J-S10016-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

DANA H.D. MAXWELL 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 2613 EDA 2021

Appeal from the PCRA Order Entered December 1, 2021

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

No(s): CP-51-CR-0004736-2013

BEFORE: PANELLA, P.J., LAZARUS, J., and STABILE, J.

MEMORANDUM BY LAZARUS, J.: FILED MAY 08, 2023

Dana H.D. Maxwell appeals from order, entered in the Court of Common 

Pleas of Philadelphia County, dismissing, without a hearing, his petition fled 

pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. 

In addition, counsel for Maxwell has filed with this Court a motion to 

withdraw.1 After our review, we affirm the PCRA court’s order and grant 

counsel’s petition to withdraw. 

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1 Counsel filed a brief entitled, “Anders/McClendon Brief for Appellant.” 

Counsel indicated that “[a]s this is a direct appeal from an order resolving a 

petition seeking relief pursuant to the PCRA, this Anders/McClendon brief is 

submitted pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988) 

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

To clarify, an Anders brief is filed when seeking to withdraw in a direct appeal. 

An appeal from an order denying post-conviction relief is a collateral appeal, 

and the proper mechanism for withdrawal on appeal from the denial of a PCRA 

petition is a Turner/Finley no-merit letter. See Turner, supra; Finley, 

supra. However, because an Anders brief provides greater protection to a 

(Footnote Continued Next Page)
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In January 2015, a jury convicted Maxell of attempted burglary, criminal 

trespass, and possession of an instrument of crime.2 The sentencing court 

imposed an aggregate sentence of 12 1⁄2 to 25 years in prison.3 Maxwell filed 

post-sentence motions, which were denied by operation of law on April 12, 

2016. Maxwell did not file a direct appeal. 

On June 8, 2016, Maxwell filed a timely pro se PCRA petition seeking 

reinstatement of his appellate rights nunc pro tunc. The court appointed Todd

Moser, Esquire, to represent Maxwell, and Maxwell’s appellate rights were 

reinstated. On direct appeal, this Court affirmed Maxell’s judgment of 

sentence. Commonwealth v. Maxwell, 2678 EDA 2016 (Pa. Super. filed 

Jan. 7, 2020) (unpublished memorandum decision). Maxwell did not seek 

review in the Pennsylvania Supreme Court. 

On December 23, 2020, Maxwell filed a timely pro se petition seeking 

PCRA relief. The court appointed Andres Yalon, Esquire, to represent Maxwell. 

Attorney Yalon filed a petition to withdraw and a Turner/Finley no-merit 

letter. The PCRA court issued notice of intent to dismiss without a hearing

pursuant to Pa.R.Crim.P. 907 and Maxwell filed a response. On December 1, 

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criminal appellant, we may accept an Anders brief in lieu of a Turner/Finley

no-merit letter. See Commonwealth v. Widgens, 29 A3d 816, 817 n.2 (Pa. 

Super. 2011); Commonwealth v. Fusselman, 866 A.2d 1109, 1111 n.3 (Pa 

Super. 2004).

2 Todd R. Fiore, Esquire, represented Maxell at trial.

3 Vazken Zerounian, Esquire, represented Maxell at sentencing. 
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2021, the PCRA court dismissed Maxell’s petition and granted Attorney Yalon’s 

petition to withdraw.

Maxwell filed a timely pro se appeal to this Court on December 8, 2021. 

On June 7, 2022, pursuant to Pa.R.Crim.P. 122, the court appointed current

counsel, Michael Parkinson, Esquire, to represent Maxwell on collateral appeal, 

and issued an order pursuant to Pa.R.A.P. 1925(b). Maxwell did not file a Rule 

1925(b) concise statement of error relied on for appeal. The PCRA court, 

however, acknowledged that the delay in issuing the order was a result of a 

breakdown in the court operations and, therefore, it relied on Maxwell’s PCRA 

petition to determine the issues Maxwell wished to raise on appeal. On 

November 22, 2022, Attorney Parkinson filed a motion to withdraw from 

representing Maxwell on collateral appeal.

Before reviewing the merits of this appeal, we must determine whether 

counsel has satisfied the procedural requirements for withdrawal from his 

representation. See Commonwealth v. Walters, 135 A.3d 589, 591 (Pa. 

Super. 2016). Our Supreme Court has stated that competent counsel must 

independently review the record before withdrawal shall be permitted. 

Turner, supra at 928, citing Pennsylvania v. Finley, 481 U.S. 551, 558 

(1987). Such independent review requires proof of: (1) a “no-merit” letter 

from PCRA counsel detailing the nature and extent of counsel’s review; (2) 

the “no-merit” letter by PCRA counsel listing each issue the petitioner wished 

to have reviewed; and (3) PCRA counsel’s explanation, in the “no-merit” letter, 

as to why the petitioner’s issues are meritless. Commonwealth v. Pitts, 
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981 A.2d 875, 876 n.1 (Pa. 2009); Commonwealth v. Rykard, 55 A.3d 

1177, 1184 (Pa. Super. 2012). Additionally, the PCRA court or the appellate 

court must independently review the record and agree that the petition was 

meritless. See id. 

In Commonwealth v. Friend, 896 A.2d 607 (Pa. Super. 2006), this 

Court announced an additional prerequisite requirement for counsel seeking 

to withdraw in collateral proceedings:

that PCRA counsel who seeks to withdraw must 

contemporaneously serve a copy on the petitioner of counsel’s 

application to withdraw as counsel[] and must supply to the 

petitioner both a copy of the “no-merit” letter and a statement 

advising the petitioner that, in the event that the [C]ourt grants 

the application of counsel to withdraw, he or she has the right to 

proceed pro se or with the assistance of privately retained counsel.

