preliminary hearing and we had a preliminary hearing during 

which [the eyewitness’] statement -- this is a statement case.

There were two statements that [the eyewitness] gave and he and 

I reviewed those statements. We have had telephone contact in 

a year-and-a-half since the preliminary hearing; I also represent 

him on another matter. He and I have had conversations over the

telephone and we had that extended meeting prior to the 

preliminary hearing going over what this case was about. He also 

has gone over with me in the intervening year and change the 

issue of this statements, the two statements. We had an

extensive colloquy this morning.

Again, I thought we were ready to go through with a plea. He was 

brought into the building at approximately 11:30 . . . We spent 

an hour and a quarter going over various issues about how to 

dispose of this case including his concerns about knowing the 

details of his case. And since he has now accused me of 

____________________________________________

4 On June 18, 2010, Appellant attended a guilty plea colloquy hearing, during 

which Appellant began to enter an open guilty plea to third-degree murder. 

See generally, N.T., 6/18/10. During the colloquy, however, Appellant chose 

to proceed to trial, rather than enter a guilty plea. Id. at 6.
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ineffectiveness, without saying everything we discussed, I will say 

I am confident that he is comfortable with the details of the 

alleged statement. He may deny that statement should we go to 

the [suppression] motion and at trial, I'm not saying anything 

about that, but as far as knowing what the claim is about [the 

eyewitness] giving two statements, about [the eyewitness’]

testimony – [the eyewitness] testified at the preliminary hearing

. . . . And it’s true, as [Appellant] has observed, [the eyewitness]

has his own problems as a witness. But as far as familiarity with 

the case and familiarity of the risk with a statement that says if it 

is true and believed that [Appellant] had a gun in his hand in the 

back seat as Mr. Torres and he were there with the other people, 

[Appellant], I believe, understands the risk of that statement. And 

he understands, and has for over a year, the nature of what’s in 

that statement and the danger that statement poses.

THE COURT: There’s an eyewitness in the case . . . ?

[Appellant’s trial counsel]: Yes, [the eyewitness] does give a 

conflicting statement where he says [Appellant] was not in the 

car. So it’s true if we go to trial [the eyewitness] has his own 

problems.

THE COURT: But you reviewed all this with [Appellant]?

[Appellant’s trial counsel]: Yes, both over a year ago and 

[Appellant] sat through the preliminary hearing where [the 

eyewitness] appeared live and testified and was thoroughly crossexamined by me and there’s a transcript on that about his lies.

THE COURT: And you went over the discovery with [Appellant]?

[Appellant]: No.

[Appellant’s trial counsel]: Not in great detail.

THE COURT: What’s in discovery? It’s [the eyewitness’] statement 

and [Appellant’s] statement.

[Appellant’s trial counsel]: Yes.

THE COURT: Anything else?

[Appellant’s trial counsel]: Nothing of substance.
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[The Commonwealth]: There’s a great deal of additional 

documentation, but I would agree with counsel that the essence 

of the evidence is [the eyewitness’] statements and [Appellant’s] 

statement. There’s obviously a tremendous bit more discovery 

involving the investigation, 75-48s, ballistics, crime scene, the 

usual things that come along.

THE COURT: I mean, there was ballistics of the crime scene. The 

complainant was shot, where, in the car?

[Appellant’s trial counsel]: Yes.

[The Commonwealth]: The victim is driving the car, the 

eyewitness is in the passenger’s seat of the car. The victim is shot 

by Mr. Torres, a Co-Defendant, who was only apprehended two 

days ago who shot from the rear passenger’s side of the car. 

[Appellant] is alleged to be in the rear driver’s side of the car.

THE COURT: Okay. So there’s no allegations anyways that 

[Appellant] is the shooter in this case.

[The Commonwealth]: Correct. This is the clearest second degree 

murder case that I’ve ever seen.

N.T., 6/18/10, at 6-11.

In rejecting Appellant’s claim, the PCRA court found that Appellant was 

properly advised by trial counsel. Moreover, the PCRA court noted that 

Appellant could not prove the prejudice prong of his ineffectiveness claim 

because Appellant “was advised of the plea offer, rejected the plea offer in 

2010, and has never asserted that he would have accepted the offer, but for 

some specific deficiency by counsel. Instead, [Appellant] merely makes a bald 

assertion that counsel did not fully advise him of his options, which is belied 

by the record.” PCRA Court Opinion, 5/14/19, at 10.
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There is record support for the PCRA court’s credibility determinations 

regarding Appellant’s claim that trial counsel failed to fully advise him about

the plea offered by the Commonwealth. Where there is such support, “we, as 

a reviewing court, are bound by those determinations.” Commonwealth v. 

Abu–Jamal, 720 A.2d 70, (Pa. Super. 1998) (citation omitted); see also 

Commonwealth v. Harmon, 738 A.2d 1023, 1025 (Pa. Super. 1999).