Id. at 614.4

Counsel has complied with the procedural requirements. See Petition 

to Withdraw, 11/22/22, at ¶¶ 4-9; Counsel’s Letter to Maxwell, 11/22/22. 

We, therefore, proceed to our review of the following issue: “Did the PCRA 

court err when it dismissed Maxwell’s PCRA petition without a hearing as not 

raising a meritorious claim under the PCRA?” Anders Brief, at 4. In his PCRA 

petition, Maxwell raised the following issues: (1) sufficiency of the evidence 

supporting each of his convictions; (2) trial counsel’s ineffectiveness for failing 

to challenge “other crimes evidence” presented by the Commonwealth 

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4 Our Supreme Court overruled Friend on other grounds, see Pitts, supra, 

however the additional requirement that counsel provide copies of the relevant 

documentation to the petitioner remains intact. Widgins, 29 A.3d at 818.
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pursuant to Pa.R.E. 404(b); and (3) that the trial judge abused her discretion 

in instructing the jury to continue deliberating after informing the court it was 

a hung jury. 

Our standard of review of a PCRA order is well-settled:

Under the applicable standard of review, we must determine 

whether the ruling of the PCRA court is supported by the 

record and is free of legal error. The PCRA court’s credibility 

determinations, when supported by the record, are binding 

on this Court. However, this Court applies a de novo 

standard of review to the PCRA court’s legal conclusions. 

Commonwealth v. Spotz, 18 A.3d 244, 259 (Pa. 2011) (citations omitted).

For the following reasons, we agree with counsel’s assessment that the 

issues are meritless. Maxwell’s claims are either not cognizable under the 

PCRA, waived, or previously litigated and, therefore, he is not eligible for relief. 

See 42 Pa.C.S.A. § 9543(a) (setting forth eligibility requirements for PCRA 

relief); see also id. at § 9544(a), (b) (previous litigation and waiver).

In his first claim, Maxwell challenges the sufficiency of the evidence for 

each of his convictions. The issue of sufficiency of the evidence does not rise 

to constitutional stature and is not cognizable in a PCRA proceeding. See

Commonwealth v. Bell, 706 A.2d 855, 861 (Pa. Super. 1998); see also 

Commonwealth v. Price, 876 A.2d 988, 989 (Pa. Super. 2005) (challenge 

to sufficiency of evidence fails to raise cognizable claim under PCRA); 42 

Pa.C.S.A. §§ 9543(a)(2)(i)-(viii).

In his second issue, Maxwell claims that trial counsel was ineffective for 

failing to challenge “other crimes evidence” presented by the Commonwealth 
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pursuant to Pa.R.E. 404(b). Maxwell raised the issue of “other crimes 

evidence” on direct appeal to this Court. See Commonwealth v. Maxwell, 

supra at 4-7. Maxwell did not seek discretionary review of this Court’s 

decision in the Pennsylvania Supreme Court. Thus, the underlying issue has 

been previously litigated. See 42 Pa.C.S.A. § 9543(a)(3); see also id. at § 

9544(a)(2) (issue previously litigated if highest appellate court in which 

petitioner could have had review as matter of right has ruled on merits of 

issue). Maxwell’s attempt to revive the issue by couching it in terms of 

ineffectiveness is of no avail. See Commonwealth v. Rivers, 786 A.2d 923, 

929 (Pa. 2001) (claims for post-conviction relief are not merely direct appeal

claims made at later stage of proceedings, cloaked in boilerplate assertion of 

counsel’s ineffectiveness; in essence, they are extraordinary assertions that 

system broke down). 

Finally, Maxwell claims the court abused its discretion in instructing the 

jury to continue deliberations once it communicated that it was deadlocked.5

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5 When so informed, the trial court gave the following instruction:

Given the amount of time that you’ve spent thus far in trying to 

come to a decision, there really has not been sufficient time for 

you all to fully consider this matter. You are welcome to additional

information, additional documentation. And, as the judge in this 

matter, I don’t feel you’ve had enough time to fully 

deliberate. So I am charging that you continue your 

deliberations in an attempt to see upon which, if any, of the 

charges you can agree. It isn’t even lunch-time yet, and we 

(Footnote Continued Next Page)
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Maxwell did not raise this claim on direct appeal and, therefore, it is waived. 

See 42 Pa.C.S.A. § 9543(a)(3)(i). 

Based on the foregoing, we conclude that the PCRA properly dismissed 

Maxwell’s petition without a hearing. Furthermore, our independent review of 

the certified record has uncovered no additional meritorious issues. 

Accordingly, we affirm the PCRA court’s order and grant counsel’s petition to 

withdraw.

Order affirmed. Petition to withdraw granted.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 5/8/2023

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have ordered lunch for you. . . . Sometimes you feel a little better 

after getting some food [in] your stomach. 

N.T. Jury Trial, 1/9/15, at 6-7 (emphasis in original). We note that the 

Pennsylvania Supreme Court has approved such instructions—a Spencer

charge—when it is “non-coercive.” See Commonwealth v. Spencer, 275 

A2d 299, 337 (Pa. 1971). A Spencer charge arises in the context of 

deadlocked jury; it is “a non-coercive charge” that “instruct[s] the jurors to 

be true to their convictions, but to reconsider their original views[.]” 

Commonwealth v. Greer, 951 A.2d 346, 378 (Pa. 2008). Were this issue 

not waived, we would find the charge “non-coercive.”