Likewise, we agree with the PCRA court that Appellant would not be able to 

prove prejudice. Because Appellant does not claim that he would have pled 

guilty but for counsel’s failure to properly advise him, he cannot prove 

prejudice. Accordingly, his first issue lacks merit. See Commonwealth v. 

Johnson, 966 A.2d 523, 533 (Pa. 2009) (“A petitioner establishes prejudice 

when he demonstrates ‘that there is a reasonable probability that, but for 

counsel’s unprofessional errors, the result of the proceeding would have been 

different.’”).

In his second claim, Appellant contends that the trial court erred where 

it coerced and pressured Appellant to decline the plea offer and opt to go to 

trial. Appellant asserts that “he was young, immature, emotionally damaged 

and intellectually challenged,” and the trial court “took advantage of his 

vulnerability and more or less made him go to trial.” Turner/Finley/Anders 

Brief at 16. 

At the outset, we recognize that there is a discrete class of claims that 

are properly cognizable under the PCRA, which is statutorily limited to: (1) a 
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recognized violation of either the U.S. Constitution or the Pennsylvania 

Constitution that “so undermined the truth-determining process that no 

reliable adjudication of guilt or innocence could have taken place”; (2) 

ineffective assistance of counsel that “so undermined the truth-determining 

process that no reliable adjudication of guilt or innocence could have taken 

place”; (3) an unlawfully-induced guilty plea; (4) improper government 

obstruction of a petitioner's appellate rights; (5) the unavailability of 

exculpatory evidence at the time of trial that has subsequently become 

available and which “would have changed the outcome of the trial if it had 

been introduced”; (6) the imposition of a sentence greater than the lawful 

maximum; and (7) improper jurisdiction. See 42 Pa.C.S.A. § 9543(a)(2). 

Furthermore, allegations of error advanced under the PCRA must not have 

been either previously litigated or otherwise waived by the petitioner. See 42 

Pa.C.S.A. §§ 9543(3), 9544(a)(2), (b).

Here, a review of the record demonstrates that Appellant could have 

raised this allegation of trial court error before trial, at trial, or during direct 

appeal, but failed to do so. Consequently, Appellant has waived this issue. 

See 42 Pa.C.S.A. § 9543(a)(3); see also 42 Pa.C.S.A. § 9544(b) (“[A]n issue 

is waived if the petitioner could have raised it but failed to do so before trial, 

at trial, during unitary review, on appeal or in a prior state postconviction 

proceeding.”).
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Even if Appellant preserved this issue for review, we would likewise 

conclude that the claim is meritless. The trial court and Appellant engaged in 

the following exchange:

THE COURT: What is it you want?

[Appellant]: I want new counsel.

THE COURT: For what reason?

[Appellant]: For him not letting me know everything I need to

know about my life. I don't think he’s representing me right, you 

know what I’m saying. My life is on the line for something where 

he is not cooperating with me to have me satisfied with what’s 

going on.

THE COURT: Well, he has me satisfied and that’s what counts, 

that he knows what he’s doing and knows what’s going on. He 

was entering into a plea for third degree murder. Second degree 

murder is life if you’re found guilty. He was entering into a plea 

on your behalf to third degree murder, which isn’t life. Even if it’s 

an open guilty plea then I make the determination as to the 

sentence. Now, if you don’t plead guilty, and you have a right to 

do whatever you want, you go to trial. Is [he] charged with 

second or first?

[The Commonwealth]: He’s charged generally.

THE COURT: So that means first and second, but on the 

Commonwealth’s theory of the case the jury is never going to hear 

first. They are going to be charged with second degree murder, 

which is a murder committed in the course of a felony. So if the 

Commonwealth proves that you and your co-conspirator [were] 

robbing the decedent and then somebody shot him, meaning the 

co-conspirator, Torres, is that his name?

[Appellant’s trial counsel]: Yes, Your Honor.

THE COURT: That’s second degree murder, that’s life. These are 

your choices and I’m sure your attorney explained that to you. 

You can plead to third degree murder, I decide the sentence. I 

could not tell you what it would be, I don’t know anything about 
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you or about the case other than what we are talking about now.

Or you can go forward to trial, your attorney filed a motion to 

suppress your statement or statements.

[The Commonwealth]: There’s two.

THE COURT: You’re filing a motion to suppress both.

[Appellant’s trial counsel]: Yes, Your Honor.

THE COURT: And then we would do that today and pick a jury on 

Monday and go to trial. Those are your choices, I’m not removing 

your attorney.

What is your decision?

[Appellant]: Trial.

N.T., 6/18/10, at 11-13.

Consistent with the foregoing, the trial court did not “coerce” or 

“pressure” Appellant into declining the plea offer and going to trial. Rather, 

the trial court explained Appellant’s options – plead guilty to third-degree 

murder or go to trial. Appellant chose to proceed to trial. Accordingly, 

Appellant’s second issue lacks merit.

Order affirmed. Petition to withdraw granted.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 3/5/20